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Environmental Defense Fund v. EPA

Citation: 12 ELR 20315
No. Nos. 79-1580 et al., 672 F.2d 42/16 ERC 2149/(D.C. Cir., 02/05/1982) Attorneys fees awarded

The District of Columbia Circuit holds that petitioner is entitled under § 19(d) of the Toxic Substances Control Act (TSCA) to recover reasonable attorneys fees for the hours reasonably expended in litigating all issues in Environmental Defense Fund, Inc. v. Environmental Protection Agency (EDF v. EPA), 10 ELR 20972, at reasonable hourly rates, adjusted to reflect the litigant's contribution to the public interest and the delay in payment. The court first finds that under § 19(d) of TSCA a court may award attorneys fees to "prevailing," "substantially prevailing," or "non-prevailing" parties where their contribution to the case serves the public interest. EDF is entitled to an award of attorneys fees for its participation in EDF v. EPA, in which it won two of three challenges to EPA regulations implementing § 6(e) of TSCA. Next the court determines that the guidelines enunciated in relevant case law require that the claim for fees be documented and based on a "lodestar" amount equal to the hours reasonably expended multiplied by reasonable hourly rates, adjusted for the quality of the presentation and for delay in payment, but not for the risk assumed in bringing the action because non-prevailing parties can recover fees under TSCA. Turning to the merits of EDF's claims, the court, after finding that EDF's documentation of its claims is adequate, rules that EDF's failure to prevail on one of three closely related issues should not result in a reduction of the hours billed since attorneys fees under TSCA are not restricted to successful parties and the unsuccessful component of the litigation nevertheless benefitted the public interest. In addition, the court rules that EDF is not barred from claiming attorneys fees for work performed on issues raised by the intervenors since the positions advanced by the intervenors were in support of EPA, and EDF's work on these issues did not duplicate its efforts in opposition to the Agency. Nor is EDF prevented from billing for hours spent in post-decision negotiations since they were closely related to the substantive litigation and EDF's participation in them was crucial to implementation of a decision. In determining the reasonable hourly rates for the EDF attorneys, the court refuses to impose different rates for in-court work and out-of-court work and rules that the rates requested by EDF are reasonable given the experience of the attorneys involved and current market rates in the field. In addition, the court makes a modest upward adjustment in the "lodestar" fee of 17 percent to reflect the litigation's benefit to the public interest and the delay in the receipt of the attorneys fees, but rejects petitioner's claim for a doubling of the base fee because the quality of their presentation was within that expected of similarly qualified attorneys and they did not prevail on all issues. Finally, the court rules that EDF is entitled to attorneys fees for time reasonably devoted to obtaining such fees since it was required to seek the award through litigation.

Counsel for Petitioner
Jacqueline M. Warren, David J. Lennett
Environmental Defense Fund, Inc.
1525 18th St. NW, Washington DC 20036
(202) 833-1484

Bingham Kennedy, Barry J. Trilling
Trilling & Kennedy
Suite 1100, 1100 17th St. NW, Washington DC 20036
(202) 223-1577

Counsel for Respondent
Ellen Siegler
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-4134

Donald W. Stever Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5290

Counsel for Intervenors
Steven S. Rosenthal
Morrison & Foerster
1920 N St. NW, Washington DC 20036
(202) 887-1500

Before: ROBINSON, Chief Judge, EDWARDS, Circuit Judge, and HOWARD F. CORCORAN,* United States Senior District Judge.