D.C. Circuit Articulates Liberal Standards for Attorneys Fees

J. B. Dougherty

In October of 1980 the National Wildlife Federation and two Alaskan communities lost in their bid to obtain an injunction against the Department of the Interior's sale of oil and gas development leases in the Beaufort Sea.¹ Nevertheless, they negotiated with the Department of Justice a stipulation under which they would receive just under $60,000 in attorneys fees, pursuant to the attorneys fees provisions in the Endangered Species Act and the Outer Continental Shelf Lands Act. However, several months later, counsel for the government informed the district court that it had changed its mind regarding the stipulation, and moved the court to deny any fees whatsoever to the plaintiffs, reportedly due to a high-level policy decision that fees should be limited to winning parties.

Judge Robinson ruled that plaintiffs were entitled to fees, and that the sums specified in the now-dishonored stipulation seemed to constitute a "modest" but appropriate award.² He made clear that he viewed this as a middle course by noting that plaintiffs could have made a good case for a much larger award, perhaps as much as $200,000.The government, however, failed to take the hint and renewed its opposition, requesting reconsideration of the decision.This time Judge Robinson was no longer inclined to compromise. After reviewing plaintiff's [12 ELR 10048] submissions regarding fees and expenses, he awarded them $230,000, and added insult to injury by criticizing the federal defendants' apparent lack of concern over wasteful government spending.³

On February 5 of this year, the Court of Appeals for the D.C. Circuit released three separate opinions⁴ making substantial fee awards to environmental plaintiff which had sued the Environmental Protection Agency (EPA). The decisions are significant both for the considerable size of the awards and for the consistency of their rationale. Only one member of one of the panels was heard in dissent.⁵ Particularly in contrast to the preexisting case law on this subject, which was somewhat sparse and dated, these opinions stand out as particularly strong statements that will undoubtedly serve as a reference in all future litigation of this kind.

Background

It was in 1970 that Congress first determined to use attorneys fees awards as a means of encouraging vigorous citizen enforcement of environmental statutes. Then, as today, the prevailing common law doctrine was the "American rule," under which every party to a lawsuit presumptively bears its own expenses.⁶ But Congress, when rewriting the Clean Air Act, was looking for ways to overcome "restrained"⁷ and "notoriously laggard"⁸ governmental enforcement of clean air laws. As an inducement to concurrent enforcement of the Act by citizens and public interest groups, Congress enacted a citizen suit provision⁹ and expressly authorized awards of attorneys fees.¹⁰

The experiment proved successful. So much so that in the 1977 Amendments Congress amended the Act's judicial review provision, which provides for appellate review of EPA administrative determinations, to authorize fee awards.¹¹ Moreover, Congress inserted virtually identical language in the Federal Water Pollution Control Act,¹² noting that:

in bringing legitimate actions under this section, citizens would be performing a public service and in such instances, the courts should award costs of litigation to such party.¹³

Citizen suits and attorneys fees provisions have become so prevalent that environmental statutes without such features are now the exception.¹⁴

Attorneys fees provisions fall into three general categories. In the first category lie those authorizing awards of fees to "any prevailing party."¹⁵ This is a straightforward reversal of the American rule. Yet perhaps because it is sometimes difficult to ascertain the prevailing party in a complex case seeking a broad equitable remedy, in other statutes Congress authorized fee awards to any party who has "substantially prevailed.c¹⁶ In a third category the standard is relaxed even further. Concerned that fee awards conditioned on success would deter the bringing of meritorious but not clearly "winning" citizen suits, Congress rejected the "prevailing" standard in favor of the more relaxed "appropriate" standard.¹⁷ Under this standard, fees must be paid where an award has been determined by the court to be "appropriate," irrespective of whether the party has prevailed. Thus, even losing parties may win substantial fees from the government where they can convince the court that an award is appropriate.

Attorneys fees provisions in environmental statutes, without apparent exception, fall into the latter category. Not surprisingly, these "generous"¹⁸ measures have had the intended effect of encouraging the filing of lawsuits against EPA, which administers most of the statutes, and, to a lesser extent, other agencies such as the Department of the Interior. While it would be wrong to suggest that environmental groups and aggrieved individuals are not deterred by economic considerations from commencing litigation under these statutes, the prospect of a fee award, particularly in light of the latest cases, lowers this barrier. Fees awarded in such cases rarely constitute a substantial portion of the revenues of public interest law firms and environmental groups, but their contribution can be important since the amount of such awards often exceeds the cost of the litigation by a sizable margin.

Despite its relatively greater tendency to encourage citizen suits, the adoption of the "appropriate" standard presented a drawback: it replaced the not always easily applied "prevailing" standard with an even more vague [12 ELR 10049] and open-ended grant of discretion to the court. The term "appropriate" is all but meaningless in the absence of legislative policies or other criteria to provide reference, and the legislative history of the Clean Air Act provides disappointingly little reference. Subsequent enactments compounded the problem by relying on the Air Act as a model.¹⁹ Thus, early attempts to determine fee eligibility were somewhat halting.²⁰ However, in light of the decisions handed down by the courts of the D.C. Circuit in the last year or so, most of the outstanding issues have been resolved, and the general rules governing fees can be articulated with confidence.

When is an Award Appropriate?

Since the "appropriate" standard was intended to be more "liberal" than either the "prevailing" or "substantially prevailing" standards, it seems clear that anyone who prevails in a citizen suit is entitled to recover fees. Although there is dictum in Sierra Club v. Gorsuch²¹ suggesting, to the contrary, that it might be inappropriate to award fees to a prevailing party under certain, unspecified circumstances, such circumstances are difficult to imagine.²² A closer and more important question concerns plaintiffs who prevail in part or not at all.

When evaluating non-prevailing parties' entitlement to fees, the courts have expressed several variants of a few major themes. One test that emerges from the early cases is whether the unsuccessful litigant nevertheless served the objectives of the operative statute "in some substantial way."²³ This test was intended to turn on the existence of demonstrable public benefits from the bringing of the suit,²⁴ such as persuading a private defendant to pollute less,²⁵ or displaying publicly a record of governmental non-enforcement.²⁶ For example, in Metropolitan Washington Coalition for Clean Air v. District of Columbia,²⁷ the district court denied fees to the unsuccessful plaintiffs, noting that although the emissions from the offending stationary source had been abated, those emissions had been determined to pose no threat to the public health. Thus, the litigation had not "tangibly benefited" the public. Although there is a trace of support for this stance in the legislative history of the Clean Air Act.²⁸ it is more solidly rooted in an exception to the "American rule" which permits recovery of attorneys fees where the litigation confers a "common benefit" on the public.²⁹

However, on appeal in Metropolitan Washington Coalition, the D.C. Circuit implicitly rejected the lower court's reliance on the common law, and explicitly overruled its restrictive reading of the Act's attorneys fees provision:

We think the District Court incorrectly focused its attention on the practical effects of the litigation, to the exclusion of a more relevant consideration: whether the suit was of the type that Congress intended to encourage when it enacted the citizen suit provision.³⁰

The difficulty with the district court's rationale, according to the court of appeals, is that it calls for a posthoc search for public benefits that may frustrate the "legitimate expectations" of the plaintiffs at the time the suit was commenced. A proper recognition of the purpose of citizen suit provisions requires fees to be awarded in any case which represents a "prudent and desirable effort to achieve an unfulfilled objective" of Congress, without regard to the outcome or measurable public benefits, provided that such an award would be "in the public interest."³¹

This mandate was applied in a two-part fashion by the district court in the Beaufort Sea litigation. Judge Robinson [12 ELR 10050] held first that the suit was "precisely the type envisioned by Congress" since it sought to protect an endangered species as well as the environment of Alaska's North Slope, concerns which are addressed directly in the Outer Continental Shelf Lands Act and the Endangered Species Act. As to why an award was in the public interest, the judge was less direct. Among the apparent reasons were that (1) the legal questions raised were novel and complex, (2) plaintiffs' claims were well-founded and argued expertly, and (3) important national interests were at stake.³²

A consistent though slightly different approach was followed by the D.C. Circuit in Sierra Club v. Gorsuch.³³ In determining the appropriateness of an award the court looked first at the significance of the case in terms of the environmental and economic interests at stake, the complexity of the legal issues, their novelty, and their precedential significance. The importance of this case, which involved a multi-faceted and multiple-party challenge to the exhaustively documented regulations applying the "percentage reduction" requirements of § 111 of the Clean Air Act to coal-fired power plants,³⁴ was clearly of the first order. Second, the court examined the substance of the environmental groups' "assistance" to the proceeding, ultimately lavishing praise on them for the quality of their presentations. The court concluded that the petitioners had more than met their burden in demonstrating their right to fees.

What is most notable about these decisions is that the environmental groups prevailed in each instance, even where their arguments on the merits had been resoundingly rejected. The courts' readiness to award fees thus seems unhindered by any lingering loyalty to the "prevailing" standard or the traditional common law rules.

What is a "Reasonable" Fee?

The task of assessing reasonable fee awards would be a less rational exercise were it not for the logical framework spelled out by the D.C. Circuit last year in Copeland v. Marshall.³⁵ Because Copeland was an employment discrimination suit brought under Title VII of the Civil Rights Act, it does not address the question of when a few award is appropriate: under Title VII fees are awarded only to prevailing parties. In other respects, however, Copeland governs the setting of fees under the environmental statutes.³⁶

Hours

The first step is to determine the number of hours reasonably expended by counsel. The reasonableness of the hours claimed deserves emphasis because it is consistently distinguished by the courts from the number of hours actually consumed. To determine the hours reasonably expended, the number of hours actually spent must be reduced in several ways.

Obviously, time spent on claims for which fees are not recoverable must be excluded. In Beaufort Sea, for example, a large fraction of plaintiffs' efforts were spent on a National Environmental Policy Act claim and an argument concerning the federal government's alleged trust obligations to native Alaskans.³⁷ In addition, "unproductive hours," e.g., "time not properly billed"³⁸ or work that was unduly duplicative of other lawyers' work, must also be deducted. Thus, time spent rebutting "frivolous" arguments by other parties cannot be charged.³⁹ Similarly, where three attorneys represented one party at a status call and only one was required, the excess hours were struck.⁴⁰

This does not mean that counsel must cut corners if their hours are to pass muster.In not one of the recent cases did the court find any party to have spent "too much time" on any piece of work. Indeed, in Beaufort Sea, the court upheld plaintiffs' use of eight lawyers at every hearing but the status call.⁴¹

Documentation

Naturally, claims of hours spent must be accompanied by proper documentation. How detailed need this documentation be? It is unnecessary to submit daily time logs, although in a major fee dispute time logs might be demanded by the court.⁴² Short of submitting logs, however, detail is helpful to the court and thus the petitioner's cause.

At a minimum, each attorney should identify the number of hours he or she devoted to specific tasks, such as individual pleadings, conferences, hearings, etc. Time spent on work that is not easily segregable, such as "planning," is nevertheless compensable even though less well documented than other work.⁴³ Where more than one attorney is involved, records may best be compiled in tabular form.

Copeland suggests that it is sufficient to identify merely the general natural of the activities accounted for, such as "discovery":

It is not necessary to know the exact number of minutes spent nor the precise activity to which each hour was devoted nor the specific attainments of each attorney. But without some fairly definite information as to the hours [12 ELR 10051] devoted to various general activities, e.g., pretrial discovery, settlement negotiations, and the hours spent by various classes of attorneys, e.g., senior partners, junior partners, associates, the court cannot know the nature of the services for which compensation is sought.⁴⁴

But is is better to err on the side of excessive detail. In EDF v. EPA an entry listing 16 hours spent on "monitoring of post-decision petitions for rehearing" was reduced by 75 percent, apparently for lack of sufficient support.⁴⁵ On the other hand, in the same case each of the three attorneys submitted lengthy written declarations in addition to daily time logs. This, the court noted, was "more than enough to satisfy the test set forth in Copeland."⁴⁶

What is a Reasonable Hourly Rate?

In arriving at a reasonable hourly rate, Copeland instructs courts to attempt to ascertain the "market value" for the services rendered.⁴⁷ Under this approach a reasonable rate is "that prevailing in the community" for similar work."⁴⁸ The prevailing rates for legal services can not be simply read out of a bar directory,⁴⁹ but are usually determined, it seems, on the basis of judicial notice and fees awarded in prior cases. Other factors which are used to determine a reasonable rate in a given case include the attorney's experience and reputation, the level of skill necessary to prosecute the action, the amount sought in the suit, the undesirability of the case, and any unusual time constraints.⁵⁰

A number of criteria have been held inapplicable to the setting of rates. The cost of the services rendered, even if adjusted upward to offer a profit, shall not be considered since it does not reflect the worth of the services.⁵¹ In the case of public interest attorneys, the rates at which they normally bill their clients must be disregarded because, almost by definition, they bill at rates lower than those prevailing in the marketplace.⁵² Similarly, the wages paid public interest attorneys are irrelevant,⁵³ as is the fact that the representation may have been undertaken pro bono publico.⁵⁴

The cases reveal that the two most significant determinants of reasonable rates are the experience of the attorney and the rate of compensation that he or she seeks. For example, in the Beaufort Sea litigation, counsel for plaintff North Slope Borough consisted of three lawyers who were characterized as either "very experienced" (over 20 years experience), "less experienced" (four to eight years), and "inexperienced" (less than four years). They were ruled to be entitled to the following rates per hour, respectively: $125, $80, and $65.⁵⁵ Yet, one of the lawyers for another plaintiff in the Beaufort Sea case, the National Wildlife Federation, had more than nine years experience and thus was characterized as an "experienced" attorney. However, he sought an hourly rate of only $65.⁵⁶ In EDF v. EPA, petitioner's three attorneys had 11, nine, and two years of experience, respectively. Dismissing EPA's objections, the court awarded them their claimed hourly rates of $110, $90, and $50.⁵⁷ Hourly rates found reasonable in other cases are in the same range.⁵⁸

Adjustments to the Lodestar

The product of the "hours reasonably expended" and the "reasonable hourly rate" is referred to as the "lodestar." Calculation of the lodestar is in some ways only the first step in the analysis. Roughly a half dozen additional factors are to be considered by the court in making "adjustments to the lodestar." These adjustments should not be overlooked by fee claimants, since they can increase the size of an award by a large proportion.⁵⁹ But they are not properly thought of as a reward or bonus:

In truth and in essence, a lodestar readjustment is an attempt to calculate more precisely the market value of the services provided by the attorney.⁶⁰

Quality of Representation

A "quality of representation" adjustment may be made where the quality of the work performed by the attorney was significantly better or worse than that expected [12 ELR 10052] of someone of commensurate reputation, skill, and experience.⁶¹ It bears emphasis that a superlative performance does not necessarily entitle the attorney to an upward adjustment in the lodestar. An expectation of a certain level of quality is implicit in the hourly rate approved for the attorney; only when the quality of the performance differs significantly from the expectation is an adjustment appropriate. Thus, high-quality work by a very experienced attorney may not justify a lodestar adjustment.⁶² But work of the same quality is not expected of an inexperienced attorney and would merit an increase in the lodestar. Or, an increase may be in order where an experienced attorney seeks an hourly rate less than that of his or her peers.⁶³

Outcome

The outcome of the litigation may bear on the quality-or-representation adjustment. In Title VII cases, of course, success alone does not support a lodestar adjustment because it is a prerequisite to an award.⁶⁴ In environmental cases, on the other hand, non-prevailing parties may recover fees and therefore a victory, particularly a strong one, may counsel a lodestar increase. By the same token, a lack of success weighs against an increase,⁶⁵ and could be cited as support for a decrease. It has also been suggested that

when non-prevailing public interest groups seek attorneys' fees, the amount of the award is legitimately affected … by the fact that such parties are self-appointed representatives of the public interest.[n11]

n11 … [P]etitioners, as surrogate attorneys for the interests of the public and the EPA, have volunteered and "imposed" their services on "clients" that never contracted for them. As attorneys for involuntary clients, their fees may properly be less than those they could have received by entering the marketplace and selling their services to the private client who would make the highest bid for them.⁶⁶

Contingent Nature of Award

Another difference between Title VII and environmental cases is that in the former, the lodestar may be adjusted to reflect "the contingent nature of success" i.e., counsel's willingness to risk receiving no fee.⁶⁷ But in cases brought under environmental statutes with attorneys fees provisions, there may be "little or no risk"⁶⁸ that fees will be denied, at least where the case is legitimate. Lodestar increases on this ground will therefore be rare.

Delay

Finally, an adjustment to the lodestar is appropriate where payment has been delayed by the government⁶⁹ or where a significant amount of time has passed between the representation and receipt of the award.⁷⁰ This rule is both a deterrent to foot-dragging by the government bursar and a reflection of the time-value of money and the prevailing rate of inflation. Thus, in Beaufort Sea, the district court increased the lodestar by 15 percent as a penalty for the government's last-minute refusal to abide by an earlier settlement agreement.⁷¹ In Alabama Power, the court authorized an upward adjustment of 25 percent because of the two-year period between the decision on the merits and the fee award.⁷²

In EDF v. EPA, 16 months passed between the decision on the merits and the fee award. Though the court agreed that some increase was justified on this ground, it saw other reasons for keeping the award "modest," i.e., between five and 10 percent.

First, the hourly rates claimed by EDF are current market rates, not those in effect when the case was litigated. Second, EDF did not file its claim for attorneys' fees until August 1981 and a portion of the documentation was not presented until October 1981 (in the EDF Supplementary Motion and the EDF Reply). Finally, the actual period of delay, from the time when all documentation was submitted until EDF is actually paid, should be no more than six months.⁷³

Intervenors and Industry Plaintiffs

In these days of complex and multi-party environmental litigation, intervention is the norm, particularly in actions seeking appellate review of agency decisions. Are intervenors entitled to compensation for attorneys fees? If so, from whom? How about well-heeled industry, governmental, or other plaintiffs who have a sufficient economic interest in the litigation to prosecute the action even without any hope of a fee recovery?

The text of the standard citizen suit provision is ambiguous as it authorizes an award to "any party," whenever "appropriate." If, as suggested by Metropolitan Washington Coalition, an award is appropriate where "the suit was of the type that Congress intended to encourage when it enacted the citizen-suit provision,"⁷⁴ fees to large and well-represented corporate parties are arguably not authorized. Yet if, again referring to Metropolitan Washington Coalition, fees are appropriate "whenever the underlying suit was a prudent and desirable effort to achieve an unfulfilled objective of the Act,"⁷⁵ a good counterargument can be made. The legislative history of [12 ELR 10053] the Toxic Substances Control Act indicates clearly that fees are not to be awarded to parties that can afford to participate or have a significant economic interest in the case.⁷⁶ This legislative history is presumptively pertinent to the construction of the fees provisions in other statutes.⁷⁷

In Alabama Power, the District of Columbia sought reimbursement of the legal costs it had expended as an intervenor. EPA's response was that because the District's position was not "pro-environment" it was ineligible for an award. The court of appeals rejected the Agency's argument outright.⁷⁸ Since the District was presumably promoting its citizens' general welfare rather than its economic health, the court concluded, there is no statutory basis for disallowing a fee. But in the same case two environmental groups sought compensation for work performed as intervenors on EPA's behalf. The court was not sympathetic:

If ever an intervenor can recover attorneys' fees from a party on whose side it participated — a question we do not here reach — the justification would have to be a clear showing of some unique contribution of the intervenor to the strength of that party's legal position. Here, the environmental groups have not demonstrated with any sort of particularity that their intervention added in any essential way to EPA's stance on the issues involved. Without deciding more, we hold that wherever the bounds on fee awards to such intervenors should be set, this threshold burden has not been met.⁷⁹

Conclusion

Until recently, vigorous disputes over fee awards have been rare. Fee award litigation is time consuming, it displaces other, more important work, and only generates more fees.⁸⁰ Out-of-court settlements are preferred because they are simpler, and perhaps as well because lawyers are naturally less disputative when it comes to putting their clients' money into each others' pockets. But the new Administration's instincts for fiscal conservatism, and its generally poor relations with public interest groups has led it to oppose such awards aggressively. That proved to be a mistake in the cases that emerged recently from the D.C. Circuit.

As a group, these cases provide a thorough exposition⁸¹ of the rules governing fee awards under environmental statutes. Their impact is likely to be significant not only in fees litigation around the country but in negotiations as well. In sum, they will undoubtedly lead to more and larger awards of attorneys fees in the future.

1. North Slope Borough v. Andrus, 642 F.2d 589, 10 ELR 20832 (D.C. Cir. 1980), rev'g 486 F. Supp. 332, 10 ELR 20115 (D.D.C. 1980). See generally Comment, Circuit Courts Give Go-Ahead to OCS Lease Sales Despite Uncertain Effects on Endangered Whales, 10 ELR 10210 (1980).

2. North Slope Borough v. Andrus, 507 F. Supp. 106, 11 ELR 20293 (D.D.C. 1981).

3. North Slope Borough v. Andrus, 515 F. Supp. 961, 972, 11 ELR 20419, 20423 (D.D.C. 1981). This case is on appeal to the D.C. Circuit, No. 81-1752.

4. Sierra Club v. Gorsuch, __ F.2d __, 12 ELR 20213 (D.C. Cir. Feb. 5, 1982); Alabama Power Co. v. Gorsuch, __ F.2d __, 12 ELR 20218 (D.C. Cir. Feb. 5, 1982); Environmental Defense Fund, Inc. v. Environmental Protection Agency, __ F.2d __, 12 ELR 20315 (D.C. Cir. Feb. 5, 1982). See also Metropolitan Washington Coalition for Clean Air v. District of Columbia, 639 F.2d 802, 11 ELR 20171 (D.C. Cir. 1981); followed, Northern Plains Resource Council v. Environmental Protection Agency, __ F.2d __, 12 ELR 20427 (9th Cir. Mar. 1, 1982).

5. See Alabama Power, 12 ELR at 20222 (opinion of Wilkey, J.).

6. See generally Aleyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 5 ELR 20286 (1975).

7. S. REP. NO. 1196, 91st Cong., 2d Sess. 36 (1970).

8. Id. at 37.

9. Clean Air Act § 304, 42 U.S.C. § 7604, ELR STAT. & REG. 42256.

10. Clean Air Act § 304(d), 42 U.S.C. § 7604(d), ELR STAT. & REG. 42256.

11. Clean Air Act § 307(f), 42 U.S.C. § 7607(f), ELR STAT. & REG. 42259.

12. Federal Water Pollution Control Act § 505(d), 33 U.S.C. § 1365(d), ELR STAT. & REG. 42147.

13. S. REP. NO. 414, 92d Cong., 2d Sess., reprinted in 1972 U.S. CODE CONG. & AD. NEWS 3747.

14. See, e.g., §§ 19(d), 20(c)(2)(a) of the Toxic Substances Control Act (TSCA), 15 U.S.C. §§ 2618(d), 2619(c)(2)(a), ELR STAT. & REG. 41348; § 10(g)(4) of the Endangered Species Act, 16 U.S.C. § 1540(g)(4), ELR STAT. & REG. 41833,, § 520 of the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1427(d), ELR STAT. & REG. 42421; § 105(g)(4) of the Marine Protection, Research, and Sanctuaries Act, 33 U.S.C. § 1415(g)(4), ELR STAT. & REG. 41823; § 7002(e) of the Resource Conservation and Recovery Act, 42 U.S.C. § 6972(e), ELR STAT. & REG. 41921; § 23(a)(5) of the Outer Continental Shelf Lands Act, 43 U.S.C. § 1349(a)(5), ELR STAT. & REG. 42467.

15. See 42 U.S.C. § 2000e-5(k) (Civil Rights Act of 1964 Title VII).

16. See 5 U.S.C. § 552(a)(4)(E), ELR STAT. & REG. 41015 (Freedom of Information Act).

17. See statutes cited at note 14, supra.

18. Alabama Power, 12 ELR at 20218.

19. The legislative histories of the post-Clean Air Act attorneys fees provisions routinely provide that they are modelled on and should be interpreted in consonance with § 304(d) and one another. See, e.g., 122 CONG. REC. 23162 (July 21, 1976) (noting that § 23 of Outer Continental Shelf Lands Act was patterned on provision in Clean Air Act, Federal Water Pollution Control Act, and others); S. REP. NO. 451, 92d Cong., 2d Sess., reprinted in 1972 U.S. CODE CONG. & AD. NEWS 4249-50 (fee provision of Endangered Species Act modelled on that in Marine Protection, Research, and Sanctuaries Act). See also Carpenter v. Andrus, 499 F. Supp. 976, 979 (D. Del. 1980) (Endangered Species Act § 10(g)(4) modelled on Clean Air Act § 304(d)).

20. There appear to have been very few reported cases addressing fee awards under the Clean Air Act in the first decade following its enactment. See NRDC v. EPA, 484 F.2d 1331, 3 ELR 20803 (1st Cir. 1973) (relying on § 304(d) to award fees in proceeding brought pursuant to § 307). Contra, NRDC v. EPA, 539 F.2d 1068, 6 ELR 20777 (5th Cir. 1976); NRDC v. EPA, 512 F.2d 1351, 5 ELR 20323 (D.C. Cir. 1975). See also Delaware Citizens for Clean Air, Inc. v. Stauffer Chemical Co., 62 F.R.D. 353, 4 ELR 20551 (D. Del. 1974) (denying fees to losing plaintiffs); accord, Metropolitan Washington Coalition for Clean Air v. District of Columbia, No. 78-1299, (D.D.C. Jan. 23, April 11, 1979). But see Citizens Ass'n of Georgetown v. Washington, 383 F. Supp. 136, 145, 4 ELR 20860, 20861 (D.D.C. 1974) (awarding fees to losing plaintiffs).

21. 12 ELR at 20213, 20216 n.8 (D.C. Cir. Feb. 5, 1982).

22. Even if a court were to determine that a given case were unusually straightforward and/or inconsequential, at most this might constitute grounds for reducing the amount of the award. See text at note 58 et seq., infra.

23. Delaware Citizens for Clean Air, Inc. v. Stauffer Chemical Co., 62 F.R.D. 353, 355, 4 ELR 20551, 20552 (D. Del. 1974).

24. NRDC v. EPA, 484 F.2d 1331, 1333, 3 ELR 20803, 20804 (1st Cir. 1973).

25. Delaware Citizens, 62 F.R.D. at 355, 4 ELR at 20552.

26. Citizens Ass'n of Georgetown v. Washington, 381 F. Supp. 136, 145, 4 ELR 20860, 20861 (D.D.C. 1974).

27. No. 78-1299 (D.D.C. April 11, 1979).

28. See H.R. REP. NO. 1783, 91st Cong., 2d Sess. 56 (1970) (passage from conference report suggesting that "legitimate" though unsuccessful actions provide a "public service").

29. The "common benefit doctrine" is discussed and applied in Woodland Hills Residents Ass'n v. City Council of Los Angeles, 75 Cal. App. 3d 1, 8 ELR 20046 (Cal. Ct. App. 1977), analyzed in Comment, Attorneys Fees Awards in Public Interest Litigation: Judicial and Legislative Developments in California, 8 ELR 10025 (1978). Cf. Sierra Club v. Lynn, 364 F. Supp. 834, 847-48, 4 ELR 20110, 20117 (W.D. Tex. 1973) (awarding fees to losing plaintiffs in NEPA suit). Cases linking the "common benefit" and other common law theories with the requirements of the Clean Air Act include NRDC v. EPA, 484 F.2d 1331, 3 ELR 20803 (1st Cir. 1973); Delaware Citizens.

30. Metropolitan Washington Coalition for Clean Air v. District of Columbia, 11 ELR 20171 (D.C. Cir. 1981).

31. 11 ELR at 20172. But cf. EDF v. EPA, 12 ELR 20315, 20324 (D.C. Cir. Feb. 5, 1982) (citing "public benefits" as justification for a fee increase under the TSCA).

32. See 507 F. Supp. at 107-08, 11 ELR at 20294; 515 F. Supp. a. 964-65, 11 ELR at 20420.

33. 12 ELR 20213 (D.C. Cir. Feb. 5, 1982).

34. See Sierra Club v. Costle, __ F.2d __, 11 ELR 20455 (D.C. Cir. 1981).

35. 641 F.2d 880 (D.C. Cir. 1980).

36. See Alabama Power, 12 ELR at 20220:

The court today confirms the applicability of the Copeland methodology to environmental statutes using the "appropriate" standard for attorneys' fee awards ….

(Footnote omitted.) Accord, EDF v. EPA, 12 ELR at 20317; North Slope Borough v. Andrus, 507 F. Supp. at 108, 11 ELR at 20294; North Slope Borough v. Andrus, 515 F. Supp. 965-68, 11 ELR at 20420-21.

37. See North Slope Borough v. Andrus, 486 F. Supp. 332, 344-49, 10 ELR 20115, 20117-220 (D.D.C. Jan. 22, 1980). Work on these issues was ruled uncompensable in an unpublished order dated May 1, 1981.

38. 515 F. Supp. at 966 n.21, 11 ELR at 20421 n.21.

39. EDF v. EPA, 12 ELR at 20326. Presumably this rule would apply as well to the raising of frivolous claims.

40. North Slope Borough v. Andrus, 515 F. Supp. at 966 n.21, 11 ELR at 20421 n.21.

41. Id. Considerations offered in support of this result were the complexity of the issues and the competence of opposing counsel. Moreover, this case was a consolidation of three separate cases, and following the consolidation plaintiffs continued to present somewhat different arguments.

42. Copeland, 641 F.2d at 905.

43. Alabama Power, 12 ELR at 20220.

44. Copeland, 641 F.2d at 891, quoting from Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 167 (3d Cir. 1973).

45. 12 ELR at 20321 n.7. But see Alabama Power, 12 ELR at 20220, where the court granted petitioners' undocumented requests for travel and other costs, remarking that "[w]e are content to rely on the integrity of counsel …."

46. 12 ELR at 20320 (emphasis in original).

47. 641 F.2d at 897, 899-900.

48. Id. at 898. Followed, EDF v. EPA, 12 ELR at 20323; North Slope Borough v. Andrus, 515 F. Supp. at 968, 11 ELR at 20421.

49. North Slope Borough v. Andrus, 515 F. Supp. at 969 n.35, 11 ELR at 20422 n.35 and accompanying text.

50. See North Slope Borough v. Andrus, 515 F. Supp. at 966 n.30, 11 ELR at 20421 n.30 (pointing out that all pleadings had been prepared and filed in a period of only two months).

51. Copeland, 641 F.2d at 896-97.

52. Id. at 899; North Slope Borough v. Andrus, 515 F. Supp. at 968, 11 ELR at 20421.

53. Id. In North Slope Borough v. Andrus the court also rejected the suggestion that the salaries paid government lawyers are a useful measure of the rates to which public interest attorneys are entitled. 515 F. Supp. at 968, 11 ELR at 20421.

54. Copeland, 641 F.2d at 900; EDF v. EPA, 12 ELR at 20318.

55. 515 F. Supp. at 969, 11 ELR at 20422.

56. 515 F. Supp. at 970, 11 ELR at 20422. See note 63, infra.

57. 12 ELR at 20320, 20323.

58. The fees awarded in the following cases should be considered in the context of the date of the decision. See Copeland ($57/hr. for work done in 1974-76, reflecting virtually exclusive use of junior associates); Parker v. Lewis, No. 79-3443 (D.D.C. 1981) ($138/hr., eight years experience), rev'd and remanded sub nom. National Ass'n of Concerned Veterans v. Secretary of Defense, No. 81-1965 (D.C. Cir. Apr. 23, 1982); Roberts v. Solomon, 25 E.P.D. P32,039 (D.D.C. 1981) ($100/hr.); Canton v. Barry, No. 80-1584 (D.D.C. 1981) ($100/hr., 16 years experience); Fells v. Brooks, No. 80-2981 (D.D.C. 1981) ($75/hr., five years experience); Lawrence v. Franklin Investment Co., Inc., No. 78-0919 (D.D.C. 1981) ($75/hr., "less than 10" years experience); Bachman v. Pertschuk, 19 E.P.D. P6,500 (D.D.C. 1979) ($75-$85/hr., six to seven years experience); NAACP v. Bell, 448 F. Supp. 1164 ($100/hr. for work performed in 1975-77, 24 years experience); Adams v. Weinberger, No. 3095-70 (D.D.C. 1976) ($100/hr., two attorneys with 10 and 35 years of experience); Kelsey v. Weinberger, No. 1660-73 (D.D.C. 1975) (same as id.).

59. North Slope Borouth v. Andrus, 515 F. Supp. 961, 11 ELR 20421 (D.D.C. 1981) (73 percent); Keith v. Volpe, 62 F.R.D. 565 (C.D. Cal. 1980) (350 percent).

60. Alabama Power, 12 ELR at 20220-21 n.28.

61. Copeland, 641 F.2d at 893-94.

62. EDF v. EPA, 12 ELR at 20324.

63. North Slope Borough v. Andrus, 515 F. Supp. at 970, 11 ELR at 20422 (D.D.C. 1981) (making larger increase in the lodestar for experienced attorney who claimed an hourly rate of only $65).

64. However, an extraordinarily large judgment or sweeping victory should be considered by the court. Copeland, 641 F.2d at 894.

65. EDF v. EPA, 12 ELR at 20324-25.

66. Sierra Club v. Gorsuch, 12 ELR at 20218 n.11 and accompanying text, quoting from NRDC v. EPA, 484 F.2d 1331, 1338-39, 3 ELR 20803, 20806 (1st Cir. 1973).

67. Copeland, 641 F.2d at 893. Apparently the court was not concened with instances in which Title VII plaintiffs agree to pay their lawyers themselves.

68. EDF v. EPA, 12 ELR at 20324.

69. Copeland, 641 F.2d at 893; North Slope Borough v. Andrus, 515 F. Supp. at 970, 11 ELR at 20422.

70. Alabama Power, 12 ELR at 20221 n.29.

71. North Slope Borough v. Andrus, 515 F. Supp. at 970, 11 ELR at 20422.

72. 12 ELR at 20221 n.29.

73. 12 ELR at 20324.

74. 11 ELR at 20172.

75. Id.

76. The legislative history of TSCA indicates that fees must be denied even to organizations such as nonprofit trade associations if either they or one of their members can afford legal representation or has an interest in the case. See EDF v. EPA, 12 ELR at 20317-18.

77. As shown in note 19, supra, the attorneys fees provisions in the environmental statutes are to be construed similarly. Yet, where a major limitation on fee eligibility is found in the legislative history of only one or a few statutes, blanket generalizations may be inappropriate. See Alabama Power, 12 ELR at 20221 n.33.

78. Alabama Power, 12 ELR at 20220.

79. Id. at 20219 (footnotes omitted).

80. The cases make it clear that time and costs expended on submitting or litigating a fees request are fully compensable under the same standards governing the case-in-chief. See, e.g., EDF v. EPA, 12 ELR at 20325-77.

81. For an exhaustive discourse on the law of attorneys fees, though it unfortunately predates the latest D.C. Circuit decisions by a few months, see E. LARSON, FEDERAL COURT AWARDS OF ATTORNEYS FEES (1981).