The Montana Coalition for Heath, Environmental, and Economic Rights (CHEER) gave a sixty-day notice of its intent to sue Stone Container Corporation (Stone) for violations of the Clean Air Act (CAA)[1] and other environmental statutes to both the corporation and to the United States Environmental Protection Agency (EPA). EPA consequently brought an enforcement action against Stone, and CHEER filed a citizen suit against Stone for violations of the CAA and various other environmental statutes. Three of CHEER's CAA allegations were essentially identical to the charges brought by the EPA.

CHEER negotiated a consent decree with Stone. The CHEER-Stone consent decree settled all claims that did not overlap with the United States suit, and Stone agreed to pay CHEER's attorney fees and costs for those claims. CHEER dismissed the remaining overlapping claims and then intervened in the EPA action, which was also eventually settled through a consent decree. Following the execution of both consent decrees, CHEER moved for attorneys' fees in the United States action. The district court denied the motion, concluding that CHEER could not recover attorneys' fees because its duplicative claims were precluded by the CAA's citizen suit provision.[2] Subsection (b) of section 304 prohibits the commencement of citizen suits when the United States "has commenced and is diligently prosecuting" an action on the same claims.[3] The district court held that CHEER was precluded from bringing the claims under subsection (a) and therefore, was not entitled to recover attorneys' fees.

On appeal, CHEER presented two arguments in favor of awarding attorneys' fees. First, CHEER contended that section 304(d) gives courts discretion in awarding attorneys' fees "whenever the court determines such award is appropriate."[4] Second, CHEER claimed that fees for the duplicative claims were appropriate because it had originally brought these claims pursuant to the citizen suit provision, section 304(a).[5]

The Ninth Circuit reviewed the request de novo and concluded that the plain language of section 304 does not authorize attorneys' fees for a party who intervenes in an action when the action is not brought under the citizen suit provision. It determined that "a court may award litigation costs . . . only if the underlying action was brought pursuant to subsection (a)" of CAA section 304.[6] Because CHEER intervened in the United States action, which was brought under a separate section of the CAA, it was not eligible for attorneys' fees. Although a court has discretion under subsection (d) as to whether or not to award attorneys' fees, it only has this discretion with regards to "any action brought pursuant to subsection (a)."[7]

The court also refused to apply the reasoning of the Seventh Circuit in United States v. Environmental Waste Control, Inc. (EWCI),[8] which awarded fees to an intervening party in a Resource Conservation and Recovery Act (RCRA)[9] action brought by EPA. Although the underlying RCRA provision did not explicitly authorize attorneys' fees, the district court in EWCI determined that Congress intended for citizen group interveners to be able to recover such fees.[10] The Ninth Circuit determined that the plain language of the CAA and the lack of an intervenor fee provision in the statute supported its conclusion and distinguished this case from EWCI. In addition, the court pointed out that CHEER had already recovered attorneys' fees through the CHEER-Stone consent decree for its successful claims against Stone.

The court rejected CHEER's second argument on procedural grounds. The current appeal arose from the United States' action, which was not brought under section 304(a). Because CHEER's second argument based CHEER's eligibility for attorneys' fees for the duplicative claims on its initial citizen suit, a separate suit that was not the underlying action on appeal, the court refused to address the merits of the argument.

In dicta, the Ninth Circuit reemphasized the policy behind the citizen suit provisions in federal environmental statutes, which provides incentives to citizens to enforce environmental requirements when agencies fail to do so. The need for such incentives decreases when the agency has taken action, as EPA had in this case. The court recognized that incentives for interveners could also further the policy behind citizen suits. However, the court reserved that option for congressional action.