Environmental Defense Fund v. Thomas

No. 85-1747 (D.D.C. August 19, 1986)

The court grants attorneys fees and expenses of $49,738.14 under Resource Conservation and Recovery Act (RCRA) § 7002 for costs of challenging Environmental Protection Agency (EPA) and Office of Management and Budget (OMB) delay in promulgating underground waste disposal tank regulations under RCRA § 3004(w). After reviewing the underlying litigation challenging EPA's and OMB's actions in promulgating the underground waste disposal tank regulations, the court holds that plaintiffs prevailed on some of the significant issues of the litigation, and acted as a catalyst to EPA and OMB acknowledgement of the unlawfulness of their delay. The litigation resulted in a court-ordered schedule for promulgation of the regulations, and declaratory relief that OMB interference after statutory or judicial deadlines had passed was illegal. The court notes that EPA and OMB contested the court's ruling in the litigation, and holds that plaintiffs have reached the necessary threshold of having been a prevailing party in the underlying litigation.

The court then holds that the plaintiffs' specific requests for fees and expenses are reasonable. The plaintiffs were sufficiently successful in achieving their goals so as not to merit a reduction of fees on this basis. The court observes that plaintiffs voluntarily reduced their request to account for incomplete success, and the hourly rates imputed are below those locally prevailing for lawyers of similar experience. The court awards $48,910.75 in attorneys fees and $827.39 in expenses.

[The opinion in the underlying litigation appears at 16 ELR 20250 and is analyzed at 17 ELR 10017.]

Counsel for Plaintiffs
Robert V. Percival, David J. Lennett
Environmental Defense Fund, Inc.
1616 P St. NW, Washington DC 20036
(202) 387-3500

Counsel for Defendants
F. Henry Habicht II, Margaret N. Strand, Robert E. Steinberg, Barry S. Neuman
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2716

[17 ELR 20283]

Flannery, J.:

Memorandum

This matter comes before the court on plaintiffs' motion for award of attorneys' fees and expenses. The motion was filed June 18, 1986. Defendants responded July 14, 1986 and plaintiffs replied July 23, 1986. For the reasons set forth below, plaintiffs' motion is granted.

I. Background

Under 42 U.S.C. § 6924(w), which is Section 3004(w) of the Resource Conservation and Recovery Act ("RCRA"), the Environmental Protection Agency ("EPA") was told by Congress to promulgate by March 1, 1985 final permitting standards for underground waste disposal tanks that cannot be entered for inspection. EPA failed to meet that deadline. On May 30, 1985, plaintiffs, the Environmental Defense Fund and two individuals, filed suit to compel issuance of the final permitting standards. Plaintiffs sought a declaration from this court that EPA's failure to promulgate was in contravention of the law and an order that EPA must issue the regulations by April 25, 1986. Plaintiffs also sought a declaration and injunction preventing the Office of Management and Budget ("OMB") from unlawfully interfering with issuance of the regulations and future regulations under the RCRA.

While defendants EPA and OMB conceded this court's jurisdiction over EPA, defendants strongly contested this court's jurisdiction regarding any declaration or injunction concerning OMB. Defendants formulated a schedule by which the standards could be issued, with June 30, 1986 as the final date.

After the parties briefed this matter as cross-motions for summary judgment, this court issued a Memorandum and Order on January 23, 1986. The court determined and declared that defendant EPA failed to perform its mandatory duty under Section 3004(w) of the RCRA and ordered that no later than June 30, 1986, EPA must promulgate final permitting standards. Further, the court determined and declared that defendant OMB has no authority to delay the promulgation of such standards by withholding approval of the standards past June 30, 1986. Finally, the court determined and declared that OMB has no authority to delay the promulgation of other EPA regulations arising from the Hazardous and Solid Waste Amendments of 1984 of the RCRA by withholding approval past statutory or judicial deadlines.

Defendants moved to alter, amend, or clarify this ruling. Defendants continued to assert that this court had no jurisdiction to fashion relief that implicates OMB with regard to RCRA. The court denied defendants' motion on March 6, 1986.

Plaintiffs now seek an award of attorneys' fees and expenses. Section 7002 of RCRA, 42 U.S.C. § 6972 (Supp. 1986), permits citizens suits to enforce provisions of the RCRA, and allows this court to award "costs of litigation (including reasonable attorney and expert witness fees) to the prevailing or substantially prevailing party, whenever the court determines such an award is appropriate." 42 U.S.C. § 6972(e) (Supp. 1986). Plaintiffs contend that they are prevailing parties, entitled to $47,980.75 in attorneys' fees and $827.39 in expenses, totalling $48,808.14. Plaintiffs itemize the number of hours spent on each pleading by each attorney, less time spent on defendants' motion for a protective order and less ten percent overall since the final date ordered was different from that sought by plaintiffs. Plaintiffs then multiply the hours by hourly rates comparable to market rates based on affidavits from attorneys in private firms.

Defendants oppose the award of any fees or expenses for three reasons. First, defendants believe that plaintiffs failed to prevail on any issue for which they sought relief. As defendants see it: (1) EPA conceded from the start that the RCRA statutory deadline had not been met; (2) the date this court set for EPA to promulgate the permitting standards was not the date sought by plaintiffs; and (3) though plaintiffs sought injunctive relief against OMB, the court did not declare that OMB has no authority to review RCRA regulations subject to statutory deadlines, did not find that OMB violated the Administrative Procedure Act, did not find that OMB acted in excess of its statutory authority in requiring EPA to submit to OMB the proposed regulations and did not order OMB to refrain from requiring review of future proposed regulations.

Second, even if plaintiffs could be said to have prevailed in this suit, they are not entitled to fees or expenses because under the RCRA fees are only recoverable with regard to matters in furtherance of a claim against EPA that EPA failed to carry out a non-discretionary duty under the RCRA. Matters involving OMB do not fit under the RCRA; therefore no fees are allowed since sovereign immunity has not been waived. Defendants characterize plaintiffs' effort as not one to advance the goals of the RCRA but rather one to secure a generic ruling that OMB could not review regulations subject to a congressional deadline. That effort failed.

Third, defendants challenge plaintiffs' basis for fees and expenses. Defendants believe plaintiffs should break down into issues and parties the time spent. Defendants contend that the hours are unreasonable: 42 hours are not needed to prepare for taking a 4.5 hour deposition, nor are 34.5 hours needed to prepare for a two-hour oral argument before the court.

II. Analysis

As defendants admit, Hensley v. Eckerhart, 461 U.S. 424 (1983), sets forth the standards generally applicable in all cases in which Congress has authorized an award of fees to a prevailing party:

Plaintiffs may be considered prevailing parties for attorneys' fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit. . . . Thisis a generous formulation that brings the plaintiff only across the statutory threshold. It remains for the district court to determine what fee is "reasonable."

461 U.S. at 433. This circuit has found that plaintiffs must prevail and must also "have served the public interest by assisting in the proper implementation of the statute." Sierra Club v. EPA, 769 F.2d 796 [15 ELR 20869] (1985).

Plaintiffs prevailed on some of the significant issues in this litigation and achieved plaintiffs' primary goal. Plaintiffs' suit prompted [17 ELR 20284] EPA to propose publicly the section 3004(w) final permitting standards. This court firmly believes that this case acted as a catalyst forcing EPA and OMB to acknowledge that not promulgating the standards by March 1, 1985 was unlawful, as was delay imposed by OMB in contravention of Executive Order 12291. Pursuant to the filing of this suit, EPA set up and was ordered to follow a schedule for promulgation of the standards. Defendants strenuously argued against any declaration implicating the authority of OMB to review regulations being considered by EPA. Though injunctive relief did not issue, this court clearly granted plaintiffs' request that declaratory relief issue recognizing that OMB interference with EPA after statutory or judicial deadlines had passed was in contravention of federal law. Such an overall result merits an award of attorneys' fees. Moore v. National Ass'n of Securities Dealers, 762 F.2d 1093, 1098 (D.C. Cir. 1985). There is no need for plaintiffs to show that they received all relief requested in their complaint. Nor is it significant that the court gave EPA 60 more days to promulgate the regulations than the 270 days sought by plaintiffs. Clearly defendants contested this court's ruling through their motion to alter, amend, or clarify because they felt they had not received the ruling they wanted. Therefore, it can be said that plaintiffs reached the statutory threshold of being a "prevailing party." What is left is to determine what fees and expenses are reasonable.

After careful review of plaintiffs' filings, this court finds that plaintiffs' request for fees and expenses is reasonable. Declaratory relief implicating OMB was granted on the basis that it was necessary for the functioning of EPA under RCRA. This relief met plaintiffs' primary goal by ensuring promulgation of final permitting standards. Though it did not remove OMB from all substantive involvement in EPA decisionmaking, plaintiffs achieved "some of the benefit the parties sought in bringing suit." Trahan v. Regan, 625 F. Supp. 1163, 1165 (D.D.C. 1985). Since a fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the law suit, Hensley, 461 U.S. at 435, this court is unwilling to reduce the fee requested by plaintiffs on that basis.

Plaintiffs voluntarily reduced the hours for which recovery is sought to reflect aspects of the case on which they were not totally successful (e.g. the final date). The hourly rates used are below those that prevail in the District for attorneys with the same extensive experience as plaintiffs' attorneys. From the voluminous papers and strenuous arguments made by defendants in this case, it is not surprising that plaintiffs spent many hours preparing and defending their contentions. Plaintiffs have filed a detailed breakdown of the hours spent on each aspect of the case, accompanied by day-by-day time records prepared contemporaneously during the litigation. See National Ass'n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1327 (D.C. Cir. 1982). Plaintiffs' reply brief adequately explains the hours required for the tasks pointed to by defendants as excessive.

Therefore, plaintiffs are entitled to the initial amount of $47,980.75 requested for attorneys' fees. Plaintiffs are also entitled to $930 in additional attorneys' fees for preparation of their reply memorandum in support of the motion for attorneys' fees. Defendants' opposition to that motion made it necessary for plaintiffs to research and buttress their application. Thus the total award to plaintiffs is $48,910.75 in attorneys' fees and $827.39 in expenses, for a total amount of $49,738.14.

An appropriate Order accompanies this Memorandum.

Order

This matter comes before the court on plaintiffs' motion for award of attorneys' fees and expenses. After consideration of plaintiffs' motion, the opposition thereto, and the entire record herein, it is, by the court, this 18th day of August, 1986,

ORDERED that defendants United States Environmental Protection Agency and Office of Management and Budget shall pay plaintiffs $49,738.14 in attorneys' fees and expenses.