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Kennecott Corp. v. EPA

Citation: 17 ELR 20119
No. Nos. 80-2036 et al., 804 F.2d 763/25 ERC 1300/(D.C. Cir., 11/07/1986) Attorneys fees allowed

The court holds that petitioners, who were partially successful in their challenge to the Environmental Protection Agency's (EPA's) rules governing the issuance of primary nonferrous smelter order (NSO) regulations, are entitled to attorneys fees under Clean Air Act § 307(f), but that the award must be reduced for poor documentation and lack of success on one issue. In the case on the merits, 12 ELR 21037, petitioners advanced three arguments: that EPA's procedures in promulgating the NSO regulations were improper; that EPA's regulations concerning a financial test for NSO eligibility violated the Clean Air Act; and that EPA did not have statutory authority to require a particular treatment for sulfur dioxide streams. The court ruled favorably on petitioners' first two claims, but rejected the sulfur dioxide streams argument. In this rehearing on the question of petitioners' attorneys fees, the court first notes that § 307(f) does not limit fee awards to prevailing parties, although this court determined in Sierra Club v. Environmental Protection Agency, 15 ELR 20869, that § 307(f) does not entitle parties to fees for issues on which they were not successful. The court then holds that petitioners are not entitled to fees for time spent on the sulfur dioxide streams issue. Petitioners' attempt to interpret the court's conclusion on this issue as a failure to reach the merits rather than as a loss is wrong. Although the court did not reach the question of whether installation of an additional plant to treat the sulfur dioxide streams conflicted with the Clean Air Act, it did specifically disagree with petitioners' argument that EPA's regulations required such installation. The court holds that if the amount of time spent on this issue cannot be discerned from the record, the overall fee award is to be reduced by one-third.

The court holds that the fee award should not be reduced for petitioners' failure to succeed on one argument concerning the financial eligibility test. Although the court rejected petitioners' argument that imposition of the financial eligibility test usurped the exclusive regulatory power of the states, it accepted petitioners' first argument that the test conflicted with the statute. The court holds, however, that the overall fee award must be reduced by 15 percent, after the reduction for failure on the sulfur dioxide streams issue, due to inadequate documentation. Not only did petitioners not supply contemporaneous time logs detailing the hours spent on each issue in the litigation, but the documents they did supply insufficiently break down the hours. The court rejects petitioners' argument that since these fees were submitted to a private client, the forces of the market will ensure that bills are not inflated. Finally, the court refers a number of factual issues raised by EPA concerning the reasonableness of the fee request to a magistrate for determination. In a note, the court rejects EPA's argument that petitioners' attorneys should be compensated not at their normal billing rate but at the same rate as environmental lawyers regularly handling such issues, holding that the actual billing rates used were appropriate.

Counsel for Petitioners
Bruce C. Swartz, Nancy C. Shea
Shea & Gardner
1800 Massachusetts Ave. NW, Washington DC 20036
(202) 828-2000

Counsel for Respondent
Carl Strass
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2682

Before: BORK, STARR, and SILBERMAN, Circuit Judges.