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17 ELR 21219 | Environmental Law Reporter | copyright © 1987 | All rights reserved Sierra Club v. GorsuchNo. Civ. 81 2436 EFL (N.D. Cal. April 5, 1983)The court awards attorneys fees to plaintiffs under the Clean Air Act for their challenge to the Environmental Protection Agency's (EPA's) failure to issue emission standards for radionuclides, and applies a multiplier of two for the exceptional quality of counsel's work, contingency, and the undesirability of the case. The court first holds that it may award attorneys fees under Clean Air Act § 304(d) because a "final order" resolving the issue raised by plaintiffs and granting all of their requested relief has been issued in this case. The court next holds that an award of attorneys fees is "appropriate." Plaintiff has served the public interest by bringing this lawsuit, which has clarified defendant EPA's duty to regulate hazardous air pollutants under Clean Air Act § 112(b)(1)(A) and resulted in an order requiring EPA to fulfill its duty. Turning to the calculation of the fees, the court adopts a "blended" approach that combines the "lodestar" approach, which multiplies a reasonable hourly rate by the number of hours worked, with an approach that considers a number of guidelines such as the difficulty of the case and the amount of skill required by the case. The court first determines the number of hours for which fees can be awarded. The court holds that the time spent by plaintiffs' counsel in opposing the arguments of several industry intervenors is compensable. EPA did not oppose the motions to intervene and clearly gained by the intervenors' arguments, which were supportive of EPA's position. Plaintiffs' counsel avoided duplicative work by filing consolidated responses to the arguments of EPA and intervenors. Further, to require EPA to pay for counsel's time spent opposing the intervenors would not affect EPA's ability to seek contribution from the intervenors. The court holds that counsel's time spent consulting with outside scientific experts is compensable because the time was reasonably and prudently spent. The court holds that counsel's time spent in obtaining discovery through the Freedom of Information Act (FOIA), where the information sought was also obtainable by traditional discovery methods, is not compensable. The purpose of the FOIA is not to serve as a substitute for civil discovery, and to conduct dual discovery under the FOIA and through traditional discovery might force the government to scrutinize the dissemination of information in two separate proceedings. The court holds that counsel's limited time spent in public and press relations is compensable because it furthered plaintiffs' interests. The court holds that the time spent by two attorneys at oral argument is compensable because the presence of two attorneys to assist one another was reasonable, especially in light of the large number of EPA attorneys present. In addition, the court holds that time spent in preparing the motion for attorney's fees is compensable because the hours are not excessive and much of the work was done by a law clerk, whose time is billed at a lower rate. After arriving at the total number of compensable hours, the court holds that plaintiff's counsel should be compensated at their requested rate, because EPA failed to present any evidence challenging plaintiff's strong showing of their counsel's competency and the reasonableness of the rates requested. The court next holds that the lodestar should be adjusted upward because of the high quality of plaintiffs' counsel's work. Counsel efficiently and expertly produced a favorable judgment that will benefit the public. The court next holds that an upward adjustment is warranted by the contingent nature of counsel's fee arrangement, especially in light of the smallness of counsel's firm, their reasonable belief at the time that attorneys fees under the Clean Air Act might only be available to the prevailing party, and the formidable nature of their opposition. Finally, the court holds that the fee award should be increased because the case was an "undesirable" one in terms of difficulty and financial risk. The court concludes that a multiplier of two is appropriate. [Decisions in the underlying litigation are published at 12 ELR 20457 and 13 ELR 20231.] Counsel for Plaintiff Counsel for Defendant Dean Dunsmore Lynch, J.: This is an action under the citizens' suit provision of the Clean Air Act ("Act"), 42 U.S.C. § 7401 et seq., brought by plaintiffs Sierra Club and two individuals (collectively "Sierra Club") against the Environmental Protection Agency ("EPA or Agency") and its administrator Gorsuch. Sierra Club alleges that EPA has failed to perform a duty under the Act with respect to establishing national emission standards for radionuclides — a hazardous air pollutant. By Order of October 21, 1981, the court permitted the intervention of three groups potentially affected by regulation of radionuclides: (1) Alabama Power Company, et al., a group comprised of eighty six (86) utility companies; (2) the Fertilizer Institute, Inc., and the Florida Phosphate Council, two non-profit trade associations; and (3) the American Mining Congress, an industrial trade association representing the producers of most of the nation's coal, metals, and industrial and agricultural minerals. On March 8, 1982, the court granted Sierra Club's motion for partial summary judgment and ruled that the EPA had failed to perform its mandatory statutory1 duty to issue proposed radionuclide [17 ELR 21220] emission standards within 180 days of listing them as a hazardous air pollutant. On September 30, 1982, the court ruled that the EPA had failed to meet its heavy burden of demonstrating that it is infeasible or impossible to issue the above-mentioned proposed regulations and ordered that the EPA issue such proposed regulations within 180 days of the entry of its order, filed that same day. Sierra Club v. Gorsuch, 551 F. Supp. 785 [13 ELR 20321] (N.D. Cal. 1982) (per Sweigert, J.). Presently before the court is Sierra Club's motion for entry of final judgment and for an award of attorney's fees. A. Final Judgment and the Appropriateness of an Award of Attorney's Fees Section 7604(d) of the Act provides in pertinent part as follows: The court, in issuing any final order in any action brought pursuant to the [citizens' suit provision] of this section may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. The EPA, collapsing the issues of "finality" and "appropriateness" into a single issue, contends that entry of final judgment and an award of attorney's fees would be premature at this juncture. Specifically, it argues that the Sierra Club has merely been granted preliminary relief and that such organization has not obtained any substantive relief for injuries caused by radionuclide emissions. However, such contention is misdirected. There can be no doubt that the court's order of September 30, 1982 was a "final order" within the meaning of Section 7604(d). That Order, which requires that the EPA perform its non-discretionary duty under Section 7412(b)(1)(B) within 180 days of the date thereof, was clearly "final" as to the EPA's duty in regard to the issuance of proposed regulations under the statute. Moreover, the September 30th Order granted all of the relief sought by the Sierra Club, i.e., that the EPA be required to commence regulating a substance — radionuclide emissions — which such Agency had itself listed as a hazardous air pollutant. As to the issue of whether it would be "appropriate" to award attorney's fees to the Sierra Club, "the dominant consideration [under Section 7604(d)] is whether litigation by [the Sierra Club] has served the public interest by assisting the interpretation or implementation of the Clean Air Act," Alabama Power Co. v. Gorsuch, 672 F.2d 1, 3 [12 ELR 20218] (D.C. Cir. 1982); Metropolitan Washington Coalition for Clean Air v. District of Columbia, 639 F.2d 802 [11 ELR 20171] (D.C. Cir. 1981), or, in other words, has "substantially contributed" to the goals of the Act.2 Sierra Club v. Gorsuch, 672 F.2d 33, 39, 41, 42 n. 10 (D.C. Cir. 1982). In our pending action, an award of attorney's fees would clearly be appropriate. As the EPA properly concedes in its papers opposing the pending motions, Sierra Club has served the public interest by assisting in the interpretation of Section 7412(b)(1)(A) and (B) of the Act. In particular, it has provided such assistance by seeking a determination from the Court that the EPA has a mandatory, as opposed to a merely discretionary, duty to comply with the 180-day limitation period delineated in that section. Moreover, the Sierra Club has assisted in the implementation of the Act by obtaining the above-mentioned September 30, 1982 Order, which in effect, required the EPA to expeditiously regulate air pollutants which it has listed as hazardous — in compliance with the express purpose behind the Act (as amended). See NRDC v. E.P.A., 484 F.2d 1331, 1334 [3 ELR 20803] (1st Cir. 1973); Sierra Club v. Gorsuch, 551 F. Supp. at 787-88 citing 1977 Cong. & Ad. News at 1127-28. Thus, contrary to EPA's assertion, the Sierra Club has in fact "furthered the substantive achievement of the goals of the underlying act" (EPA's Opposition Brief at 5), by assisting in both the interpretation and implementation of the Act. Accordingly, entry of an order of final judgment and an award of attorney's fees are both appropriate at this time. It is to the amount of that attorney's fee award which this court now turns. B. The Amount of the Attorney's Fee Award District courts are granted broad discretion in setting the amount of attorney's fees to be awarded. Manhart v. City of Los Angeles Dept. of Water, 652 F.2d 904 (9th Cir. 1981). In making such a determination, the court should refer to the guidelines set forth in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976), which are as follows: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the "undesirability" of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Not all twelve guidelines need be considered in every case; rather, the court need only base its decision on those guidelines which it considers relevant to the action before it. Moore v. Jas. H. Matthews & Company, 682 F.2d 830, 838 (9th Cir. 1982); Manhart v. City of Los Angeles, 652 F.2d at 908; Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974), rev'd on other grounds, 436 U.S. 547 (1978). In Moore, the most recent Ninth Circuit decision to address the matter, the court indicated that as an alternative to the rigid application of some or all of the Kerr guidelines, a district court might utilize either a "lodestar" analysis or a blend of the lodestar and Kerr approaches. 682 F.2d at 838-41; see also Thornberry v. Delta Airlines, Inc., 676 F.2d 1240, 1242-43 (9th Cir. 1982). Under the "blended" approach, the court fixes a reasonable hourly rate for counsel's services and then multiplies such amount or amounts by the number of hours which each attorney and/or law clerk spent during the case. After this so-called "lodestar" sum is reached, the court, by referring to several of the relevant Kerr guidelines, then decides whether an increase or decrease in the lodestar is warranted. Moore, 682 F.2d at 840-41; see also Keith v. Volpe, 501 F. Supp. 403, 412 (C.D. Cal. 1980). Because this approach has recently been approved by the Ninth Circuit and because it seems well-suited to calculating the amount of fees to be awarded herein, we turn now to apply the "blended" approach in our pending case. Sierra Club seeks compensation for all time spent in the case and has presented tothe court a well-documented compilation of such hours, which breaks down as follows:
The EPA does not dispute that the time spent by Sierra Club's counsel was reasonable, nor does it dispute that most of these hours are compensable. Rather, EPA directs its objections to several types of activity undertaken by counsel, contending that the time spent in these areas is not compensable. First, the EPA argues that attorney's fees should not be assessed for the 36.5 hours spent opposing the industry intervenors. Specifically, the EPA contends that it "gained nothing from the action of the intervenors, took no position on the intervenors' various motions, and had no control over the intervenors." (EPA's Opposition Brief at 8). However, the contention that the EPA "gained nothing from the . . . intervenors" borders on the preposterous. The record shows that the EPA did not oppose the initial motions to intervene and that it was aided every step of the way in this action by the intervenors' pleadings and arguments. Moreover, all positions advanced by the intervenors were in defense of the EPA's interpretation of the statutory provision in question herein. Finally, Sierra Club's counsel successfully avoided duplicative work by filing consolidated responses to the EPA's and intervenors' positions on various motions. For these reasons, the court finds that such hours are compensable. (See Environmental Defense Fund v. E.P.A., 672 F.2d 42, 55-56 [12 ELR 20315] (D.C. Cir. 1982) where the D.C. Cir. awarded attorney's fees for time spent by plaintiffs' counsel opposing intervenors.).4 In addition, the EPA argues that no fees should be awarded for the 12.4 hours spent by attorney Dickson consulting with experts utilized by the Sierra Club. However, this contention is without merit. As the Ninth Circuit stated in another recent case involving an application for attorney's fees: [A] prevailing plaintiff is entitled to recover a reasonable attorney's fee for every item of service which, at the time rendered, would have been undertaken by a reasonable and prudent lawyer to advance or protect his client's interest in the pursuit of a successful recovery. . . . Twin City Sportservice v. Charles O. Finley & Co., 676 F.2d 1291, 1313 (9th Cir. 1982); see also Moore v. Jas. H. Matthews & Co., 682 F.2d at 839. In our pending case, it was reasonable and prudent for Sierra Club's counsel to consult with scientific experts in light of the highly technical subject matter — radionuclide emissions — involved herein. Thus, the minimal amount of time spent consulting with experts is clearly compensable. The EPA further contends that counsel for Sierra Club should not be compensated for the 6.6 hours spent on seeking information via the disclosure provisions of the Freedom of Information Act ("FOIA"). The court recognizes that the attorney's fees provision herein does not, unlike the earlier discussed Section 7607(f), contain language limiting our ability to award attorney's fees exclusively in the context of judicial proceedings. See New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 62 (1980); but cf. Sierra Club v. Gorsuch, 672 F.2d at 42. Further, the Sierra Club's use of the FOIA in this action as a discovery device to obtain information admittedly obtainable through normal discovery channels was not excessive and, quite likely, was more efficient than the traditional channels. However, the court is also aware that "[t]he primary purpose of the FOIA . . . [is] not to benefit private litigants or to serve as a substitute for civil discovery." Baldridge v. Shapiro, 455 U.S. 345, 360 n.14 (1982); Brown v. FBI, 658 F.2d 71, 75 (2d Cir. 1981). To award attorney's fees for discovery conducted under the FOIA when the material sought was otherwise obtainable via civil discovery would tend to encourage litigants to utilize the FOIA as an alternative, or even duplicative, discovery device — in contravention of the above-mentioned limitation on the use of the FOIA. Moreover, while the problem is not present in our pending case, conducting dual discovery under both the FOIA and traditional civil discovery potentially might force the government to scrutinize the dissemination of information in two separate proceedings. For these reasons, the court concludes that Sierra Club's counsel should not be compensated for the 6.6 hours claimed which are attributable to discovery conducted pursuant to the FOIA. The EPA further contends that counsel should not be compensated for the 8.5 hours spent participating in public and press relations, and in utilizing themselves as technical experts. Certainly, mere administrative expenses are not compensable as attorney's fees. See Cle-Ware Industries v. Sokolsky, 493 F.2d 863, 874 (6th Cir. 1974). However, in our pending case — which involves newsworthy issues of public health — the limited time expended by counsel responding to inquiries regarding the specifics of the case was clearly not administrative in nature, but rather, time reasonably spent in furtherance of their clients' interests. As to the time allegedly spent by counsel in their capacity as technical experts, the EPA has made no showing that any time claimed was attributable to anything other than providing services in their capacity as attorneys. Accordingly, these contentions are also without merit. The EPA further argues that counsel should not be awarded attorney's fees for the 9.2 hours attributable to their having more than one person appear at oral argument. Certainly, duplicative efforts or unnecessary expenses should not be compensated when awarding attorney's fees. Farris v. Cox, 508 F. Supp. 222 (N.D. Cal. 1981). However, the EPA's argument is niggling, especially in light of the battery of attorneys which represented the Agency and the intervenors at all major appearances before the court. Moreover, it was entirely reasonable for Sierra Club's counsel to assist one another during the course of such hearings. Accordingly, such contention must also be rejected. The EPA also objects to the inclusion of 18.3 hours which it feels are insufficiently identified as pertaining to this action. However, counsel for Sierra Club has, in their reply papers, supplied the court with a detailed explanation, clearly indicating that this time was spent in connection with the pending action. Therefore, any earlier deficiency has been remedied. Finally, the EPA argues that the 104.6 hours spent by Sierra Club's counsel in preparing this motion for entry of final judgment and for attorney's fees was excessive, and hence, not entirely compensable. It is well-settled that time reasonably devoted to obtaining attorneys' fees in the context of litigation is itself subject to an award of fees. EDF v. EPA, 672 F.2d at 62; Chrapliwy v. Uniroyal, Inc., 509 F. Supp. 442 (N.D. Ind. 1981). In our pending case, the time spent by counsel preparing the fee application was not excessive. The hours claimed are well within the amount of hours for which fees were awarded in the two above-cited cases. (EDF, supra, 114.8 hours and Chrapliwy, supra, 581 hours). Moreover, it should be noted that seventy (70) percent of the hours spent were attributable to law clerk Melnick, and accordingly, billed at a rate well below that of a practicing attorney. For these reasons, counsel for Sierra Club is entitled to an award of attorney's fees for all hours spent in preparing this pending motion. Based on the foregoing analysis, counsel for Sierra Club is entitled to compensation for all hours claimed for work performed by its law clerks in connection with this action and for all but the 1.2 hours claimed for attorney Beers and all but 5.4 hours claimed for attorney Dickson in connection with this action. Counsel for Sierra Club seeks compensation at the following rates:
Determination of the hourly rate in arriving at the lodestar should be based upon the hourly amount to which attorneys of comparable skill in the relevant area of law and in the relevant geographical region would be typically entitled. See City of Detroit v. Grinnell Corp., 495 F.2d 448, 471 (2d Cir. 1974); In re Capital Underwriters Inc. Securities Litigation, 519 F. Supp. 92 (N.D. Cal. 1981). Recently, the D.C. Circuit indicated that the allocation of the burden in setting a reasonable rate of compensation in awarding attorneys' fees is as follows: Once the fee applicant has provided support for the requested rate, the burden falls on the Government to go forward with evidence that the rate is erroneous. And when the Government attempts to rebut the case for a requested rate, it must do so by equally specific countervailing evidence . . . . [I]n the normal case the Government must either accede to the applicant's requested rate or provide specific contrary evidence tending to show that a lower rate would be appropriate. National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1326 (D.C. Cir. 1982). In our pending case, counsel for Sierra Club has presented substantial evidentiary material supporting the rates requested by them. Attorney Beers has had fourteen (14) years of experience — much of that time concentrating on environmental and public health litigation. Moreover, it is undisputed that he should be compensated at a rate equivalent to that of an experienced litigation partner. Attorney Dickson has had six years of experience — again predominantly in the environmental area. She should be compensated at a rate equivalent to that of a senior associate. Taking into account inflation, the rates of compensation which they seek are well within the range of prevailing market rates for attorneys of similar experience and skill in the major urban areas of California, and, in particular, in the San Francisco Bay Area. See Manhart v. City of Los Angeles, 652 F.2d 904 (9th Cir. 1981) ($100/hour for partners and $80/hour for senior associates); Richardson v. Restaurant Marketing Associates, Inc., 527 F. Supp. 690 (N.D. Cal. 1981) ($120/hour for experienced partner in 1980 and $110/hour for attorney with five years of experience in 1981); In re Capital Underwriters Inc. Securities Litigation, 519 F. Supp. 92 (N.D. Cal. 1981) (fees of up to $130/hour awarded to experienced partner for work performed in 1980); see also decls. of Lundquist and Rossman. In response to this strong showing, the EPA has failed to present any evidentiary material challenging the competency of opposing counsel or the reasonableness of the rates requested. Instead, the Agency suggests lower rates of compensation — based primarily on its characterization of the case as being "one of administrative law, primarily litigating the meaning of the word 'shall.'" (Opposition at 15). This characterization not only belies the technical nature of the entire proceeding, but also fails to satisfy the EPA's burden of making an evidentiary showing that the rates requested by counsel are unreasonable. Thus, based on the strong showing made by counsel for Sierra Club, the court finds and concludes that they should be compensated at the above-mentioned requested rates. Accordingly, the court determines the lodestar sum to which counsel is entitled to be as follows:
Having determined the lodestar, the court turns now to an evaluation of whether or not that figure should be subject to an adjustment — based on several of the above-mentioned Kerr guidelines. Most commonly, courts have considered such factors as the quality of representation, the contingent nature of success and the undesirability of the case. Donnell v. United States, 682 F.2d 240, 253 (D.C. Cir. 1982); Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980) (en banc); Richardson v. Restaurant Marketing Associates, Inc., 527 F. Supp. at 699; Keith v. Volpe, 501 F. Supp. at 411. Based on their evaluation of these factors, Sierra Club's counsel seeks an upward adjustment to the lodestar. Specifically, they request a "multiplier" of 2.5. When counsel has provided exceptional representation this fact is often reflected by an upward adjustment to the lodestar. Lindy Bros. Builders v. American R & S Sanitary Corp., 382 F. Supp. 999, 1021-22 (E.D. Pa. 1974). On the other hand, the court is aware of the recent admonition by the D.C. Circuit in Donnell, supra, that "an adjustment for the quality of representation should [only] be awarded in exceptional cases" and that "if especially talented counsel were necessary to litigate the case, this fact will be reflected in the hourly rate used in setting the lodestar fee." 682 F.2d at 254. Notwithstanding this caveat, this court, based on our review of the record, can only determine that the representation provided by counsel for Sierra Club militates in favor of an upward adjustment to the lodestar. This record shows that counsel for Sierra Club, as noted, a two-person law firm, efficiently and expeditiously obtained a favorable judgment in the face of concerted opposition from both the EPA and a substantial consortium of law firms representing the industry intervenors. The pleadings and memoranda filed by Sierra Club's counsel are all of uniformly high quality and are testimony to their expertise in this area of environmental and public health litigation. Moreover, the relatively low number of hours worked by counsel, when considered vis a vis their work product, is all the more admirable — especially in light of the often voluminous briefing to which they had to respond. See Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102, 118 (3d Cir. 1976) ("Lindy II"); In re Gypsum Cases, 386 F. Supp. 959, 967 (N.D. Cal. 1974). In addition, it should be noted that in evaluating the quality of representation, the court should consider the non-monetary benefits obtained as a result of the law suit. Lindy II, 540 F.2d at 118. Certainly, the public will receive health benefit from the regulation of hazardous air pollutants. Perhaps more importantly, the public will also benefit from the judicial pronouncement obtained herein that the courts will not countenance the failure of federal officials to comply with an express Congressional mandate.5 For these reasons, the exceptional quality of representation provided by counsel for Sierra Club virtually mandates an upward adjustment to the lodestar. b. Contingent Nature of Success This factor reflects the financial risk borne by attorneys who undertake litigation without guarantee of remuneration. Lindy II, 540 F.2d at 117. In assessing the possibility that counsel will not be compensated for their efforts, factors to be considered would appear to include: (1) whether or not the attorney's fee provision in question provides for fees for a non-prevailing party; see Sierra v. Gorsuch, 672 F.2d 33 (D.C. Cir. 1982) and (2) the experience, talent and financial backing of counsel's opponents. See Poster Exchange v. National Screen Service Corp., 431 F.2d 334, 341 (5th Cir. 1970). That undertaking contingency litigation is a far greater risk for a two-person law firm than for a larer firm should also be recognized — especially when considering the cash flow problems caused by any prolonged delay in the receipt of payment. Richardson v. Restaurant Marketing Associates, Inc., 527 F. Supp. at 702. In our pending case, counsel for Sierra Club indicates that the retainer agreements with their clients provides that they (counsel) accepted the case with the understanding that they would receive payment only via the attorney's fee provision under the Act and, then, only in the event that the Sierra Club prevailed. Counsel further indicate that they have not received compensationfor any of the time which they have devoted to this litigation. While the EPA correctly points out that two recent Court of Appeals decisions have provided that "non-prevailing" litigants may still receive awards of attorney's fees under the Act in certain circumstances, see NRDC v. U.S.E.P.A., 670 F.2d at 848; Sierra Club v. Gorsuch, 672 F.2d at 33, such decisions were issued after counsel had entered into retainer agreement with the Sierra Club and therefore, at the time of the agreements, counsel believed that they might be compensated only if they prevailed. Thus, even assuming that the Sierra Club would ultimately prevail and receive a final order requiring that the EPA fulfill its mandatory duty under the Act, both the formidable nature of their opposition and the possibility that such opponents might succeed in delaying the resolution of this matter for several years all compel a conclusion that counsel should be additionally compensated for the risks inherent in their pursuit of this action. c. The "Undesirability" of the Case The "undesirability" of a case refers to the situation where a case may not be of the sort which lawyers routinely desire to undertake. Johnson v. Georgia Highway, 488 F.2d 714 (5th Cir. 1974). A case may be undesirable because of the social stigma attached to representing certain kinds of litigants in certain communities. Id. at 719. It may also be undesirable due to the existence of a contingent fee arrangement or due to the fact that the client has no pecuniary interest in the outcome of the case. Keith v. Volpe, 501 F. Supp. at 411; La Raza Unida v. Volpe, 57 F.R.D. 94 [2 ELR 20691] (N.D. Cal. 1972). In our pending case, counsel for Sierra Club was not only faced with a formidable consortium of the nation's most prestigious private and public law offices; additionally, their compensation was contingent on their receiving an award of attorney's fees pursuant to Section 7604(d). Further, the Sierra Club, as environmental litigants seeking in effect "specific performance" of a Congressional mandate, had no pecuniary interest in the outcome of the suit. Accordingly, the case must be deemed to be undesirable for purposes of determining whether the lodestar should be adjusted upward. d. Conclusion as to the Multiplier For the above-mentioned reasons, this court finds and concludes that counsel for Sierra Club is entitled to an upward adjustment of the lodestar. While counsel's request for a multiplier of 2.5 is not unreasonable when compared with multipliers utilized in previous cases, Keith v. Volpe, 501 F. Supp. at 414 (multiplier of 3.5); Arenson v. Board of Trade of City of Chicago, 372 F. Supp. 1349, 1358 (N.D. Ill. 1974) (multiplier of 4); In re Equity Funding Corp. of American Securities, 438 F. Supp. 1303, 1337-38 (C.D. Cal. 1977) (multiplier of 3 for attorneys who supervised virtually every aspect of the case), the court here concludes that the lodestar should be increased by a multiplier of 2. See Lindy II, 540 F.2d at 115-16 (multiplier of 2); Richardson v. Restaurant Marketing Associates, Inc., 527 F. Supp. at 702 (multiplier of 2). Based on the foregoing analysis, the court concludes that final judgment should be entered and that counsel for Sierra Club is entitled to an award of attorney's fees. Doubling the lodestar figure of $50,897.50, the court finds and concludes that attorney's fees should be awarded to Sierra Club in the amount of $101,795.00. 1. Section 7412(b)(1)(A) and (B) of the Act provide in pertinent part as follows: "The Administrator shall . . . publish (and shall from time to time thereafter revise) a list which includes each hazardous air pollutant for which he intends to establish an emission standard under this section. Within 180 days after the inclusion of any air pollutant in such list the Administrator shall publish proposed regulations establishing emission standards for such pollutant together with a notice of public hearing within thirty days. Not later than 180 days after such publication, the Administrator shall prescribe an emission standard for such pollutant, unless he finds, on the basis of information presented at such hearings, that such pollutant is clearly not a hazardous air pollutant." 2. The Ninth Circuit has stated that in determining whether a party can recover attorney's fees under Section 7607(f) of the Act, an attorney's fee provision virtually identical to Section 7604(d), the test is also that adopted by the D.C. Circuit, i.e., "whether in light of what was known . . . when the action was instituted, the action was of the type Congress sought to encourage when it authorized awards of attorneys' fees." Northern Plains Resource Council v. U.S.E.P.A., 670 F.2d 847, 848 [12 ELR 20427] (9th Cir. 1982). 3. It should be noted that Sierra Club's counsel consisted of a single two-person law firm. In contrast, the EPA and the intervenors had the combined assistance of at least a total of twenty six (26) attorneys from twelve law offices — governmental and private. 4. The EPA also argues that the hours spent by Sierra Club's counsel opposing the intervenors should not be charged against the EPA, because, if the Agency is made liable for such fees, it will not be able to obtain contribution from the intervenors. In support of its argument, the EPA relies on Northern Plains Resource Council v. U.S.E.P.A., 670 F.2d 847 [12 ELR 20427] (9th Cir. 1982) where the Ninth Circuit stated, in dicta, that "there is no indication that Congress sought to require a prevailing intervening party to indemnify the party challenging an EPA decision." Id. at 849 n.4. Such language is inapposite to our pending case: first, because it addresses the situation — not presented here — where an intervenor is a prevailing party; and second, because it speaks in terms of an intervenor indemnifying a party seeking attorney's fees from the EPA, and not in terms of the EPA seeking contribution from a non-prevailing intervenor once the Agency has been found liable for fees incurred against such intervenors. Since this latter procedure — contribution — would appear to be appropriate, the court will not allow the presence of the intervenors to diminish the time for which Sierra Club's counsel should be awarded compensation from the EPA. 5. In this regard, the Sierrra Club has submitted a supplemental memorandum, to which they attach an Opinion and Order of the United States District Court, Southern District of New York in a case entitled New York v. Gorsuch, 81 Civ. 6678 [13 ELR 20248] (WCC). On January 12, 1983, District Judge Conner, relying in part on the reasoning of Judge Sweigert's Order of September 30, 1982, ordered that the EPA comply, within 180 days, with its mandatory duty to issue proposed regulations establishing emissions standards for inorganic arsenic — another listed hazardous air pollutant. 17 ELR 21219 | Environmental Law Reporter | copyright © 1987 | All rights reserved |