572
Blackmun, J., dissenting
limitation, by allowing the attorney to recover fees for cases in which his client does not prevail. Ibid. What the words "in effect" conceal, however, is the Court's inattention to the language of the statutes: The provisions at issue in this case, like fee-shifting provisions generally, authorize fee awards to prevailing parties, not their attorneys. See 33 U. S. C. § 1365(d); 42 U. S. C. § 6972(e); see also Venegas v. Mitchell, 495 U. S. 82, 87 (1990). Respondents simply do not advocate awarding fees to any party who has not prevailed. Moreover, the Court's reliance on the "prevailing party" limitation is somewhat misleading: the Court's real objection to contingency enhancement is that the amount of an enhanced award would be excessive, not that parties receiving enhanced fee awards are not prevailing parties entitled to an award. In prior cases the Court has been careful to distinguish between these two issues. See, e. g., Hensley v. Eckerhart, 461 U. S., at 433 (The "prevailing party" determination only "brings the plaintiff . . . across the statutory threshold. It remains for the district court to determine what fee is 'reasonable' ").
Second, the Court suggests that "both before and since Delaware Valley II, 'we have generally turned away from the contingent-fee model'—which would make the fee award a percentage of the value of the relief awarded in the primary action—'to the lodestar model.' " Ante, at 565-566 (footnote omitted), quoting Venegas v. Mitchell, 495 U. S., at 87. This argument simply plays on two meanings of "contingency." Most assuredly, respondents—who received no damages for their fee-bearing claims—do not advocate "mak[ing] the fee award a percentage" of that amount. Rather, they argue that the lodestar figure must be enhanced because their attorneys' compensation was contingent on prevailing, and because their attorneys could not otherwise be compensated for assuming the risk of nonpayment.
Third, the Court suggests that allowing for contingency enhancement "would make the setting of fees more complex
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