Citizens Association of Georgetown v. Washington, C.A.

No. 1944-73 (D.D.C. September 30, 1974)

Plaintiffs, although unsuccessful on the merits of their Clean Air Act suit to block construction of two buildings, are awarded court costs and counsel fees against the District of Columbia government. Plaintiffs were unable to prove that the planned construction would prevent the city from meeting national air quality standards by May 31, 1977, but they did succeed in demonstrating the D.C. Government's inaction and procrastination in implementing the Clean Air Act. The Act authorizes awards of court costs and counsel fees to "any party, whenever the court determines such award is appropriate." This provision is not subject to the traditional American rule limiting awards of counsel fees to successful litigants in certain special circumstances. The suit was brought against the city government and also two private parties whom the court found to be in violation of no law. Plaintiffs acted reasonably, therefore, in requesting reimbursement for only one third of their attorneys' time. In deciding that an award is appropriate, the court observes that the case was one of first impression in the D.C. Circuit and involved issues raised by a relatively recent statute, so that extensive preparation was required. For the order denying the preliminary injunction, see 4 ELR 20292.

Counsel for Plaintiff
Bruce J. Terris
1908 Sunderland Place. N.W.
Washington, D.C. 20036

Counsel for Defendant
David Eisenberg
Assistant Corporation Counsel
14th and E Sta., N.W.
Washington, D.C. 20004

[4 ELR 20860]

Richey, J.

I. INTRODUCTION

This matter is now before the Court on Plaintiffs' Motion to Amend Judgment and To Award Partial Attorneys' Fees and Other Costs. The issue presented is whether Plaintiffs, who were unsuccessful in a suit brought under the Clean Air Act, 42 U.S.C. § 1857 et seq., should be awarded costs and attorney's fees. The Court concludes that this is an exceptional case in which Plaintiffs should be awarded costs and attorneys' fees under the Act, and that the partial request herein is fair and reasonable.

II. PRIOR LITIGATION IN THIS CASE

The history of this suit is chronicled in this Court's Opinion denying Plaintiffs' Motion for a Preliminary Injunction at 370 F. Supp. 1101 (1974), and in an Opinion accompanying final judgment filed in Civil Action 1944-73, August 8, 1974. Two citizens groups, Citizens Association of Georgetown and The Committee of 100 on the Federal City, brought suit against District of Columbia officials and two private corporations to prevent the construction of two buildings in the Georgetown waterfront area of the Nation's Capital. The Court specifically held that its jurisdiction was wellfounded under the citizen suit provision of the Clean Air Act, 42 U.S.C. § 1857h-2. Citizens Ass'n of Georgetown v. Washington, Civil Action No. 1944-73 (D.D.C. Aug. 8, 1974), at 3. The Court and parties narrowed the issue for trial to the question of whether the planned construction would cause the District of Columbia to be unable to meet the national ambient air quality standards by May 31, 1977. After trial the Court concluded that there had been no violation of an "emission standard or limitation" as defined by the Act, and that Plaintiffs had not proved as a matter of fact that the 1977 air quality standards would be violated. Citizens Ass'n of Georgetown v. Washington, Civil Action No. 1944-73 (D.D.C., Aug. 8, 1974), at 5.

III. DISCUSSION

A. Congress Has Empowered the District Court to Award Costs and Attorneys' Fees to Either the Successful or Unsuccessful Party Under the Citizen Suit Provision of the Clean Air Act.

42 U.S.C. § 1847h-2(d) provides that:

[t]he court, in issuing any final order in any action brought pursuant to subsection (a) of [42 U.S.C. 1857h-2], may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate . . . .

There is nothing in the language of that section which suggests that Congress meant to impose upon the District Court the traditional American rules that costs are awarded only to the successful litigant and that attorney's fees are awarded to the successful party only in certain special circumstances. See Hall v. Cole, 412 U.S. 1 (1973). The plain meaning of 42 U.S.C. § 1857h-2(d) is that success or failure on the merits has nothing to do with the trial court's power to award costs and attorneys' fees in citizen suits under the Clean Air Act.

The legislative history of the citizen suit provision supports this view. The Senate Committee added subsection (d) to the bill for the purpose of encouraging citizen suits. The Committee report states that:

[t]he court may award costs of litigation to either party whenever the court determines such award is in the public interest without regard to the outcome of the litigation.

S. Rep. No. 1196, 91st Cong., 2d. Sess. 65 (1970).

B. The District Court may Properly Award of Reasonable Request for Coast and Attorneys' Fees to an Unsuccessful Plaintiff if the Suit is Legitimate and is a Benefit to the Public Interest as Defined by the Clean Air Act.

In determining whether the award of costs and attorneys' fees is "appropriate," we look first to the congressional purpose in enacting 42 U.S.C. § 1857-2(d); then, in pursuit of that goal, we are also guided by the traditional American rules with respect to the award of costs and attorneys' fees. These sources serve as guidelines to the Court in absence of express congressional direction in the statute.

The Court concludes that an award is appropriate if the suit has benefitted the public interest as declared in the Clean Air Act. The congressional purpose in providing for the award of costs and [4 ELR 20861] attorneys' fees in "appropriate" cases is to encourage citizen suits in order to accelerate enforcement of the Act. S. Rep. No. 1196, 91st Cong., 2d. Sess. 3 (1970). As quoted in Part III-A herein, the Senate report also indicates that the District Court may make the award when it determines that the public interest would be served.

In seeking equity, the Court further concludes that only a reasonable request by an unsuccessful plaintiff may be entertained. The traditional rules are that the prevailing party is awarded costs and that each party bears its own attorneys' fees. Any variation from these principles is an exercise of the general equity jurisdiction of the federal courts. See Hall v. Cole, 412 U.S. 1 (1973). One such variation is that the advancement of an important legislative policy may justify the award of costs and fees even where the plaintiff does not obtain the ultimate relief he seeks. Wilderness Society v. Morton, 495 F.2d 1026, 1034 (1974). In such cases, a standard of reasonableness must be imposed by the court. Against this standard the court should evaluate not only the amount of the request, but also the legitimacy of the claims presented by the suit.

C. In the Suit at Bar, Plaintiffs Make a Reasonable Request for Costs and Attorneys' Fees, and Their Suit was Both Legitimate and Beneficial to the Public Interest.

Plaintiffs make a modest request for $12,898.98 against only the District of Columbia officials named as defendants. In their motion for costs and fees, Plaintiffs detail a bill of costs amounting to $38,696.96 for this litigation, excluding certain expert fees already awarded to Plaintiffs in the final judgment. They make no claim for costs against the two private Defendants whom the Court found not to be in violation of any law. Accordingly, Plaintiffs have asserted a pro rata claim against the District of Columbia for only one-third of the total costs and fees. The District of Columbia defendants do not content the reasonableness of the amount.

The Court has carefully considered the relevant factors which the United States Court of Appeals for the District of Columbia suggests to the District Court with respect to its determination of a reasonable attorneys' fee. See Evans v. Sheraton Park Hotel, Civil Action No. 73-1342 (D.C. Cir., Sept. 12, 1974). We first note that this case involved legal issues raised by a relatively new statute, and that Plaintiffs' claims presented a case of first impression in this Circuit. Secondly, the issues framed for trial placed a heavy burden of proof on Plaintiffs; therefore, extensive preparation was required. In view of these factors, both the number of hours and the distribution of work among the various attorneys, as detailed in the Plaintiffs' Bill of Costs, are reasonable. Moreover, the calculation of total attorneys' fees is based upon an hourly rate far below the commercial rate in this city and apparently below that rate used by the District Court in an earlier Clean Air Act suit, Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D.D.C.), aff'd per curiam, 4 ERC 1815 (D.C. Cir. 1972), aff'd by an equally divided Court, 412 U.S. 541 (1973).

There is no question that this suit was legitimate. Plaintiffs asserted non-frivolous claims against two private corporations whose buildings will affect the total Georgetown environment. This fact is clearly supported by the record in this case, even though the Court found that Plaintiffs had failed to meet their burden in proving the narrow issue of whether the Defendants would cause violations of the national ambient air quality standards in 1977.

More importantly, Plaintiffs brought their suit in the face of a clean air regulatory vacuum in the District. See Citizens Ass'n of Georgetown v. Washington, 370 F. Supp. 1101 (1974). This factor not only made Plaintiffs' burden of proof at trial weighty, but also heightened, in this Court's opinion, this suit's ultimate benefit to the public interest in the District.

In order to understand the public benefit conferred by this suit, it is necessary to understand the basis design of the Clean Air Act.The structure of the Act evidences the congressional intent to rely on state and local governments for implementation of control programs necessary to abate air pollution. 42 U.S.C. § 1857c-5. Where this reliance is frustrated by inaction, as is the case with the District government, the locality is in imminent danger of one, and perhaps both, of two unpleasant eventualities: 1) failure to attain air quality standards requisite for good health, or 2) assumption by the federal government of the task of effecting local air pollution control programs. See 42 U.S.C. §§ 1857c-4(b), 1857(c)-5(c). In the latter case, the air quality control program may not be responsive to particular, local needs.

In light of this congressional reliance on local governments, the benefits to the public interest conferred by this suit are twofold. The first benefit is that this case presents to the public a record of inaction and action delayed on the part of the District of Columbia government in implementing the Clean Air Act. The second benefit is that this trial is a vivid illustration of the burdens imposed upon a private party who seeks to attain the goals mandated by the Congress in the Act, as evidenced by EPA's national ambient air quality standards, in the face of incomplete implementation of the Act by the District government.

Both of these benefits relate to the overriding purpose of the Clean Air Act: "to protect and enhance the quality of the Nation's air resources . . . ." 42 U.S.C. § 1857(b)(1). The public should know that air pollution continues in the District because the District government has been and continues to be slow in acting to fill the regulatory vacuum. Hopefully, the suit at bar will educate the public and the responsible public officials on this matter. The District points its finger at the Environmental Protection Agency and says that the District is now under no legal direction from that agency to act. But the simple facts are that Congress has directed the District to meet the national air quality standards no later than May 31, 1977, and that this is a continuing obligation to act. The District of Columbia should take it upon itself to deal with the substantial problems of air pollution in this city now!

IV. CONCLUSION

The Court concludes that the District of Columbia must pay one-third of Plaintiffs' costs and attorneys' fees herein. The Citizens Association of Georgetown and The Committee of 100 on the Federal City brought forward legitimate complaints concerning air pollution in the Georgetown area. Although Plaintiffs lost, the public was served.