Reported / Citable
Background
Raptors Are the Solution is an environmental organization founded to protect wildlife from the toxic effects of pesticides. In 2017 it asked the California Department of Pesticide Regulation to reevaluate seven anticoagulant rodenticides (three first-generation and four second-generation), arguing they posed significant risks to wildlife. The Department renewed the rodenticide registrations without reevaluation. Raptors filed a writ petition alleging the Department violated the California Environmental Quality Act and its own regulations.
Trade associations representing pesticide developers, manufacturers, formulators, and distributors intervened to defend the Department’s decisions. They argued they had direct pecuniary interests in the rodenticide registrations because their member companies relied on the registrations for sales of the products. After lengthy litigation in both trial and appellate courts, Raptors prevailed in significant part. The Department placed five of the challenged rodenticides into reevaluation, and the Governor signed legislation imposing a moratorium on their use during the reevaluation.
Raptors moved for attorney’s fees as the successful party under Code of Civil Procedure section 1021.5 (the private attorney general statute). The trial court awarded fees and imposed joint and several liability on the Department, several pesticide companies designated as real parties in interest, and the trade associations. The trade associations alone appealed, arguing they should not be liable for fees because they did not make the policy decisions that prompted the litigation.
The Court’s Holding
The First District Court of Appeal, Division Two, affirmed. The court held that the trade associations were properly held jointly and severally liable for the private attorney general fees because they had asserted and demonstrated direct pecuniary interests in the litigation when they intervened.
Code of Civil Procedure section 1021.5 authorizes fee awards against parties whose conduct gave rise to the litigation in vindication of an important right affecting the public interest. The statute does not limit fee liability to the original government decisionmaker; intervenors who actively defend the challenged decisions and have a stake in their outcome may also be liable for fees.
The court rejected the trade associations’ attempt to disclaim the very pecuniary interests they had asserted earlier in the litigation to justify intervention. Having argued throughout the case that they and their members had direct pecuniary stakes in the rodenticide registrations, the trade associations could not now claim they had no such interests when fees were sought against them. The trial court was entitled to take them at their word the first time, find they had direct interests in the litigation, and award fees against them on that basis.
The court also addressed the trade associations’ argument that they did not make the policy decisions that caused Raptors to file suit. The fee statute does not limit liability to the original decisionmaker; entities that take active positions defending challenged decisions and benefit from the outcome share responsibility for the fees incurred to overcome their defense.
Key Takeaways
- Code of Civil Procedure section 1021.5 (private attorney general fees) may be awarded jointly and severally against intervenors and real parties in interest who actively defend challenged government decisions, not just against the original government decisionmaker.
- Trade associations and other entities that intervene based on asserted pecuniary interests cannot later disclaim those interests to avoid fee liability.
- Fee awards against intervenors are appropriate where the intervenors actively participate in the defense of the challenged decisions and benefit from the outcome.
- Litigation positions taken to support intervention generally bind the intervening party for purposes of subsequent fee proceedings.
- Pesticide trade associations that defend rodenticide registrations through CEQA litigation face significant fee exposure if the challenger ultimately prevails.
Why It Matters
This decision is important for environmental and public interest litigation in California. The opinion confirms that trade associations and industry intervenors cannot use intervention to defend favorable agency decisions while avoiding the financial consequences of unsuccessful defense. The threat of fee liability for intervenors should give industry groups pause before joining government agencies in defending challenged decisions.
For environmental and public interest plaintiffs, the case provides strong support for seeking fees against industry intervenors as well as government defendants. For trade associations and other industry intervenors, the opinion is a sharp warning that intervention carries fee risk and that earlier statements asserting pecuniary interests will be used against them in fee proceedings. For government agencies, the decision suggests careful coordination with industry intervenors to manage potential fee exposure.