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Friends of the Earth v. Eastman Kodak Co.

ELR Citation: 18 ELR 20229
Nos. Nos. 87-7301, -7361, 834 F.2d 295/26 ERC 20001/(2d Cir., 12/03/1987) Aff'd

The court holds that environmental groups are entitled to attorney fees and expenses in a Federal Water Pollution Control Act (FWPCA) citizen suit that resulted in a consent decree in which defendant agreed to make a $49,000 contribution to an environmental organization, but the district court properly decreased the lodestar due to plaintiffs' minimal success on the merits. Although fees and expenses were appropriate within the meaning of the FWPCA and the Supreme Court's decision in Ruckelshaus v. Sierra Club, 13 ELR 20664, the district court did not err in decreasing the lodestar on the grounds that plaintiffs met with insufficient success to justify their proposed lodestar. The court holds that the lower court properly concluded that there was no basis for including a contingency factor in the award. The risk to plaintiffs' counsel was slight, since the evidence consisted of defendant's own discharge monitoring reports, which have been held sufficient to entitle a plaintiff to summary judgment. Moreover, the settlement suggests that there was no significant pollution problem.

[The district court's opinion is published at 17 ELR 20828.]

Counsel for Plaintiffs-Appellants, Cross-Appellees
Bruce J. Terris
Terris, Edgecombe, Hecker & Wayne
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Counsel for Defendant-Appellee, Cross-Appellant
Jonathan P. Nye
Whiteman, Osterman & Hanna
One Commerce Plaza, Albany NY 12260
(518) 449-7600

Before Oakes and Kearse, JJ.