Natural Resources Defense Council, Inc. v. Fri

No. 849-73 (D.D.C. December 6, 1974)

The court rules that plaintiff's suit against EPA, which resulted in a consent judgment and a stipulated timetable for the promulgation of guidelines and regulations mandated by the Federal Water Pollution Control Act Amendments of 1972, presents an appropriate instance for an award of attorneys' fees under § 505(d) of the statute. Section 505 clearly permits recovery of such fees in cases challenging EPA's failure to promulgate standards required under the FWPCA, as well as in suits seeking to enforce standards already established by the agency. Plaintiff in this case has served a valuable function by forcing EPA to promulgate overdue regulations which might otherwise have been delayed even longer. In determining the amount of the award, however, the court finds that a number of hours attributed to this litigation by plaintiff's counsel were spent on matters equally relevant to other areas of NRDC's interest in policing environmental laws, and therefore discounts the hours shown by plaintiff's counsel by 45 percent and awards a fee of $3811.51.

Counsel for Plaintiff
Ronald J. Wilson
810 18th Street, N.W.
Washington, D.C. 20006

J. G. Speth
Richard Hall
Natural Resources Defense Council, Inc.
1710 N Street, N.W.
Washington, D.C. 20036

Counsel for Defendants
James A. Glasgow
Department of Justice
Washington, D.C. 20530

[5 ELR 20173]

Flannery, J.

MEMORANDUM AND ORDER

This matter is before the court on plaintiff's motion for entry of a final order dismissing the action and awarding the costs of suit, including reasonable attorney's fees. Plaintiff, relying on § 505(d) of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1365(d) (Supp. II, 1972), seeks $11,950.00 in attorney'sfees and $16.00 in costs.

This suit was instituted by the Natural Resources Defense Council on May 2, 1973 to force the Administrator of the Environmental Protection Agency (EPA) to promulgate guidelines and regulations mandated by Congress in the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251 et seq. (Supp. II, 1972). The defendants did not file an answer; rather on June 19, 1973, they consented to the entry of a judgment against them and stipulated to a timetable for the issuance of the guidelines and regulations. Defendants failed to meet the deadlines set forth in that timetable and Natural Resources Defense Council moved for an order to show cause. While the motion was pending, defendants promulgated the regulations and plaintiff withdrew its motion. On December 17, 1973 promulgation of the requisite regulations and guidelines was completed. Plaintiff then filed the present motion.

Section 505(c) of the 1972 Amendments concerning citizen suits provides in pertinent part:

(a) Authorization; jurisdiction.

. . . any citizen may commence a civil action on his own behalf —

(1) against any person . . . alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or

(2) against the Administrator where there is alleged a failure to the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.

* * *

(d) Litigation costs.

The court, in issuing any final order in any action brought pursuant to 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 . . . .

33 U.S.C. § 1365(a), (d) (Supp. II, 1972).

The plain language of the statute then permits recovery in the present case since the plaintiff has brought suit to force the Administrator to perform a non-discretionary duty. Defendants argue, nonetheless, that recovery of litigation costs was intended only in suits to enforce standards already established by EPA. Since the suit brought by plaintiff was one to promulgate, rather than enforce, regulations defendants reason that no award of costs is proper. Such reasoning ignores both the plain language of the statute and its legislative history.

In construing statutes, courts must first look to the language of the legislation; if its language "admits of no more than one meaning the duty of interpretation does not arise . . . ." United Shoe Workers of America, AFL-CIO v. Bedell, Civil No. 72-1554 (D.C. Cir., Oct. 23, 1974) (citations omitted). The Supreme Court addressed the question of interpreting statutory language in Ex Parte Collett, 337 U.S. 55, 61 (1949):

"The short answer is that there is no need to refer to the legislative history where the statutory language is clear. 'The plain words and meaning of a statute cannot be overcome by a legislative history which, through strained processes of deduction from events of wholly ambiguous significance, may furnish dubious bases for inference in every direction.' Gemsco v. Walling, 1945, 324 U.S. 244, 260."

A court should only ignore the plain language of the statute if to give it a literal interpretation would lead to absurd results. The Court of Appeals for this Circuit has recently commented on such a situation:

"A court may qualify the plain meaning of a statute when its consequences — plainly absurd, inequitable, or in conflict with legislative history — permit the court to discern a clear legislative intention to the contrary." Center for National Policy Review on Race & Urban Issues v. Weinberger, Civil Nos. 73-1090, 73-1093 (D.C. Cir., May 21, 1974), slip op. at 6.

It does not appear that futile or absurd consequences will flow from a literal interpretation of the statute at issue. To the contrary, the legislative history of the section shows this to be the type of citizen suit which Congress hoped would assist in vindicating the policies it enacted, and thus one in which it intended to provide for the payment of expenses to the citizen litigant. See generally, Congressional Research Service of the Library of Congress, A Legislative History of the Water Pollution Control Act Amendments of 1972, 93rd Cong., 1st Sess. (Comm. on Public Works Print 1973). The Senate Report accompanying the bill is instructive:

"As pointed out, the Committee bill would provide in the citizen suit provision that actions will lie against the Administrator for failure to exercise his duties under the Act, including his enforcement duties." S. Rep. No. 92-414, 92nd Cong., 1st Sess. 81 (1971).

Thus, suits to force the Administrator to promulgate regulations mandated by Congress are clearly encompassed within the language [5 ELR 20174] of § 505. Since the present suit is one brought pursuant to § 505, then § 505(d) allows the court to award costs of litigation when it deems appropriate. 33 U.S.C. § 1365(d) (Supp. II. 1972).¹

Considering the motion now before the court, the court finds that plaintiff has served a valuable function by forcing the EPA to promulgate regulations which might otherwise have been delayed even longer, and, therefore, an award is appropriate. See S. Rep. No. 92-414, supra, at 81. In determining the amount of the award the court is guided by the decision of the Court of appeals for this Circuit in Wilderness Society v. Morton, Civil Nos. 72-1796, 72-1797, 72-1798 (April 4, 1974), cert. granted, 43 U.S.L.W. 3208 (U.S. Oct. 15, 1974). Judge Wright, writing for the court stated that:

"[t]he fee should represent the reasonable value of the services rendered, taking into account all the surrounding circumstances, including but not limited to, the time and labor required on the case, the benefit to the public, and the skill demanded by the novelty or complexity of the issues." Slip op. at 19.

It must be kept in mind though that no inviolable formula exists for the combination of these factors. In the final analysis much depends on what the court, based on reason and experience, believes is fair and equitable under the circumstances of the particular case. In determining an appropriate fee the court is cognizant of the importance of the benefit conferred on the public. This is not a case, however, in which the government obdurately refused to take any action, but one in which the government delayed in promulgating regulations. Although plaintiff did vindicate Congressional intent, the court cannot determine with any assurance the actual benefit conferred. Moreover, while the Federal Water Pollution Control Act is a complex piece of legislation, the court is of the opinion that the issues themselves were neither so novel nor so complex that excessive skill was demanded. Indeed, without denigrating the talent of plaintiff's attorneys, the court would be hard-pressed to judge the skill displayed by counsel since the course of the litigation was brief and uncomplicated and no significant pleadings other than the complaint and plaintiff's motion to show cause were filed. The court will, therefore award a fee based on an hourly rate of $40.00 for Mr. Ronald J. Wilson, a private practitioner with considerable experience and an hourly rate of $30.00 for Mr. J. G. Speth and Mr. Richard Hall, National Resources Defense Council staff counsel.²

Although these rates are less than those requested by plaintiff, the court is mindful that the first purpose of an award of fees is to make plaintiff whole. Wilderness Society v. Morton, supra, slip op. at 20. These rates are adequate to remunerate counsel and are above those normally allowed in other areas such as the representation of indigent criminal defendants.³ It should be kept in mind that members of the legal profession have an obligation to represent clients who are unable to pay for counsel and also to bring suits in the public interest. Gilpin v. Kansas State High School Activities Ass'n, Inc., 377 F. Supp. 1233, 1253 (D. Kan. 1974); Wyatt v. Stickney, 344 F. Supp. 373, 410 (M.D. Ala. 1972). The rates established above will allow lawyers to carry out their professional responsibility without either personal profiteering or undue financial sacrifices. See Wyatt v. Stickney, supra, at 410.

Plaintiff claims that a total of 191 hours were devoted to this litigation by its counsel; 120 hours by Mr. Wilson, and 56 and 15 hours by Mr. Speth and Mr. Hall respectively. The court is of the view that any party requesting an award of fees should be prepared to document meticulously the hours expended on the litigation. Such records are maintained as a matter of course by counsel in private practice in order to properly bill their clients, and are kept on an hourly or even quarter-hourly basis. Here, where fees are being assessed against an unwilling party, it is even more important that the lawyers' activities be closely recorded. While the hours of Mr. Speth and Mr. Hall are spelled out in some detail, the hours of Mr. Wilson are not. See Answers of Plaintiff to Defendants' Interrogatories 25, 28; Wilson Affidavit. This presents difficulty in arriving at the number of hours appropriately reimbursable.Moreover, one of plaintiff's primary purposes is policing the enforcement of environmental laws, and a number of the hours shown were spent on matters which were equally relevant to other areas of NRDC's interest, or were sufficiently prior to the filing of this complaint to raise questions as to whether they are allowable. The court, therefore, deems it fair and reasonable in this case to discount the hours of all attorneys by 45 percent and award a fee of $3811.50. Plaintiff is also entitled to costs in the amount of $16.00. In accordance with the foregoing, it is by the court this 6th day of December, 1974,

ORDERED that plaintiff shall have to and including December 16, 1974 in which to submit an Order for the court's approval awarding fees in accordance with this Memorandum and with the directions of the Court of Appeals in Wilderness Society v. Morton, supra.

1. It has been argued by defendants that the legislative history of the citizen suit provisions of the Clean Air Act of 1970, 42 U.S.C. § 1857h-2 (1970), upon which section 505 was modeled demonstrates an intention to allow recovery only in suits to enforce standards. This District Court, however, has allowed the recovery of fees under § 1857h-2 in a case involving the failure of the Administrator to perform a non-discretionary act or duty. See Order, Sierra Club v. Fri, Civil No. 1031-72 (D.D.C. Oct. 31, 1973). The opinion on the merits is reported as Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D.D.C. 1972), aff'd by an equally divided Court sub non. Fri v. Sierra Club, 412 U.S. 541 (1973).

For a general discussion of the citizen suit provision of the Federal Water Pollution Control Act see Natural Resources Defense Council, Inc. v. Train, Civil No. 74-1433 (D.C. Cir., Dec. 5, 1974). Although the court did not discuss the question of attorney's fees, it clearly indicated that Congress intended the citizen suit provisions to encompass suits to enforce specific requirements of the Act. See slip op. at 13.

2. Counsel for the government has argued that NRDC should not be reimbursed for the expenses of staff counsel since "the bringing of environmental suits is the business of NRDC." However, if Congress desired to use the award of fees to encourage meritorous litigation and discourage frivolous suit, the identity of the party, and the source of its counsel, would be little moment. NRDC v. EPA, 484 F.2d 1331, 1338 n.7 (1st Cir. 1973).

3. See 18 U.S.C.A. § 3006A (1974).