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Environmental Law – CERCLA — attorney fees

U.S. Court of Appeals for the Seventh Circuit


Environmental Law – CERCLA — attorney fees

A plaintiff in a CERCLA action does not become a prevailing party when her lawsuit brings about a voluntary change in the defendant’s conduct without a court order that materially alters the legal relationship between the parties.

“This circuit has adopted ‘a strong presumption that Buckhannon applies to each fee-shifting statute that awards fees to “prevailing parties.”’ T.D. v. LaGrange School District No. 102, 349 F.3d 469, 475 (7th Cir. 2003). For Buckhannon not to apply, the text, structure or legislative history of a particular statute must clearly indicate a different definition of ‘prevailing party.’ Id. Nothing in the text, structure, or legislative history of CERCLA clearly indicates that we should interpret its fee-shifting provision differently from that in Buckhannon, so we see no reason why it should not apply here. See City of Waukesha v. PDQ Food Stores, Inc., 500 F. Supp. 2d 1119, 1122 (E.D. Wisc. 2007) (applying Buckhannon to CERCLA’s fee-shifting provision); Lucia A. Silecchia, The Catalyst Calamity: Post-Buckhannon Fee-Shifting in Environmental Litigation and a Proposal for Congressional Action, 29 Colum. J. Envtl. L. 1 (2004) (assuming Buckhannon applies to fee-shifting under CERCLA and calling for legislation).”


13-2142 Frey v. EPA

Appeal from the United States District Court for the Southern District of Indiana, Young, J., Hamilton, J.

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