ELR Citation: ELR 21378
No(s). 87-3751 (5th Cir. Sep 6, 1988)

The court holds that the Corps of Engineers' failure to prepare an environmental impact statement (EIS) for its renewal of shell dredging permits was not substantially justified under the Equal Access to Justice Act (EAJA), but the district court must reconsider whether Louisiana's participation in the case makes an award of attorney fees to the environmental group plaintiffs unjust. The court first holds that the Corps' failure to prepare an EIS for the permit renewals was not substantially justified by alleged uncertainty over whether an EIS is required when a governmental action would or may significantly degrade the environment. The Council on Environmental Quality's regulations clearly require the Corps to prepare an EIS for activities that may significantly affect the environment and the Corps knew that the permit renewals might degrade the environment. The court, however, directs the district court to consider whether the participation of Louisiana, which is ineligible for EAJA fees, would make an award to the environmental group plaintiffs unjust. The court holds that Louisiana's participation could constitute a "special circumstance" barring an EAJA award, since the environmental groups may not take a free ride at the government's expense if an ineligible party is willing and able to prosecute the action. The court directs the district court to reconsider its award of an enhanced fee of $125 an hour to one attorney, since the district court did not find that qualified counsel was unavailable at the lower rate. The court holds that the cost of living adjustments for two other attorneys should be measured from the date of the EAJA's enactment in 1981, not its reenactment in 1985.

[The district court decision is published at 17 ELR 20209. Decisions in the underlying case appear at 15 ELR 20141 and 20609 and 16 ELR 20828.]

Counsel for Plaintiffs
Ian Lindsay, William G. Davis, Ass't Attorneys General
Department of Justice
7434 Perkins Rd., Baton Rouge LA 70808
(504) 342-7013

Charles M. Osborne
Osborne, McComiskey & Richardson-Harp
3420 Prytania St., New Orleans LA 70115
(504) 891-4418

Counsel for Defendants-Appellants, Cross-Appellees
Michael P. Healy
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2757

Before WISDOM, RUBIN, and JONES, Circuit Judges.