The Wilderness Society v. Rogers C. B. Morton, Secretary of the Interior

495 F.2d 1026, 161 U.S. App. D.C. 446

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 12, 1974
• Docket: 72-1796 to 72-1798
• Status: Published

Opinions

J. SKELLY WRIGHT, Circuit Judge:

Appellants Wilderness Society, Environmental Defense Fund, Inc. and Friends of the Earth request an award of expenses and attorneys’ fees related to the litigation they successfully prosecuted to, bar construction of the trans-Alaska pipeline. See Wilderness Society v. Morton, 156 U.S.App.D.C. 121, 479 F.2d 842, cert. denied, 411 U.S. 917, 93 S.Ct. 1550, 36 L.Ed.2d 309 (1973). A bill of costs has also been filed by The Cordova District Fisheries Union, appellant in No. 72-1798. While the primary issue now before us concerns the propriety of assessing attorneys’ fees against appellee Alyeska Pipeline Service Company, Alyeska has also raised objections to certain expenses in the bill of costs. We agree with the Government, however, that all expenses requested by Wilderness Society et al. are proper, see 28 U.S.C. § 1920 (1970); Ex parte Peterson, 253 U.S. 300, 318, 40 S.Ct. 543, 64 L.Ed. 919 (1920) (Brandéis, J.), and should be divided equally among Alyeska, the State of Alaska, and the United States. As it was not a prevailing party on any issue in its separate suit, Cordova is not entitled to costs. See 28 U. S.C. § 2412 (1970). Cf. Rule 54(d), Fed.R.Civ.P. With respect to the main issue posed, we hold that an award of attorneys’ fees is appropriate and remand the case to the District Court to determine the fees.

I

There have always existed equitable exceptions to the traditional American rule barring recovery of attorneys’ fees by a successful litigant. In eases in which a party has acted in bad faith, assessment of fees properly serves to punish that party’s obdurate behavior. See Hall v. Cole, 412 U.S. 1, 5, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973). Another exception includes cases in which the plaintiff’s suit confers a benefit on the members of an ascertainable class and in which an award of fees will serve to spread the costs of litigation among its beneficiaries. See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970).

Neither of these historic exceptions is applicable here. Appellees’ legal position as to the meaning of the Mineral Leasing Act and relevant administrative regulations, though ultimately rejected by the court, was manifestly reasonable and assumed in good faith, particularly in view of the long administrative practice supporting it. See Wilderness Society v. Morton, supra, 156 U.S.App.D.C. at 143-149, 479 F.2d at 864-870. And although the “common benefit” exception has been given expanded scope in recent cases, compare Hall v. Cole, supra, with Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939), we would have to stretch it totally outside its basic rationale to apply it here. As is discussed more fully below, this litigation may well have provided substantial benefits to particular individuals and, indeed, to every citizen’s interest in the proper functioning of our system of government. But imposing attorneys’ fees on' Alyeska will not operate to spread the costs of litigation proportionately among these beneficiaries, the key requirement of the “common benefit” theory. See Bangor & Aroostook R. Co. v. Brhd of Loc. Firemen & Enginemen, 143 U.S.App.D.C. 90, 101, 442 F.2d 812, 823 (1971).

The Supreme Court has recently indicated, however, that the equitable power of federal courts to award attorneys’ fees when the interests of justice so require is not a narrow power confined to rigid sets of eases. Rather, it “ ‘is part of the original authority of the chancellor to do equity in a particular situation,’ ” Hall v. Cole, supra, 412 U.S. at 5, 93 S.Ct. at 1746, quoting Sprague v. Ticonic National Bank, supra, 307 U.S. at 166, 59 S.Ct. 777, and should be used whenever “ ‘overriding considerations indicate the need for such a recovery.’ ” Id., quoting Mills v. Electric Auto-Lite Co., supra, 396 U.S. at 391-392, 90 S.Ct. at 625.

Recognizing their broad equitable power, some courts have concluded that the interests of justice require fee shifting in a third class of cases where the plaintiff acted as a “ ‘private attorney general,’ vindicating a policy that Congress considered of the highest priority.” Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). See, e. g., Brandenburger v. Thompson, 9 Cir., 494 F.2d 885, decided March 25, 1974); Natural Resources Defense Council v. EPA, 1 Cir., 484 F.2d 1331 (1973); Cooper v. Allen, 5 Cir., 467 F.2d 836 (1972); Donahue v. Staunton, 7 Cir., 471 F.2d 475 (1972), cert. denied, 410 U.S. 955, 93 S.Ct. 1419, 35 L.Ed.2d 687 (1973); Cole v. Hall, 2 Cir., 462 F.2d 777 (1972), affirmed on alternate rationale, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973); Knight v. Auciello, 1 Cir., 453 F.2d 852 (1972); Lee v. Southern Home Sites Corp., 5 Cir., 444 F.2d 143 (1971); United Steelworkers of America v. Butler Manufacturing Co., 8 Cir., 439 F.2d 1110, 1113 (1971); Sierra Club v. Lynn, W.D.Tex., 364 F.Supp. 834, 5 E.R.C. 1745 (1973); Stanford Daily v. Zurcher, N.D.Cal., 366 F.Supp. 18, 23-24 (1973); Harper v. Mayor and City Council of Baltimore, D.Md., 359 F.Supp. 1187, 1218 (1973); Calnetics Corp. v. Volkswagen of America, Inc., C.D.Cal., 353 F.Supp. 1219 (1973); La Raza Unida v. Volpe, N.D.Cal., 57 F.R.D. 94 (1972); Wyatt v. Stickney, M.D.Ala., 344 F.Supp. 387 (1972); NAACP v. Allen, M.D.Ala., 340 F.Supp. 703 (1972); Sims v. Amos, M.D.Ala., 340 F.Supp. 691 (1972); Bradley v. School Board of City of Richmond, E.D.Va., 53 F.R.D. 28 (1971), reversed, 4 Cir., 472 F.2d 318, (1972), cert. granted, 412 U.S. 937, 93 S.Ct. 2773, 37 L.Ed.2d 396 (1973). See also Note, Awarding Attorney and Expert Witness Fees in Environmental Litigation, 58 Corn.L.Rev. 1222, 1237-1246 (1973) .

While this court has not previously had occasion to focus directly on the “private attorney general” rule in attorneys’ fees, it stressed the salient consideration in Freeman v. Ryan, 133 U.S.App.D.C. 1, 3, 408 F.2d 1204, 1206 (1968), when it accompanied an award of attorneys’ fees with the comment:

“Our objective is to proceed in accordance with equitable principles so as to reward the attorneys whose service in stopping an unauthorized payment has been of benefit to the class of private persons involved, and to the public interest in observance by administrative and executive officials of statutory limitations on their authority.”

It is a paramount principle of equity that the court will go much farther both to grant and to withhold relief in furtherance of the public interest than when only private interests are involved. See Virginian Railway Co. v. System Federation No. 40, 300 U.S. 515, 552, 57 S.Ct. 592, 81 L.Ed. 789 (1937), where the Court added that the legislature’s declaration of public interest and policy is “persuasive in inducing courts to give relief.”

We find persuasive the arguments advanced by these courts in adopting a private attorney general exception to the traditional American rule.

“The violation of an important public policy may involve little by way of actual damages, so far as a single individual is concerned, or little in comparison with the cost of vindication * * jf a defendant may feel that the cost of litigation, and, particularly, that the financial circumstances of an injured party may mean that the chances of suit being brought, or continued in the face of opposition, will be small, there will be little brake upon deliberate wrongdoing. In such instances public policy may suggest an award of costs that will remove the burden from the shoulders of the plaintiff seeking to vindicate the public right. * * * ”

Knight v. Auciello, supra, 453 F.2d at 853. In much litigation, whether or not formally designated as a class action, a party sues not only to vindicate his own interests, which often are minor, but to enjoin injuries to a broad class — injuries which may be quite extensive when viewed collectively. See, e. g., Sierra Club v. Morton, 405 U.S. 727, 736-738 & 739 n. 15, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). In such cases, “[i]f successful plaintiffs were routinely forced to bear their own attorneys’ fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts.” Newman v. Piggie Park Enterprises, Inc., supra, 390 U.S. at 402, 88 S.Ct. at 966. When violation of a congressional enactment has caused little injury to any one individual, but great harm to important public interests when viewed from the perspective of the broad class intended to be protected by that statute, not to award counsel fees can seriously frustrate the purposes of Congress. See Hall v. Cole, supra, 412 U.S. at 13-14, 93 S.Ct. 1943. Where the law relies on private suits to effectuate congressional policy in favor of broad public interests, attorneys’ fees are often necessary to ensure that private litigants will initiate such suits. See Lee v. Southern Home Sites Corp., supra, 444 F.2d at 145. Substantial benefits to the general public should not depend upon the financial status of the individual volunteering to serve as plaintiff or upon the charity of public-minded lawyers. See Donahue v. Staunton, supra, 471 F.2d at 483; La. Raza Unida v. Volpe, supra, 57 F.R.D. at 101 & n. 10.

Despite the growing trend to recognize these considerations, at least one court has been reluctant to award attorneys’ fees under a private attorney general theory, reflecting concern that the exception would swallow up the general rule and result in awarding fees to successful parties in all statutory causes of action. See Bradley v. School Board of City of Richmond, 4 Cir., 472 F.2d 318, 329-331 (1972), cert. granted, 412 U.S. 937, 93 S.Ct. 2773, 37 L.Ed.2d 396 (1973). Cf. Note, The Allocation of Attorney’s Fees After Mills v. Electric Auto-Lite Co., 38 U.Chi.L.Rev. 316, 328-336 (1971). Such fears are not lightly to be disregarded, for the American rule barring attorneys’ fees to successful litigants except in extraordinary circumstances is based on important policies of its own. But if the matter is examined closely, it becomes evident that the private attorney general exception, at least as applied to the factual circumstances of the present case, is not inconsistent with the policies behind the traditional American rule. To the contrary, an award of fees in the present case may be justified by reference to the very same policies.

II

The chief rationale behind the American rule is the notion that parties might be unjustly discouraged from instituting or defending actions to vindicate their rights if the penalty for losing in court included the fees of their opponent’s counsel.¹ See Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967); McCormick, Counsel Fees and Other Expenses of Litigation as an Element of Damages, 15 Minn.L.Rev. 619, 639-642 (1931). The possibility of unjust deterrence of litigation is most often stated from the plaintiff’s point of view. An individual with a relatively small damage claim, for example, could easily be discouraged from pressing that claim in court, no matter how meritorious he in good faith .believed it to be, if losing the lawsuit meant paying the defendant’s attorney’s fees which might approach or even exceed the value of his claim. Cf. Farmer v. Arabian American Oil Co., 379 U.S. 227, 235, 85 S.Ct. 411, 13 L.Ed.2d 248 (1964); id. at 236-239, 85 S.Ct. 411 (Mr. Justice Goldberg, concurring). But see Ehrenzweig, Reimbursement of Counsel Fees and the Great Society, 54 Calif.L.Rev. 792 (1966). Of course, the argument has equal merit from the defendant’s point of view. A defendant faced with a relatively small claim might well be induced to capitulate to the plaintiff’s demands, even though he legitimately felt he had a good defense, if losing the case in court would mean paying the plaintiff’s attorney’s fees. See McCormick, supra, 15 Minn.L.Rev. at 641. Simply stated, then, imposition of attorneys’ fees on the losing party is thought to raise the stakes of litigation and thereby to discourage individuals from submitting their rights to judicial determination.

Whatever force this argument concededly has in the great run of civil litigation, we think it plainly inapposite to the circumstances of the present case. As Alyeska has so often brought to our attention, the value of its investment at stake in this litigation was over a billion dollars. Each week’s delay in constructing the pipeline imposed an additional $3.5 million in costs. Any award of fees in this case, though conceivably large in absolute sense, will be paltry in comparison with the interest Alyeska had in defending this appeal. Where the interest at stake is many times greater than the expected cost of one’s opponent’s attorney’s fees, any possibility of deterrence is surely remote if not nonexistent.² Cf. Note, Attorney’s Fees: Where Shall the Ultimate Burden Lie?, 20 Vand.L.Rev. 1216, 1222-1223 & 1230 (1967).

Looking at this case from appellants’ point of view, the unavailability of attorneys’ fees might significantly deter them from having brought this meritorious litigation. In prosecuting this case, appellants undertook litigation of monumental proportions. According to their bill of costs, the matters appealed consumed over 4,500 hours of lawyers’ time, all in addition to the efforts before the District Court in 1970 when this action was commenced and preliminary in-junctive relief obtained. See Wilderness Society v. Hickel, D.D.C., 325 F.Supp. 422 (1970). This burden was assumed not in the hope of obtaining a monetary award, nor to protect an interest peculiar to appellants and their members, but rather to vindicate important statutory rights of all citizens whose interests might be affected by construction of the pipeline.

Whether we consider the Mineral Leasing Act and administrative regulation issues upon which the court rested its opinion declaring the pipeline unlawful, or the National Environmental Policy Act (NEPA) issues which the court left undecided, appellants succeeded in their role as private attorneys general protecting vital statutory interests.

It is argued that the width limitation in Section 28 of the Mineral Leasing Act of 1920 does not amount to a congressional policy of preeminent importance. But the dispute in this case was more than a debate over interpretation of that Act. Appellees’ primary argument was that, whatever the width restrictions in the Act originally meant, a settled administrative practice to evade those restrictions took precedence. In the final analysis, this case involved the duty of the Executive Branch to observe the restrictions imposed by the Legislative, see Freeman v. Ryan, 133 U.S.App.D.C. 1, 3, 408 F.2d 1204, 1206 (1968), and the primary responsibility of the Congress under the Constitution to regulate the use of public lands. Wilderness Society v. Morton, supra, 156 U.S.App.D.C. at 170-172, 479 F.2d at 891-893.

The proper functioning of our system of government under the Constitution is, of course, important to every American, and in this sense appellants’ suit had great therapeutic value. Cf. Mills v. Electric Auto-Lite Co., supra, 396 U.S. at 396, 90 S.Ct. 616. But requiring the Congress to revise the Mineral Leasing Act rather than permitting continued evasion of its clear, though anachronistic, restrictions has had other more concrete and equally important benefits. As a result of this suit, Congress has amended the Mineral Leasing Act to remove the restrictions of the 1920 statute and permit construction of the trans-Alaska pipeline. Public Law 93-153, 93rd Cong., 1st Sess. (November 16, 1973). The statute imposes several important new requirements designed to protect the public interest. Rather than continue the prior practice of permitting free use of Government land, the new statute requires the issuing agency to receive the “fair market value” of the right-of-way and empowers the agency to assess against the right-of-way recipient all reasonable administrative costs of processing an application and monitoring the right of way. Pub.L. 93-153, § 101 (amending Mineral Leasing Act of 1920, § 28(i))- The statute contains special provisions making the operator of the pipeline strictly liable for damages resulting from use of the right-of-way, id., § 204. The same section of the new statute requires the operator to maintain a $100,000,000 liability fund to satisfy the claims, id., § 204(c)(5). Forcing Alyeska to go to Congress to amend the 1920 Act certainly was not a sterile-exercise in legal technicalities devoid of public significance.

The equities in favor of awarding fees for appellants’ efforts on NEPA issues are just as compelling.³ Elaborate specific procedures are provided under the 1973 amendments to ensure protection of environmental interests. Id., § 101 (amending Mineral Leasing Act of 1920, § 28(h)(1) & (2)). One need not have the hindsight of history to know that the commitment to improving and protecting our natural environment is one of the most vital of current national policies. NEPA is only one part of a vast legislative effort toward that end, but it is among the most important because of its broad scope. See generally Scientists’ Institute for Public Information v. AEC, 156 U.S.App.D.C. 395, 402-405, 481 F.2d 1079, 1086-1089 (1973). And effective pursuit of congressional policy under NEPA, as with much legislation in the environmental area, depends on the diligence of private attorneys general and their willingness to bring suit to further broad public interests.⁴

Nor do we think it of controlling importance that this court did not actually decide the NEPA issues and that Congress has subsequently decided in the pipeline legislation that the impact statement prepared by the Department of the Interior shall be deemed sufficient under NEPA. See Pub.L. 93-153, supra, § 203(d). The advancement of important legislative policy justifying an award of attorneys’ fees can be accomplished even where the plaintiff does not obtain the ultimate relief sought by the filing and prosecution of his suit. See, e. g., Mills v. Electric Auto-Lite Co., supra. Where litigation serves as a catalyst to effect change and thereby achieves a valuable public service, an award of fees may be appropriate even though the suit never proceeds to a successful conclusion on the merits. See Parham v. Southwestern Bell Telephone Co., 8 Cir., 433 F.2d 421 (1970). Cf. Gilson v. Chock Full O’Nuts Corp., 2 Cir., 331 F.2d 107 (1964) (en banc).

Here appellants’ lawsuit and appeal served as a catalyst to ensure that the Department of the Interior drafted an impact statement and that the statement was thorough and complete. It must be recalled that when appellants commenced this suit in 1970 the Interior Department, though ready to issue the necessary rights-of-way, had not yet drafted an environmental impact statement for the pipeline. The failure to comply with NEPA was an alternative ground for the District Court’s preliminary injunction. See Wilderness Society v. Hickel, supra. Cf. McEnteggart v. Cataldo, 1 Cir., 451 F.2d 1109 (1971), cert. denied, 408 U.S. 943, 92 S.Ct. 2878, 33 L.Ed.2d 767 (1972). Requiring the Department to draft an impact statement as mandated by law not only benefitted the public’s statutory right to have information about the environmental consequences of the pipeline. It also led to the refinement of environmentally protective stipulations placed as conditions on the rights-of-way.⁵

Although Congress has now given the go-ahead to the pipeline on the basis of the impact statement prepared by the Department, this appeal helped focus attention in Congress on the major issue raised — the relative merits of a trans-Canadian versus a trans-Alaskan route.⁶ See, e. g., 119 Cong.Rec. S12795-S12803 (daily ed., July 9, 1973). See also Title III of Pub.L. 93-153, supra. We take the action of Congress approving the impact statement, not as a total rejection of the arguments made on appeal, but rather as a recognition that appellants had raised a very substantial question which the courts were likely to require considerable time to resolve and that, time being of the essence in providing for delivery of North Slope oil, a congressional resolution was required.⁷

We also deem it significant that the Mineral Leasing Act issues on which appellants clearly prevailed were somewhat interrelated with the NEPA issues. It required a precise analysis of the exact impact of the pipeline as explicated in the impact statement in order to pass on the Government’s claim that the special land use permit involved only a revocable license rather than a permanent right-of-way. See Wilderness Society v. Morton, supra, 156 U.S.App.D.C. at 152-154, 479 F.2d at 873-875. In addition, we note that after it became clear that the Interior Department would persist in issuing the right-of-way despite the District Court’s initial decision that the right-of-way violated the Mineral Leasing Act, appellants sought summary judgment on the Mineral Leasing Act issue alone so that this matter could be resolved by the courts without wading into the more factually complex NEPA issues. Summary judgment was opposed by appellees, and appellants were thus forced to brief and argue an issue which, because of their very success on the Mineral Leasing Act issue, never became ripe for adjudication. Compare Switzer Bros., Inc. v. Chicago Cardboard Co., 7 Cir., 252 F.2d 407 (1958). Taking into account all these factors, we think the equities favor awarding fees for appellants’ efforts on the NEPA issues even though the court rendered no judgment on these matters.

In sum, the equities of this particular case support an award of attorneys’ fees to the successful plaintiffs-appellants. Acting as private attorneys general, not only have they ensured the proper functioning of our system of government, but they have advanced and protected in a very concrete manner substantial public interests. An award of fees would not have unjustly discouraged appellee Alyeska from defending its case in court. And denying fees might well have deterred appellants from undertaking the heavy burden of this litigation.

Ill

Even if fees are to be awarded under a private attorney general theory, a question is posed as to whether Alyeska should bear them. Technically, it is the Interior Department, on Alyeska’s application, which violated the Mineral Leasing Act by granting rights-of-way in excess of the Act’s width restrictions, and it is the Interior Department’s failure to comply with NEPA which was challenged on appeal. Under 28 U.S.C. § 2412, however, no attorneys’ fees can be imposed against the United States. Alyeska argues that it is inappropriate to circumvent the statute by taxing it for a dereliction not its own.

Fee shifting under the private attorney general theory, however, is not intended to punish law violators, but rather to ensure that those who have acted to protect the public interest will not be forced to shoulder the entire cost of litigation. Cf. Hall v. Cole, supra 412 U.S. at 14, 93 S.Ct. 1943. After successfully persuading the Interior Department to grant the rights-of-way, Alyeska intervened in this litigation to protect its massive interests. Since Alyeska unquestionably was a major and real party at interest in this case, actively participating in the litigation along with the Government, we think it fair that it should bear part of the attorneys’ fees.⁸ Cf. Silva v. Romney, 1 Cir., 473 F.2d 287 (1973). In recognition of the Government’s role in the case, on the other hand, Alyeska should have to bear only half of the total fees. The other half is properly allocated to the Government and, because of the statutory bar, must be assumed by appellants. In this manner the equitable principle that appellees bear their fair share of this litigation’s full cost and the congressional policy that the United States not be taxable for fees can be accommodated.

Because assessment of fees, even for services on appeal, involves factual questions, the amount of an award should as a general rule be fixed in the first instance by the District Court, after hearing evidence if necessary as to the extent and nature of the services rendered. See Perkins v. Standard Oil Co. of California, 399 U.S. 222, 90 S.Ct. 1989, 26 L.Ed.2d 534 (1970); United Pacific Insurance Co. v. Idaho First National Bank, 9 Cir., 378 F.2d 62, 69 (1967). We observe that procedure here, with only the following limited guidance as to the standard to be applied by the District Court in determining the fee. The fee should represent the reasonable value of the services rendered, taking into account all the surrounding circumstances, including, but not limited to, the time and labor required on the case, the benefit to the public, the skill demanded by the novelty or complexity of the issues, and the incentive factor. See generally Angoff v. Goldfine, 1 Cir., 270 F.2d 185, 188-189 (1959); Pergament v. Kaiser-Frazer Corp., 6 Cir., 224 F.2d 80, 83 (1955); Harris v. Chicago Great Western R. Co., 7 Cir., 197 F.2d 829, 832-833 (1952). Cf. Bakery & Confectionery Wkrs International Union v. Ratner, 118 U.S.App.D.C. 269, 273-275, 335 F.2d 691, 695-697 (1964); Kiser v. Miller, D.D.C., 364 F.Supp. 1311 (1973).

Finally, a question is raised as to how the fees should be distributed as among appellants, the attorneys, and the organizations for which some of the attorneys are salaried employees. After determining a reasonable fee and dividing it in half, as indicated above, the District Court should ensure that the three appellant organizations are reimbursed for any payments they have already made to counsel. The first purpose of an award of fees is to make the client whole. See Clark v. American Marine Corp., E.D.La., 320 F.Supp. 709 (1970), affirmed, 5 Cir., 437 F.2d 959 (1971); United States v. State Farm Mutual Automobile Insurance Co., D. Or., 245 F.Supp. 58 (1965).

The fee award need not be limited, however, to the amount actually paid or owed by appellants. It may well be that counsel serve organizations like appellants for compensation below that obtainable in the market because they believe the organizations further a public interest. Litigation of this sort should not have to rely on the charity of counsel any more than it should rely on the charity of parties volunteering to serve as private attorneys general. The attorneys who worked on this case should be reimbursed the reasonable value of their services, despite the absence of any obligation on the part of appellants to pay attorneys’ fees. See Miller v. Amusement Enterprises, Inc., 5 Cir., 426 F.2d 534 (1970); Clark v. American Marine Corp., supra , 320 F.Supp. at 711.

It is our view that the award must go to counsel rather than to the organizations which pay their salaries. This is sound, whether such organization is a litigating party or a public interest law firm or defense fund. This procedure avoids all problems of whether the organization might, by receiving an award directly, be involved in the unauthorized, practice of law. On the other hand, the equitable foundation of the award of counsel fees persists after the award to require the counsel to reimburse their respective organizations for the kinds of expenses they incurred which would normally be included in an attorney’s fee— compensation paid for the services of attorneys and their adjunct staffs, e. g., legal stenographers, and for the supplies and services required by the attorneys in order that they might render their legal services. This procedure will operate equitably, both to prevent loss to the organization and to avoid double benefit to counsel. But any amount in excess of such reimbursement belongs to counsel themselves. That excess may, in whole or in part, be contributed to the organization involved, or to like causes, or retained by counsel, and we revert to the possibility that the salary they previously received represented less than they could have earned on the market in the absence of their dedication to the public interest.⁹

An order will enter awarding statutory costs, and the bill of costs is remanded to the District Court for the setting of attorneys’ fees.

So ordered.

1 . Another rationale for the American rule is that “the time, expense, and difficulties of proof inherent in litigating the question of what constitutes reasonable attorney’s fees would pose substantial burdens for judicial administration.” Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718, 87 S.Ct. 1404, 1407, 18 L.Ed.2d 475 (1967). See also Oelrichs v. Spain, 82 U.S. (15 Wall.) 211, 231, 21 L.Ed. 43 (1872) :

“ * * * There is no fixed standard by which the honorarium can be measured. Some counsel demand much more than others. Some clients are willing to pay more than others. More counsel may be employed than are necessary. When both client and counsel know that the fees are to be paid by the other party there is danger of abuse. A reference to a master, or an issue to a jury, might be necessary to ascertain the proper amount, and this grafted litigation might possibly be more animated and protracted than that in the original cause. It would be an office of some delicacy on the part of the court to scale down the charges, as might sometimes be necessary.”

We think, however, that actual experience is a more trustworthy guide than fears expressed over 100 years ago as to what might come to pass if fees were awardable. Courts have shown themselves quite able to develop reasonable and workable standards for setting attorneys’ fees. See text at pp. 1036-1037 infra. Litigation over the amount of fees can hardly be said to be o burdensome. Indeed, parties are often able to agree on a reasonable fee. See, e. g., Sims v. Amos, M.D.Ala., 340 F.Supp. 691, 693 n. 3 (1972). Nor has it proved particularly delicate for courts to scale down unreasonable fee requests. See, e. g., Bates v. Hinds, N.D.Tex., 334 F.Supp. 528, 533 (1971). The apparent ease with which the courts have handled the numerous cases in which fees have been granted, either under statutes expressly authorizing recovery of fees such as Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k) (1970), or under traditional equitable exceptions, undercuts the dire predictions that determination of appropriate fees will unduly burden the courts. See, e. g. Robinson v. Lorillard Corp., 4 Cir., 444 F.2d 791 (1971); Culpepper v. Reynolds Metals Co., 5 Cir., 442 F.2d 1078 (1971); Lea v. Cone Mills Corp., 4 Cir., 438 F.2d 86 (1971); Parham v. Southwestern Bell Telephone Co., 8 Cir., 433 F.2d 421 (1970).

2 . Had appellees been the prevailing parties and sought attorneys’ fees from appellants, the possibility of deterrence would be significant and the rationale of the American rule would therefore bar recovery of fees. In this sense there is an admitted lack of reciprocity in granting attorneys’ fees under a private attorney general theory. The same lack of reciprocity, however, appears to be present in so-called “common benefit” cases. In Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973), for example, the successful plaintiff in a suit brought under § 102 of the Labor-Management Reporting & Disclosure Act of 1959 was awarded fees from the defendant union on the ground the suit benefitted all union members and reimbursement of attorneys’ fees out of the union treasury would shift the costs of litigation to these beneficiaries. 412 U.S. at 7-8, 93 S.Ct. 1943. Had the defendant union prevailed on the merits, however, it is doubtful that the same theory would have required awarding fees to defendant because of the risk of deterring plaintiffs from bringing suit.

3 . The environmental benefit from this litigation is generously recognized by the Honorable Russell E. Train, then chairman of the President’s Council on Environmental Quality and now Administrator of the Environmental Protection Agency, before the Joint Judicial Conference of the Eighth and Tenth Circuits on June 29, 1973:

“The Alaska Pipeline may not have been a tidy example of the judicial process, but it has been an excellent example where NEPA and the courts have forced the reconciliation of environmental concerns with sound engineering practices on a major energy project. The President has now called for construction of the pipeline at the earliest possible date, and the Administration has introduced legislation which would remove the present right-of-way restrictions and is urging swift action on the bill.

“To some any delay in the completion of the pipeline is unreasonable. In reality, though, much of the delay has been beneficial. The problems of constructing a hot oil pipeline across permafrost are very ' real. The problems of constructing a

pipeline across one of the most seismically active and remote areas of the world are likewise very real. These and other significant problems were simply not adequately faced in the initial proposal presented to the Department of the Interior in 1969.

“If the pipeline had been constructed using the original design specifications, it would very likely have resulted in not only very serious environmental damage but also serious operational problems. Indeed, the physical integrity of the pipeline itself was very much at stake.

“Thus, the case of the Alaska pipeline has not been simply one of aesthetics, or of concern over wildlife and wilderness disturbance, or worries over water pollution, important as all of these are. It was clearly an example where sound environmental analysis was essential to sound engineering and siting.

“In all honesty, the process has been one of learning for both industry and government. I believe that industry seriously underestimated the real technical difficulties of the task and failed to appreciate fully- — particularly at the outset — the new conditions for decision-making in matters that substantially affect the environment. On its part, government was ill-equipped both institutionally and informationally for dealing with the complex problems of the pipeline. New would now contend that the Interior Department’s first response to NEPA on the pipeline right-of-way application was really adequate.”

4 . See, e. g., Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (Department of Transportation Act and Federal-Aid Highway Act); Natural Resources Defense Council, Inc. v. EPA, 1 Cir., 484 F.2d 1331 (1973) (Clean Air Amendments of 1970) ; Scientists’ Institute for Public Information v. AEC, 156 U.S.App.D.C. 395, 481 F.2d 1079 (1973) (NEPA); Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827 (1972) (NEPA); Calvert Cliffs’ Coordinating Committee v. USAEC, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971) (NEPA); Environmental Defense Fund v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584 (1971) (Federal Insecticide, Fungicide, & Rodenticide Act); Sierra Club v. Lynn, W.D.Tex., 364 F.Supp. 834, 5 E.R.C. 1745 (1973) (NEPA).

5 . See United States Department of the Interior, Final Environmental Impact Statement: Proposed Trans-Alaska Pipeline, Vol. I, App. (1972). Under the 1973 amendments to the Mineral Leasing Act of 1920, the right-of-way for the trans-Alaska pipeline is expressly made subject to the terms and conditions of these stipulations. See Pub.L. 93-153, 93d Cong., 1st Sess. (Nov. 16, 1973), § 203(c). It is also interesting to note that many of those in Congress supporting immediate construction of the trans-Alaska pipeline did so because “the environmentalists — through long delays they already have forced — achieved the inclusion of strong safeguards in plans for the Alaskan line.” 119 Cong.Rec. S13574 (daily ed., July 16,1973) (Senator Fannin).

6 . Senator Peter Dominick of Colorado and his former legislative assistant, David Brody, refer to our original decision in this case as a “remand” to the Congress to consider, not only the amendment of the Mineral Leasing Act of 1920, but the environmental issue as well. The action of Congress in amending the Act and resolving the environmental issue resulted in the voluntary dismissal of this entire litigation on January 16, 1974.

“Whatever the shortcomings in having the courts decide major issues on rather narrow bases, such disadvantages are outweighed by the result of transferring the controversy to the proper forum — the legislature. The goal of increasing public participation in environmental decision-making is furthered by the remand disposition. Normally, this disclosure function is accomplished in the administrative process under NEPA; information disclosed in impact statements may provoke public entry into bureaucratic decision-making. 61 The process of remand further provokes public involvement, and encourages the Congress to employ a national perspective and thus concern itself with the broad issues involved. * * * ”

Dominick & Brody, The Alaska Pipeline: Wilderness Society v. Morton and the Trans-Alaska Pipeline Authorization Act, 23 Amer.U.L.Rev. 337, 352-353 (1973). In note 61 the authors cite Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 11, 458 F.2d 827, 833 (1972), where we developed the need for a full impact statement for the purpose of informing the legislature and the public — not merely higher-ups in the chain of executive command.

7 . Senator Gravel, the author of the amendment which provided that actions already taken by the Department of the Interior shall be deemed sufficient compliance with NEPA, argued that were his amendment defeated “we would see ourselves languishing in court for a year to 2 years * * 119 Cong.Rec. S13571 (daily ed., July 16, 1973). See also id. at S13574 (Senator Fannin) ; id. at S13684 (July 17, 1973) (Senator Fannin).

8 . In the circumstances of this case it would be inappropriate to tax fees against appellee State of Alaska. The State voluntarily participated in this suit, in effect to present to the court a different version of the public interest implications of the trans-Alaska pipeline. Taxing attorneys’ fees against Alaska would in our view undermine rather than further the goal of ensuring adequate spokesmen for public interests.

9 . In his dissent Judge Wilkey quotes from a memorandum and several affidavits submitted to the District Court on July 19, 1971 by plaintiffs (appellants here) and their Washington, D. C. lawyers in opposition to the defendant Secretary’s motion for change of venue to Alaska. These documents contain representations that plaintiffs could not afford to pay attorneys’ fees, that plaintiffs’ Washington lawyers were serving without fee, and that these lawyers were unable to self-finance the conduct of extensive litigation in Alaska. The dissent suggests that plaintiffs were guilty of misrepresentation, by either commission or omission, and that this misrepresentation affected the District Judge’s denial of the motion for venue change. On both counts the dissent is mistaken.

(1) There was no misrepresentation. Plaintiffs were not able to pay attorneys’ fees; plaintiffs were not paying fees to their Washington lawyers; these lawyers did not have sufficient funds of their own to carry on this complex case in Alaska. At no point did plaintiffs or their lawyers state, hint, or imply that they would abstain from seeking an award of fees. In fact there is no evidence and no reason to believe that plaintiffs had, by July of 1971, given any thought whatever to the possibility of a fee award. Plaintiffs could not have known then that they would win their case in such a way as to justify an award. In July of 1971 no circuit had yet ruled that such an award was proper on behalf of “private attorney general” litigants in environmental suits successfully prosecuted in the public interest. Our circuit so rules for the first time today — in a 4 to 3 opinion. Does the dissent seriously suggest that plaintiffs had a duty to prophesy their victory, the nature of their victory, and the future development of case law concerning fee awards so that it could have “been represented to the District Court that plaintiffs’ counsel would seek and be awarded * * * a fee”? We must point out that neither plaintiffs nor their counsel are soothsayers.

(2) Assuming arguendo that, by July 1971, plaintiffs had given thought to requesting a fee award in the event of ultimate victory, a representation to this effect would not, as the dissent asserts, have cast the venue issue into “a dramatically different light before the District Judge.” Plaintiffs’ intentions on this score could have had no bearing on the venue issue. That, we imagine, is why no party, including the District Judge, showed the slightest interest in plaintiffs’ intentions. The dissent fashions two wonderfully ambiguous sentences to link together the fee award and venue issues:

Plaintiffs could not have argued that they would be deprived of counsel, either those already chosen or others, by a change in venue to Alaska or any other place. The lively expectation of such fees as may now be awarded would have brought many lawyers to plaintiffs’ side, either in Alaska or elsewhere.

We are constrained to remind the dissenters:

(a) Neither the plaintiffs nor anyone else could have notified the Alaska bar in July of 1971 that we would hold as we do today. For plaintiffs to have announced in July of 1971 that they might seek an award of fees in the event of ultimate victory would not have created a “lively expectation of such fees” in Alaska or anywhere else. Plaintiffs had yet to win their suit; the case law concerning fee awards had yet to mature. Plaintiffs’ hopes and intentions — whatever they might have been in July 1971 — were not legal tender, and would have added not one penny to plaintiffs’ financial capacity to prosecute the suit here or in Alaska. The dissenters forget the chronological nature of our legal system, whereby pretrial motions typically proceed in ignorance of the ultimate outcome of the litigation. Perhaps, however, the dissenters are trying to make a separate point, i. e. that our decision today may increase the willingness of skilled lawyers throughout the nation to undertake public interest litigation on behalf of unmon-ied clients with just, lawful, and important claims. This proposition we of course accept, and count it a happy result of our decision.

(b) It was not the Secretary’s position on the motion for change of venue that plaintiffs should switch to Alaska counsel for prosecution of the suit in that state. The Secretary fully conceded that a change of counsel would be “undesirable,” given the months of preparation which plaintiffs’ Washington lawyers had already committed to the case. Response to Plaintiffs’ Memorandum of Points and Authorities in Opposition to Defendant’s Motion to Change Venue, July 27, 1971, at 8-9. Rather, the Secretary argued that the case could be resolved by plaintiffs and their Washington lawyers with “a few trips to Alaska.” Id. This was a bizarre view of the suit’s complexity, and it would hardly have been rendered realistic or plausible by a representation that plaintiffs might ultimately seek a judicial award of fees.

(c) Plaintiffs’ most telling arguments on the venue question did not turn on the scarcity of “free” counsel in Alaska. At the crux of plaintiffs’ position was a showing that it was in the District of Columbia that plaintiffs’ staffs and organizations were headquartered, that all pertinent Government documents were located, that the most important expert witnesses were available, and that the case had already been litigated for 16 months with no inconvenience to the Government. In addition, plaintiffs argued extensively and persuasively that the legal issues at stake were matters not of local but of national, even international, concern. See generally Plaintiffs’ Memorandum of Points and Authorities in Opposition to Defendant’s Motion to Change Venue, July 19, 1971, and accompanying affidavits. The District Judge’s ruling was phrased in commensurately broad terms, with no mention of availability of counsel. He held that

the defendant has failed to show that the requested transfer would serve the convenience of parties and witnesses and the interest of justice.

Order of Aug. 9, 1971. In our judgment it cannot be seriously contended that this eminently sound determination could have been affected by the possibility — at that time so speculative as to seem quixotic— that attorneys’ fees might ultimately be awarded in this case.