ELR Citation: ELR 20382
No(s). s. 75-1698 et al (D.D.C. Jun 20, 1984)

The court holds that plaintiff environmental groups are not entitled under the Federal Water Pollution Control Act (FWPCA) to attorney fees from industry intervenors or the Environmental Protection Agency (EPA) for work performed in opposition to intervenors. Congress has not provided in the FWPCA an expression of intent on the issue of intervenor liability for attorney fees sufficiently clear to overcome the American Rule's presumption that prevailing parties are not entitled to fees. Although that rule has been reversed for parties prevailing against the government under the FWPCA and similar statutes, special care must be exercised when awarding fees against private parties. These intervenors arguably sought to further the goals of the FWPCA by attempting to enforce their nonfrivolous view of the Act and should no more be punished for that attempt than a losing citizen suit plaintiff.

The court next calculates the reasonable level of fees for work performed by plaintiffs to enforce the settlement agreement in opposition to positions taken by EPA. The court determines the number of compensable hours and the reasonable rate for this work to arrive at a lodestar figure.In determining the reasonable number of hours billable, the court holds that citizen suit attorneys must exercise billing judgment in applications for fees, just like attorneys must when billing a client; all unproductive hours should be eliminated. Citizen suit attorneys who charge a reduced rate for public interest cases are not limited to that rate in fee applications, but must nonetheless document their requested rates.

Counsel for Plaintiffs
Barry J. Trilling
Trilling & Kennedy
Suite 310, 1900 L St. NW, Washington DC 20036
(202) 223-1577

Counsel for Defendants
Thomas A. Pursley III, Barry Neuman, Donald W. Stever Jr., Thomas C. Lee, Erica L. Dolgin
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2757

Counsel for Intervenors-Defendants
Theodore L. Garrett
Covington & Burling
1201 Pennsylvania Ave, NW, Washington DC 20044
(202) 662-6000

Michael A. Wiegard
Paul, Hastings, Janofsky & Walker
Sixth Floor, 1050 Thomas Jefferson St. NW, Washington DC 20007
(202) 333-8500