In the Clean Air Act, Congress broadly authorized courts to award reasonable attorney fees to any party whenever the court determines such award is “appropriate.” 42 U.S.C §§ 7604(d) (Citizen Suits), 7607(f) (Administrative Proceedings and Judicial Review).

Nearly thirty years ago, however, the United States Supreme Court decided that, notwithstanding the apparent authority conferred by the Act, a court could not award attorney fees to Sierra Club and Environmental Defense Fund in a case where they lost on all of their claims. Ruckelshaus v. Sierra Club, 463 U.S. 680, 694 (1983). In other words, absent some degree of success on the merits, it is not “appropriate” for a federal court to award attorney’s fees under Sections 304 and 307 of the Act.

On March 21, 2011, the United States Supreme Court denied review of an “environmental search” case out of New Jersey. While a denial of review is not always news, three Justices of the Court – Alito, with Scalia and Thomas – penned a short explanation that is worthy of attention.

In a recent condemnation case, the Oklahoma Court of Civil Appeals issued an opinion that nicely summarizes certain aspects of the law of eminent domain in Oklahoma and provides more guidance about the meaning of the “public purpose” requirement. The court supported its decision with an interesting analogy relating to interstate highways. In Oklahoma Gas & Electric Co.

On February 2, 2011, the U.S. Environmental Protection Agency (“EPA”) issued an “Order Denying Petition for Objection to Permit” in In re Anadarko Petroleum Corp., Frederick Compressor Station, a decision that should finally pave the way for Anadarko Petroleum Corporation (“Anadarko”) to continue to operate its Frederick Compressor Station in Colorado under a minor source operating permit. The EPA’s Order is the latest in a contentious and lengthy struggle that began when the Colorado air permit...

Attention “consultants” – ever been an expert witness? If yes, then you’ve already been involved in expert discovery. If no, your time may be coming. Either way, the last thing any consultant would want is for anything they’ve done – such as an ill-considered e-mail – to hurt a case that went into litigation. So, you need to have a basic understanding of the rules governing expert discovery. Just this month, some rules you might be familiar with have changed . . .