ELR Citation: ELR 20082
No(s). s. 87-4849 et al (5th Cir. Oct 13, 1989)

The court holds that an environmental group is entitled to attorney fees for work done on two issues on which it prevailed against the Environmental Protection Agency (EPA), but not for work on a third issue on which EPA and the environmental group took substantially the same position. The environmental group had challenged EPA's application of the Federal Water Pollution Control Act (FWPCA) to the organic chemicals, plastics, and synthetic fibers manufacturers. The court first holds that its memorandum to counsel accompanying the original decision, stating that each party was to bear its own costs, did not preclude recovery of attorney fees. The court holds that the environmental group is entitled to attorney fees because it advanced the FWPCA's goal of reducing pollution in two ways. First, the environmental group obtained an order that EPA's subcategorization scheme be reviewed for possible modification after adequate notice and comment. The environmental group had argued that EPA's subcategorization of the industry into two groups for the development of effluent limitations might lead to unnecessary pollution. Second, the environmental group challenged EPA's failure to adequately consider demonstrated new technologies that may have allowed EPA to promulgate lower new source performance standards. The court further held that because the contention of both EPA and the environmental group in a third issue was that the regulations remanded to EPA be enforced, the environmental group only prevailed against the Chemical Manufacturers Association and is not entitled to attorney fees related to that argument.

The court next holds that the attorneys' billing rates were reasonable considering the attorneys' years of experience and the prevailing market rate. The court holds that the environmental group is entitled to 100 percent of the hours spent on case activities essential for bringing this suit and that would have been necessary had the group litigated only those issues on which it ultimately prevailed. The activities included reviewing the record to narrow and identify issues, preparing and filing the petition for review, and addressing the novel venue selection procedures. The court holds that the environmental group is entitled to 25 percent of the hours spent on aspects of the case not reasonably segregable and not directly attributable to the successful or unsuccessful claims. The court also awarded the environmental group costs for its fees petition, which included preparing a brief, reply brief, and supplemental letter to the court, and reasonable travel expenses in appearing for oral argument.

[Previous cases in this litigation are published at 19 ELR 20989 and 20 ELR 20076.]

Counsel for Petitioners
Theodore L. Garrett, Corinne A. Goldstein, Jay L. Smith
Covington & Burling
1201 Pennsylvania Ave. NW, P.O. Box 7566, Washington DC 20044
(202) 662-6000

Counsel for Respondent
Beth S. Ginsberg, Ass't Attorney General; Margaret N. Stand, Chief, Environmental Defense Section
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611 Ben Franklin Station, Washington DC 20044
(202) 633-2689

Dov Weitman, Francis S. Blake
Office of General Counsel
U.S. Environmental Protection Agency, 401 M St. SW, Washington DC 20460
(202) 475-8040

Counsel for Intervenor
Ronald J. Wilson, Robert Wayne Adler
Wilson & Cotter
1531 P St. NW, Washington DC 20036
(202) 232-3601

Before RUBIN, GARZA, and KING, Circuit Judges.