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Bricks, Inc. v. EPA

Citation: 35 ELR 20218
No. No. 05-1125, (7th Cir., 10/21/2005)

The court upholds the denial of a company's request for attorneys fees stemming from an unsuccessful U.S. Environmental Protection Agency (EPA) action against it for discharging dredge and fill material into wetlands without a permit. An administrative law judge initially held that the company violated the Clean Water Act, but the EPA Environmental Appeals Board (EAB) reversed, holding that the Agency failed to prove its case by a preponderance of evidence. The company then sought attorneys fees under the Equal Access to Justice Act (EAJA). The EAJA, however, does not allow a defendant who prevails in an action brought by a federal agency to recover its legal fees and expenses where the agency's position was substantially justified. Here, EPA had a reasonable basis for pursuing its claim. In the underlying case, EPA presented testimony and evidence to show a hydrological connection between the wetlands and waters at issue, but the EAB found that the testimony and evidence were not sufficient to meet EPA's burden of persuasion. Although the EAB held that EPA failed to prove its case, it did not rule out that there was, in fact, a hydrological connection. Thus, EPA had a reasonable basis for pursuing its hydrological connection theory, even though the EAB did not ultimately find in the Agency's favor.