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Sierra Club v. Gorsuch

Citation: 17 ELR 21219
No. No. Civ. 81 2436 EFL, (N.D. Cal., 04/05/1983) Attorneys fees granted

The court awards attorneys fees to plaintiffs under the Clean Air Act for their challenge to the Environmental Protection Agency's (EPA's) failure to issue emission standards for radionuclides, and applies a multiplier of two for the exceptional quality of counsel's work, contingency, and the undesirability of the case. The court first holds that it may award attorneys fees under Clean Air Act § 304(d) because a "final order" resolving the issue raised by plaintiffs and granting all of their requested relief has been issued in this case. The court next holds that an award of attorneys fees is "appropriate." Plaintiff has served the public interest by bringing this lawsuit, which has clarified defendant EPA's duty to regulate hazardous air pollutants under Clean Air Act § 112(b)(1)(A) and resulted in an order requiring EPA to fulfill its duty.

Turning to the calculation of the fees, the court adopts a "blended" approach that combines the "lodestar" approach, which multiplies a reasonable hourly rate by the number of hours worked, with an approach that considers a number of guidelines such as the difficulty of the case and the amount of skill required by the case. The court first determines the number of hours for which fees can be awarded. The court holds that the time spent by plaintiffs' counsel in opposing the arguments of several industry intervenors is compensable. EPA did not oppose the motions to intervene and clearly gained by the intervenors' arguments, which were supportive of EPA's position. Plaintiffs' counsel avoided duplicative work by filing consolidated responses to the arguments of EPA and intervenors. Further, to require EPA to pay for counsel's time spent opposing the intervenors would not affect EPA's ability to seek contribution from the intervenors. The court holds that counsel's time spent consulting with outside scientific experts is compensable because the time was reasonably and prudently spent. The court holds that counsel's time spent in obtaining discovery through the Freedom of Information Act (FOIA), where the information sought was also obtainable by traditional discovery methods, is not compensable. The purpose of the FOIA is not to serve as a substitute for civil discovery, and to conduct dual discovery under the FOIA and through traditional discovery might force the government to scrutinize the dissemination of information in two separate proceedings. The court holds that counsel's limited time spent in public and press relations is compensable because it furthered plaintiffs' interests. The court holds that the time spent by two attorneys at oral argument is compensable because the presence of two attorneys to assist one another was reasonable, especially in light of the large number of EPA attorneys present. In addition, the court holds that time spent in preparing the motion for attorney's fees is compensable because the hours are not excessive and much of the work was done by a law clerk, whose time is billed at a lower rate. After arriving at the total number of compensable hours, the court holds that plaintiff's counsel should be compensated at their requested rate, because EPA failed to present any evidence challenging plaintiff's strong showing of their counsel's competency and the reasonableness of the rates requested.

The court next holds that the lodestar should be adjusted upward because of the high quality of plaintiffs' counsel's work. Counsel efficiently and expertly produced a favorable judgment that will benefit the public. The court next holds that an upward adjustment is warranted by the contingent nature of counsel's fee arrangement, especially in light of the smallness of counsel's firm, their reasonable belief at the time that attorneys fees under the Clean Air Act might only be available to the prevailing party, and the formidable nature of their opposition. Finally, the court holds that the fee award should be increased because the case was an "undesirable" one in terms of difficulty and financial risk. The court concludes that a multiplier of two is appropriate.

[Decisions in the underlying litigation are published at 12 ELR 20457 and 13 ELR 20231.]

Counsel for Plaintiff
Roger Beers
380 Hayes St., Suite 1, San Francisco CA 94102
(415) 972-1401

Counsel for Defendant
Francis Boone, Ass't U.S. Attorney
450 Golden Gate Ave., P.O. Box 36055, San Francisco CA 94102
(415) 556-1126

Dean Dunsmore
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2216