Lindsay Schafer

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Environmental plaintiffs now have fewer opportunities to receive attorney fees in the wake of the United States Court of Appeals for the Eleventh Circuit's decision in Friends of the Everglades v. South Florida Water Management District (Friends of the Everglades II). In this case the court further narrowed what plaintiffs' civil suits must accomplish to have a "positive catalytic effect." While many circuits, including the Eleventh Circuit, have focused on what it means for a party to be a "prevailing party" under various statutory schemes, and thus receive attorney fees, this case marks the first time the Eleventh Circuit has defined what is sufficient to constitute a change for purposes of the positive catalyst theory when reading the Clean Water Act's "whenever ... appropriate'" language in conjunction with this theory. In this case the court held that when a plaintiff's lawsuit spurs an agency to make new rules that are adverse to the plaintiff's position, the lawsuit will not be considered to have a positive catalytic effect and, thus, attorney fees are not "appropriate."