Natural Resources Defense Council, Inc. v. Environmental Protection Agency

No. 81-2068 (3d Cir. March 23, 1983)

ELR Digest

The court grants the Natural Resources Defense Council's (NRDC's) petition for attorneys fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(A), for its challenge to the Environmental Protection Agency's (EPA's) indefinite postponement of the effective date of Federal Water Pollution Control Act (FWPCA) pretreatment regulations. Initially, the court rules that the EAJA authorizes the award of fees in an FWPCA § 509 appellate action even though the FWPCA only expressly provides fees for § 505 citizen suits. The legislative history of the EAJA makes clear that Congress intended to authorize fees where they were not previously available, including both statutes that had no fee provisions and those that offered fees under some, but not all, sections establishing private rights of action.

Next, the court rules that the EAJA provision awarding fees unless the "position" of the United States is substantially justified refers to an agency's "position" in its administrative action, not the government's litigation stance. If only the litigation position of the government is considered, the Justice Department could negate the effect of the EAJA with regard to improper agency action simply by taking a reasonable position in litigation. Not only does this result conflict with the definition of "United States" in the statute, which includes the agencies of the government, but it has been rejected by a number of courts. Moreover, the legislative history of the EAJA makes clear that Congress intended to create an incentive for responsible agency action, not responsible federal litigation. The court rejects as illogical and unsupported EPA's argument that the origin of the substantial justification language in FED. R. CIV. P. 37 evinces an intent to focus the provision on litigation behavior. Nor does the fact that the legislative history indicates that fees could be awarded if the government's litigation position was unjustified demonstrate that they could be awarded only in those circumstances.

The court holds that EPA's position on the pretreatment regulations, which plaintiff challenged, was not substantially justified. EPA's indefinite postponement of the pretreatment rules was a model of bureaucratic arbitrariness. Nor did the Agency correct the wrong by changing its position in litigation, because it still forced petitioner to brief and argue the case. Next, the court awards the full amount of fees requested. It grants fees for services performed prior to the effective date of the Act, because the statute clearly authorizes fees in cases pending on its effective date. It awards fees for time spent in pursuing a Freedom of Information Act request, because the Act allows reimbursement of costs reasonably necessary for preparation of the case. The court also finds that petitioner's fees and costs are adequately documented and that the group is entitled to fees at a higher rate than specified in the statute because of increases in the cost of living.

A concurring opinion would award fees only where the government's administrative position was unjustified and the problem was not correct in litigation.

A dissent would hold that the EAJA allows fees only if the government's litigation position was substantially unjustified and would deny them in this case.

The full text of this opinion is available from ELR (47 pp. $6.50, ELR Order No. C-1294).

Counsel for Petitioner
Frances Dubrowski
Natural Resources Defense Council, Inc.
1725 I St. NW, Suite 600, Washington DC 20006
(202) 223-8210

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

Counsel for Intervenor
John M. Cannon
Mid-America Legal Foundation
20 N. Wacker Dr., Suite 842, Chicago IL 60606
(312) 263-5163

Gibbons, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]