6 ELR 20341 | Environmental Law Reporter | copyright © 1976 | All rights reserved

Prod, Inc. v. Train

No. 74-999 (D.D.C. March 26, 1976)

An award of attorneys' fees is granted to plaintiff in a citizen suit which sought to require the EPA Administrator to issue proposed noise emission regulations called for by the Noise Control Act of 1972. The Act clearly provides the court with discretionary authority to grant attorneys' fees in citizen suits brought under it, and the court determines this case to be an appropriate instance for such an award. The Administrator breached a non-discretionary duty to publish the regulations in question before the statutorily-imposed deadline. This litigation, while ultimately mooted by EPA's subsequent publication of proposed rules, admittedly resulted in those proposals being issued at least a month earlier than they otherwise would have been. The lawsuit thus necessarily conferred a public benefit of precisely the kind envisioned by Congress when it provided for citizen suits as an enforcement mechanism in the Act. In setting the amount of the award, the court takes into account the time and labor expended on the case, the benefit to the public and the novelty and complexity of the legal issues presented in order to determine the reasonable value of the services rendered. Because the litigation was brief and uncomplicated and the regulations would have been published at a later date even if plaintiff had not sued, the court grants an award at half the requested hourly rates for the plaintiff's three participating attorneys for a total of $3,067.

Counsel for Plaintiff
John M. Ferren
Samuel R. Berger
Hogan & Hartson
815 Connecticut Ave., NW
Washington DC 20006
(202) 331-4500

Arthur L. Fox
Suite 700
2000 P Street, NW
Washington DC 20036
(202) 785-3704

Counsel for Defendant
Bruce J. Chasan
Land and Natural Resources Division
Department of Justice
Washington DC 20530
(202) 739-2793

[6 ELR 20341]

Jones, J.:


This is an action brought pursuant to the citizen suit provision of the Noise Control Act of 1972, 42 U.S.C. § 4911 (supp. IV 1974), seeking to require the Administrator of the Environmental Protection Agency (EPA) to publish proposed noise emission regulations as required by the Act. The action was filed July 2, 1974, and on October 15, 1974 the Administrator published the proposed regulations, thereby effectively mooting the substantive portion of plaintiff's complaint. Presently before the court are two motions for attorneys' fees, one by the plaintiff and one by the defendant. Each will be treated in order, but a factual summary is appropriate at the outset.

The Noise Control Act of 1972 directs the Administrator to undertake a number of steps prior to issuance of final regulations [6 ELR 20342] concerning noise emission. Each of the steps must be completed by a date certain. Thus, the Administrator is required to develop and publish criteria with respect to noise by June 27, 1973; by October 27, 1973 he is required to publish information on levels of environmental noise which must be maintained in order to protect the public health and welfare; he must publish reports identifying major sources of noise and giving information on control of noise from these sources, the first report being due no later than April 27, 1974; finally, the Administrator must publish proposed regulations concerning the major sources of noise identified in the published reports no later than April 27, 1974. See 42 U.S.C. §§ 4904, 4905. Each directive is couched in mandatory language, and defendant does not argue that the Act in and of itself grants discretion to the Administrator to postpone or disregard any of thepublication deadlines.

Plaintiff is a non-profit membership corporation supported by the dues of professional, interstate truck and bus drivers and by members of the public. After the Administrator had failed to meet the April 27, 1974 deadline, for both the identification report and the proposed regulations, plaintiff served notice on the Administrator that it would institute legal action against him following the expiration of the 60-day notice period as required by the Act. See 42 U.S.C. § 4911(b). On June 21, 1974, the Administrator published the identification report, entitled "Identification of Products as Major Sources of Noise," specifying noise from heavy duty trucks as having the greatest sound energy impact upon the public of all major sources of noise.

By July 2, 1974, however, the Administrator still had not published the proposed regulations which the Act required to be published by April 27, 1974. Having waited the specified 60 days, plaintiff brought this action, seeking a direction from the court to the Administrator to publish the proposed regulations within 20 days. Shortly thereafter, on July 29, 1974, plaintiff filed its motion for summary judgment. The time for defendant's response was extended until September 13, 1974, when he filed a motion to dismiss. On October 15, 1974, defendant Administrator published the proposed regulations in the Federal Register, essentially mooting the injunctive relief requested by plaintiff.


In defendant's "Final Brief" on attorneys' fees, he apparently has withdrawn his earlier contention that the Act does not provide for attorneys' fees in cases challenging actions by the Administrator. Section 4911(d) states:

The court, in issuing any final order in any action brought pursuant to subsection (a) of this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such an award is appropriate.

Section 4911(a) grants standing to "any person" to commence a civil action against the Administrator "where there is alleged a failure of such Administrator to perform any act or duty under this chapter which is not discretionary with such Administrator." Plaintiff's suit is clearly within this class of cases, and the language of § 4911(d) admits of no other interpretation than that attorneys' fees can be awarded in the court's discretion for suits such as this one. See Natural Resources Defense Council v. Fri, Civil Action No. 849-73 (D.D.C. Dec. 6, 1974) (interpreting similar language in the Federal Water Pollution Control Act of 1972, 33 U.S.C. § 1365(d)).

The power of the court to award plaintiff's attorneys' fees being clear, the only question is whether that power should be exercised in the instant case. Defendant argues that this is not a proper case for attorneys' fees, contending that the Administrator had on February 27, 1974 published advance notice of proposed rulemaking which indicated that he was intending to publish by the April 27 deadline proposed noise emission regulations. The subsequent delay according to defendant was due to a delay in one of the earlier steps outlined by the Act, and that he properly postponed publication of the proposed regulations because to do otherwise would result in regulations not meeting the substantive criteria of the Act. Such action was within his "limited discretion," defendant argues, a doctrine for which he finds support in recent decisions by the court of appeals of this circuit. While he admits that as a result of this litigation a draft of the proposed regulations was prepared "an estimated three to four weeks sooner than otherwise would have happened had the litigation not been filed,"1 he also points to the fact that EPA had to give less attention to other equally important projects during this period. In short, he argues that he had the authority to delay publication of the regulations, and that the litigation, if anything, harmed the public interest by interfering with the exercise of that discretion.

The doctrine of "limited discretion," advanced by defendant, is a novel and potentially dangerous doctrine. As put forth by the Administrator here, the doctrine grants him discretion to disregard non-discretionary statutory obligations whenever he determines that meeting those obligations would not fulfill the purposes of the Act. He cites two cases purportedly supporting this position, Pennsylvania v. Lynn, 501 F.2d 848 (D.C. Cir. 1974), and Natural Resources Defense Council v. Train, 510 F.2d 692 (D.C. Cir. 1975). Neither case helps defendant's argument.

In Pennsylvania v. Lynn, the Court of Appeals was presented with the question "whether the Secretary [of Housing and Urban Development] has, under the housing subsidy statutes and relevant declarations of congressional policy, discretion to withhold exercise of contract authority, given him by congress for a specific purpose, in order to determine whether that purpose would be achieved or frustrated by its continued exercise under existing circumstances." 501 F.2d at 851-52. After an exhaustive review of the statutory language, legislative history, and congressional declarations concerning the Secretary's actions, the court concluded that "the Secretary is not without authority to suspend" the subsidy programs. The basis of the court's holding was clearly the discretion granted the Secretary by the Act, not some independent basis of discretion inherent in the Executive.

Similarly, in Natural Resources Defense Council v. Train, the Court of Appeals had to determine whether the Administrator had discretion to postpone statutorily imposed deadlines for promulgation of regulations under the Federal Water Pollution Control Act. The court first noted that there were two classes of guidelines which had to be published. With regard to the first class of guidelines, the court held that failure to meet the deadline imposed for publication constituted a "failure to meet its acknowledged duty under the Act." 510 F.2d at 704. With regard to the second class of guidelines, the court held that the Congress intended that they be published by December 31, 1974, even though that deadline had not been expressly specified in the Act. Importantly, the court stated with regard to the type of duty imposed on the Administrator:

Although we believe that guidelines covering most point source categories should be readied by that date, we do not read the statutory scheme as categorically mandating that all guidelines be published by that time.

510 F.2d at 712. The court then proceeded to outline the circumstances under which the statute would permit the Administrator to postpone the deadlines, and concluded:

The courts cannot responsibly mandate flat guideline deadlines when the Administrator demonstrates that additional time is necessary to insure that the guidelines are rooted in an understanding of the relative merits of available control technologies. The delay required to give meaningful consideration to the technical intricacies of promising control mechanisms may well speed achievement of the goal of pollution abatement by obviating the need for time-consuming corrective measures at a later date.


In neither case did the court, as defendant argues, inject discretion into the statutory scheme. Rather, after exhaustively examining the statute, its legislative history, and congressional declarations concerning its effectuation, the court determined that the statute did in fact grant discretion to the responsible official to postpone deadlines or institute a moratorium on a statutory program. In the instant case, the language of the statute could not be more clearly mandatory in its imposition of deadlines for publication of regulations. The legislative history is equally clear. According to the Senate Report, "[t]he major regulatory thrust of this legislation is to require the Administrator of the Environmental Protection Agency [6 ELR 20343] to establish noise emission standards for newly manufactured products which are major sources of noise. . . ." To this end:

Within fifteen months after enactment, the Administrator is required by section 407(b) to publish reports identifying products which appear to be major sources of noise. Identification as a major source of noise is the first step in the development of noise emission standards for particular products. Of course, the Committee expects the Administrator to begin drafting possible noise emission standards for a product as soon as his initial investigations suggest that it might be identified as a major source of noise. This is necessary because noise emission standards must be promulgated for any product identified in the initial list of major sources within 18 months after enactment.

S. Rept. 92-1160 (Sept. 19, 1972).

Nothing subsequent to the Act's passage would support any contention that Congress did not intend the deadlines to be mandatory and non-discretionary. Indeed, in a letter to the Administrator on October 15, 1974, nine Senators expressed their "misgivings about the manner in which the Environmental Protection Agency is implementing the Noise Control Act of 1972." Particularly, they expressed their concern about the failure of the Administrator to meet the deadlines imposed by the Act. The Senators concluded:

The failure to comply with statutory deadlines and other requirements under the Act perhaps could be justified if accompanied by complete, timely and accurate presentations to the Congress of technical difficulties, including requests for needed amendments to the law or additional funds and staff. No such requests have been made. On the contrary, the Environmental Protection Agency has assured our Committees that adequate resources are available and that regulatory and other actions provided for in the Act would be carried out expeditiously. Unfortunately, this has not been the case.

Plaintiff's Exhibit F to Motion for Attorney's Fees, at 2.

In his long recitation of reasons why he has not met the statutory deadlines, defendant points to no declaration by any member of Congress, either during or after the passage of the Act, which suggests that Congress contemplated administrative postponement of the deadlines. The Administrator's complaints about the structure of the Act and the periods of time between deadlines are his own, not those of Congress. To make those arguments to the court is to ignore the forum where they can be properly handled. As the nine Senators stated in their letter to the Administrator, if he desires postponement of the deadlines, his proper course of action is to apply for relief from Congress. The courts are intended to interpret and apply the law, not to suspend its operation on the substituted judgment of the Executive Branch.

In light of the conclusion that the Administrator was without discretion to ignore the statutory deadlines, the question remains whether fees are appropriate. Defendant admits that the litigation effectuated the statutory process by speeding at least one stage by three to four weeks. It is only logical to assume that the final stage — publication of proposed regulations — was reached earlier as a result. This necessarily conferred a public benefit and would argue in favor of an award of fees. Defendant argues, however, that an award is inappropriate because this lawsuit required defendant to give priority to the proposed regulations which are the subject of plaintiff's challenge, thereby forcing him to postpone or decrease work on other projects. That these other projects suffered, according to the defendant, outweighs any public benefit conferred by speeding the publication of the proposed regulations at issue here.

Again, defendant raises such arguments in the wrong forum. Surely public-minded plaintiffs, upon whom Congress placed reliance to help effectuate the purposes of the Act, should not be denied attorneys' fees because of the Administrator's own budgetary or manpower problems. This is especially so when the Administrator has failed to approach Congress to request additional funds or staff even though conscious of his lack of money and manpower to meet the statutory deadlines. Plaintiff, by bringing this action, was doing precisely what Congress intended when it provided for citizen suits. An award of attorneys' fees is therefore appropriate.

In determining the amount of the award the court is guided by the decision of the Court of Appeals for this Circuit in Wildemess Society v. Morton, 495 F.2d 1026 [4 ELR 20279] (D.C. Cir. 1974), rev'd on other grounds, Alyeska Pipeline Service Co. v. Wildemess Society, 421 U.S. 240 [5 ELR 20286] (1975):

The 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.

495 F.2d at 1036. Plaintiff requests reimbursement for its three attorneys in the following manner: Arthur L. Fox, 83 1/2 hours at $60 per hour; Alan B. Morrison, 11 hours at $80 per hour; Reuben R. Robertson, 3 1/2 hours at $70 per hour. The time spent relates to legitimate research concerning issues raised by the pleadings and motions in the instant case.2 The court is of the opinion that the time for which reimbursement is requested is valid and reasonable.

While a public benefit was conferred by the actions of plaintiff, the court cannot determine with any assurance the actual extent of that benefit. The record before the court shows that the publication of the proposed regulations was speeded; it does not show any obdurate refusal by the Administrator to comply with the law. It appears that the regulations would have been published, albeit at a later date, even if plaintiff had not brought suit. While his assertion of the limited discretion doctrine is legally erroneous, the court cannot say that it was made in bad faith, or that the Administrator postponed the statutory deadlines in bad faith. Moreover, the court is of the opinion that the issues presented were neither so novel nor so complex that excessive skill was demanded. The course of the litigation was brief and uncomplicated. Accordingly, the court will award a fee based on an hourly rate of $30 per hour for Mr. Fox, $40 per hour for Mr. Morrison, and $35 per hour for Mr. Robertson.

By reducing the hourly rate requested by plaintiff for each of its attorneys, the court in no way intends to denigrate the services of counsel. An award of fees under the Act, however, must be in the public interest, and the public should not be overtaxed for services when the statutory purpose can be accomplished by smaller fees that nonetheless encourage public-minded litigation, especially where the issues are not complex or novel, as in the instant case. See Natural Resources Defense Council v. Fri, supra.


The government has requested reimbursement for the services of government counsel in preparing a defense to the notice of deposition of Dr. Meyer. While the court did vacate the notice, the court is not of the opinion that plaintiff's action in noticing the deposition amounted to the type of bad faith or harassing litigation which would ordinarily support an award of attorneys' fees. Moreover, the Act was not intended to be used for such purposes as the defendant advances here. Accordingly, defendant's motion will be denied.

In light of the foregoing, without a hearing pursuant to Local Rule 1-9(f), it is this 25th day of March 1976,

ORDERED that plaintiff's motion for attorneys' fees be and the same hereby is granted to the extent it is consonant with the foregoing memorandum; and it is further

ORDERED that defendant's motion for attorneys' fees be and the same hereby is denied; and it is further

ORDERED that defendant shall, within 30 days of the date of this Order, pay to plaintiff the amount of $3,067.50 as reimbursement for attorneys' fees.

1. Stipulation filed July 3, 1975.

2. Of the time for which reimbursement is requested, 16 1/2 hours were devoted to theinitial motion for attorneys' fees. The court is of the opinion that reimbursement for this time is proper. It would be anomalous to hold that Congress would provide for an award of fees as an inducement to citizen suits, but not permit recovery of fees incurred in attempting to gain that award. The time for which reimbursement is requested for the attorneys' fees motion is entirely reasonable under the circumstances, and will be awarded plaintiff. See Cole v. Hall, 376 F. Supp. 460, 462 (E.D.N.Y. 1974).

6 ELR 20341 | Environmental Law Reporter | copyright © 1976 | All rights reserved