ELR Citation: ELR 20869
No(s). s. 82-1384 et al (D.C. Cir. Aug 2, 1985)

The court rules that petitioners, who had challenged Environmental Protection Agency rules on tall stacks, are entitled to attorney fees under §307(f) of the Clean Air Act for time spent on issues on which they were at least partly successful and for their work on the fee petition, but not for work on issues on which they achieved no success or in opposing intervenors' petition for certiorari. The court first rules that petitioners must have achieved a modicum of success on the merits to qualify for fees under §307(f) and that this analysis must be applied issue by issue. Courts must be reluctant to award fees for work on unsuccessful issues that are unrelated to issues on which petitioners succeeded. The court next reviews each of the substantive issues in the case, awarding fees for reasonable hours expended on each in which the merits panel awarded petitioners some substantive relief. The court denies fees for issues on which petitioners lost and for one issue in which their only victory was in prompting remand to EPA for an explanation of the reasons for its challenged action.

Turning to the fee amount, the court first rules that petitioners reasonably calculated the hours expended on the case. That petitioners spent twice the hours of the government does not make their claim unreasonable, particularly where they omitted 200 hours of paralegal and law clerk time and deducted 40 hours in an exercise of billing judgment. The court rejects respondent's argument that petitioner did not reasonably allocate work on the case among lawyers with different levels of experience. It then reduces the hours claimed by each of the three lawyers representing petitioners by 30 percent, based on the percentage of time that the one lawyer who kept issue-specific records spent on issues for which fees were denied.

Turning to the hourly rates, the court awards petitioners' senior lawyers $125 per hour and their junior lawyer $75 per hour, based on prevailing rates in the community, not on the rates at which they bill their not-for-profit firms. The award for senior attorneys is less than the $150 per hour requested, but more than awarded for attorneys with similar experience in past cases due to inflation in fees since those cases were decided.

The court rejects petitioners' request for upward adjustments in the lodestar fees. Their request for a 50 percent increase to take account of their risk of failure fails because such awards are available only in extraordinary cases. Petitioners faced average chances of success, the court finds. The court also rejects petitioners' request for enhancement of the lodestar to account for the risk of delayed payment, since they sought and were awarded fees on the basis of rates prevailing at the time of the fee petition, not the substantive litigation.

The court rules that petitioners are not entitled to fees for their work on the petition for certiorari filed by intervenors. The court finds reasonable intervenors' position before the Supreme Court and concludes that an award of fees against a private party in these circumstances would be inappropriate. The court leaves open the question of whether §307(f) empowers it to award fees for work on a petition before the Supreme Court. The court declines to address whether §307(f) authorizes fees against private party intervenors but notes that the "pro-environment" stance of petitioners should not be a factor in deciding whether they are entitled to fees.

The court grants petitioners fees for time expended on the fee petition, but limits their outside counsel on this issue to the rate, $60 per hour, that he charges nonprofit clients for such work, rejecting the $150 per hour rate he charges commercial clients. Finally, the court awards petitioners their photocopying, postage, and telephone costs, but denies their request for the fees paid a technical consultant. The court rules that §307(f) covers attorneys and expert witnesses, but not nonlawyer assistants who do not testify.

Counsel for Petitioners
Howard I. Fox
Sierra Club Legal Defense Fund
1424 K St. NW, Washington DC 20005
(202) 347-1770

Richard E.Ayres
Natural Resources Defense Council
1350 New York Ave. NW, Washington DC 20005
(202) 783-7800

Counsel for Respondent
Catherine A. Cotter, Barry S. Neuman
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5260

Christina Kaneen, Charles S. Carter
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-4134

Before EDWARDS, Circuit Judge, and McGOWAN and MacKINNON, Senior Circuit Judges.