Earlier this month, in Interfaith Community Organization v. Honeywell International, No. 11-3813 (3d Cir. July 8, 2013), the U.S. Court of Appeals for the Third Circuit decided that a defendant in a federal environmental citizen suit may make an offer of judgment under Federal Rule of Civil Procedure 68, at least as to the plaintiff's claim for attorney fees. That may be a change and, if it is, it favors defendants. It may also favor certain kinds of plaintiffs in cases brought by multiple parties.
Most federal environmental statutes include a citizen suit provision. The citizen suit provision allows a party other than the United States with constitutional standing to bring an action against the United States for failure to implement a nondiscretionary duty. The citizen suit provision also authorizes the same set of parties to enforce an obligation under the statute privately when the government has not instituted and diligently prosecuted its own enforcement action. Most statutes provide for recovery by the prevailing party of its litigation costs, including reasonable attorney and expert witness fees.
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