Attorneys' Fees and the Conflict Between Rule 68 and the Clean Water Act's Citizen Suit Provision

Abstract

Environmental “citizen suit” statutes provide incentives for citizens to bring enforcement actions by awarding successful plaintiffs reasonable attorneys’ fees. Defendants have attempted to use Federal Rule of Civil Procedure 68 to block a successful plaintiff’s recovery of attorneys’ fees. Under Rule 68, defendants may offer to allow a judgment to be issued against them for a fixed dollar amount. Plaintiffs may either accept this judgment offer or proceed to trial. If plaintiffs proceed to trial, however, they must receive a judgment more favorable than the offer or pay the defendants’ litigation costs. Defendants argue that the word “costs” as used in Rule 68 applies to attorneys’ fees in addition to other litigation costs. If so, the use of Rule 68 can have a great influence on the economics of citizen suit litigation. This Note explores whether or not Rule 68 should be read to apply to attorneys’ fees in citizen suits under the Clean Water Act and other environmental statutes.