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Delaware Valley Citizens' Council for Clean Air v. Pennsylvania

ELR Citation: 15 ELR 20192
Nos. No. 77-619, 581 F. Supp. 1412/20 ERC 1763/(E.D. Pa., 02/24/1984) Attorney fees awarded

The court holds that environmental groups that won substantial relief in litigation to enforce a consent decree requiring the implementation of Pennsylvania's automobile emission inspection and maintenance (I/M) program are entitled to attorney fees and costs under Clean Air Act §304(d). The court first addresses defendants' general objections to plaintiffs' petition for attorney fees. First, the court rejects the argument that plaintiffs can not be compensated for unsuccessful aspects of the litigation. Where plaintiffs have clearly prevailed and won substantial relief, the court will not reduce attorney fees because each of plaintiffs' contentions in a protracted litigation were not adopted. Second, the court holds that plaintiffs may be compensated for work performed by an attorney who failed to keep contemporaneous time records only for those periods for which the records were substantially and accurately reconstructed. Third, although this attorney was also an officer of one of the plaintiff environmental groups and so acted as both attorney and client, it would be inequitable to deny fees because he performed a large part of all the activity for which plaintiffs seek compensation. Fourth, the court rejects defendants' claim that they are not responsible for fees generated in response to activities of the Pennsylvania Legislature since all branches of the government were bound by the consent decree. Fifth, the court holds that plaintiffs are not entitled to compensation for time spent by an attorney at a hearing where he was not the plaintiffs' principal advocate. Also, the court declines to allow plaintiffs to claim escalating hourly rates over the five years of the litigation and instead establishes average rates for the whole period.

In its analysis of plaintiffs' compensable hours for each of the nine phases of the litigation, the court responds to several specific objections raised by defendants. The court holds plaintiffs did not act in bad faith by refusing to agree to defendants' request for an extension to the deadline in the original consent decree for publication of the I/M program regulations and are thus not precluded from recovering fees for time spent enforcing this deadline. Further, the court hols that plaintiffs were protecting their rights as a party to the consent decree and are therefore entitled to compensation for the following activities: preparing comments on the publication of the I/M regulations, negotiating and litigating modifications to the consent decree, seeking enforcement of the decree responding to a number of attempts to intervene by Pennsylvania legislators and the city of Pittsburgh, and acting in associated state court litigation and EPA regulatory activity.

After finding the "lodestar" values for each phase, the court determines that the superior quality of plaintiffs' work and the contingent nature of the case merit the application of a multiplier to the fees awarded in three phases of the litigation. Finally, the court holds that plaintiffs are entitled to certain court reporter and copying costs, but not the costs of an expert witness who never testified in court and was not shown to have helped resolve any issue.

[Related opinions appear at 11 ELR 20952, 20954, 20956; 12 ELR 20191, 20289, 20295, 20533, 20631, 20925; 13 ELR 20426; 14 ELR 20146; 15 ELR 20202.]

Counsel for Plaintiffs
Jerome Balter, James Lanard
Public Interest Law Center
1315 Walnut St., Philadelphia PA 19107
(215) 735-7200

Carol E. Dinkins, Stephen D. Ramsey
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5271

Counsel for Defendants
John M. Hruboucak, Ward T. Williams, Ass't Attorneys General
Office of Chief Counsel
Department of Transportation, Transportation & Safety Bldg., Harrisburg PA 17120
(717) 787-2330

Kenneth A. Gelburd, Deuty Attorney General
Department of Environmental Resources
Fulton Bldg., P.O. Box 2063, Harrisburg PA 17120
(717) 787-2814