Earth Island Institute v. Southern Cal. Edison, Civ. No. 90-1535-B(BTM).

• Decision Date: 19 November 1993
• Docket Number: Civ. No. 90-1535-B(BTM).
• Parties: EARTH ISLAND INSTITUTE, INC., Donald May and David Jeffries, Plaintiffs, v. SOUTHERN CALIFORNIA EDISON COMPANY, Defendant.
• Court: U.S. District Court — Southern District of California

838 F. Supp. 458

EARTH ISLAND INSTITUTE, INC., Donald May and David Jeffries, Plaintiffs, v. SOUTHERN CALIFORNIA EDISON COMPANY, Defendant.

Civ. No. 90-1535-B(BTM).

United States District Court, S.D. California.

November 19, 1993.

COPYRIGHT MATERIAL OMITTED

Charles S. Crandall, Thomas D. Mauriello and Pamela M. Parker of Milberg Weiss Bershad Specthrie & Lerach ("Milberg Weiss"), San Diego, CA, for plaintiffs.

Arthur L. Sherwood of Gibson, Dunn & Crutcher, Los Angeles, CA, John Stuart Tinker, Nino J. Mascolo of Southern California Edison Co., Rosemead, CA, and Mark R. Haag, U.S. Dept. of Justice, Environment & Natural Resources Div., Mary St. Peter of E.P.A., Washington, DC, for defendant.

ORDER AWARDING ATTORNEYS' FEES TO PLAINTIFFS IN THE AMOUNT OF $1,408,594.94

BREWSTER, District Judge.

In the above captioned case, plaintiffs have moved the court for its approval of a $2 million attorneys' fees award. On April 19 and 21, 1993, and again on September 20, 1993, hearings were held before the Honorable Rudi M. Brewster. At the first hearing, Charles S. Crandall, Esq., of Milberg Weiss Bershad Specthrie & Lerach ("Milberg Weiss") appeared for plaintiffs; Arthur L. Sherwood, Esq., of Gibson, Dunn & Crutcher, appeared for defendant, and Mark R. Haag, Esq., of the United States Department of Justice, Environment & Natural Resources Division, appeared by telephone.¹ At the second hearing, Mr. Crandall and Thomas D. Mauriello, Esq., of Milberg Weiss appeared for plaintiffs; Mr. Sherwood and John Stuart Tinker, Esq., of Southern California Edison Company ("SCE"), appeared for defendant, and Mr. Haag appeared by telephone. At the third hearing, Mr. Crandall and Pamela M. Parker, Esq., of Milberg Weiss appeared for plaintiffs; Mr. Sherwood and Nino J. Mascolo, Esq., of SCE, appeared for defendant, and Mr. Haag and Mary St. Peter, Esq., of the Environmental Protection Agency ("EPA"), appeared by telephone.

I. BACKGROUND

A. Nature of the Case

This action arose out of defendant SCE's operation of the San Onofre Nuclear Generating Station ("SONGS"). On November 8, 1990, Plaintiffs Earth Island Institute, Inc. ("Earth Island"), Donald May and David Jeffries filed suit against defendant for alleged violations of the Federal Water Pollution Control Act ("Clean Water Act"), 33 U.S.C. §§ 1251 et seq. (West 1986 & Supp.1993), and for nuisance. Plaintiffs sought declaratory and injunctive relief, the imposition of statutory civil penalties, other compensatory and punitive damages, the establishment of an environmental trust fund, and attorneys' fees and expenses.

B. Primary Issue — the Cooling Process

The SONGS consists of three nuclear power plant "Units," which generate electrical power using pressurized water nuclear reactors. These reactors boil fresh water which is obtained from the Pacific Ocean and contained in a closed loop. The steam created by this process drives the turbines and is then cooled by ocean water. The cooling water intake structures are located approximately 3,000 feet offshore. Together, the intakes collect two million gallons of water each minute. After the ocean water has performed its cooling function, it is returned to the ocean through conduits located approximately 2,500 feet offshore.

As a prerequisite to construction of Units 2 and 3, SCE was required to obtain two types of permits. First, pursuant to the Clean Water Act and California's Porter-Cologne Water Quality Control Act (the "Porter-Cologne Act"), Cal.Water Code §§ 13000 et seq. (Deering 1993), SCE was required to obtain National Pollutant Discharge Elimination System ("NPDES") permits from the California Regional Water Quality Control Board ("Regional Board").² Second, pursuant to the California Coastal Zone Conservation Act of 1972 ("Coastal Act"), Cal.Pub.Res.Code §§ 27000 et seq. (Deering 1993), SCE was required to obtain permits from the California Coastal Commission ("Coastal Commission").

The Coastal Commission would not issue permits for the construction of Units 2 and 3 until SCE proved that its proposed facility would not have any substantial adverse environmental or ecological effects. After much public debate, in 1974 the Coastal Commission granted the permit under express conditions: (1) that SCE conduct a comprehensive and continuing study of the marine environment offshore from the San Onofre facility, and (2) that SCE modify the facility's cooling system should the study at any time reveal that regulatory requirements were being violated or that marine life was subject to substantial adverse effects.

To supervise this study, the Coastal Commission created the Marine Review Committee ("MRC"), comprised of three representatives — one chosen by SCE, one by the environmental community and one by the Commission. The MRC enlisted numerous scientists and engineers to assist in the study.

Meanwhile, from the late 1970s until the present litigation, plaintiff Donald May urged the state and federal governments to undertake enforcement action against SCE for what he claimed were serious violations of environmental regulatory standards. In 1989, May allegedly sought the assistance of more than a dozen attorneys, law firms and public interest organizations in bringing a citizen enforcement suit, but none would assist him. Finally, in late 1989, the law firm of Milberg Weiss agreed to take the case.

In August 1989, the MRC completed its Final Report. In the 346 page Report, the MRC concluded that SONGS was causing substantial adverse ecological and environmental effects. Final Report of the Marine Review Committee to the California Coastal Commission, August 1989, MRC Document No. 89-02. It found that SONGS met the regulatory standards for temperature and metals, but not for natural light and marine organisms. Id. at 17-18. It also found that the SONGS' intake and discharge mechanisms create substantial turbidity which blocks sunlight necessary for the growth of kelp. Id. at 7, 101-128. Fish and other marine life dependent on kelp are, in turn, adversely affected. The MRC found that turbidity is responsible for an approximate 60% reduction in the size of the kelp bed. Id. at 7. The Report's Summary stated:

The plant kills large numbers of organisms in its intake cooling water, and sometimes moves turbid water into the San Onofre kelp bed (SOK).

The MRC has measured adverse effects on the kelp community in the San Onofre kelp bed, including giant kelp, fish, and large benthic invertebrates. These effects, although local, are deemed substantial because kelp is a valuable and limited habitat.

The MRC calculates that there is a substantial impact on the standing stock of a number of midwater fish populations in the Southern California Bight. The reductions in standing stock are probably between one and ten percent. Because the effects can occur over large populations, we conclude they are substantial.

The MRC has also measured a reduction in the local abundance of some midwater fish populations. In addition, SONGS kills at least 20 tons of fish per year in its intake system.

The MRC analyzed a range of options for preventing, reducing, or mitigating these impacts, and presents two sets of options to the Commission. Option 1a is cooling towers; ... Option 1b is moving the discharges; the MRC recommends against this option. The MRC recommends acceptance of option 2, which involves selection of one or a combination of four techniques: (1) reduction of flow of cooling water through SONGS or other SCE coastal power plants; (2) construction of a high-relief artificial reef designed to maximize fish production; and/or (3) restoration of a wetland. sic (4) Upgrading the existing systems at SONGS that are designed to exclude fish from the plant or to return them to the ocean....

The MRC concludes that SONGS is not in compliance with certain water quality regulations. The level of natural light at the bottom, downcoast from SONGS, was 6-16% lower than it would have been without SONGS. There were significant reductions in local populations of midwater fish, and of kelp, fish and invertebrates in the San Onofre kelp bed....

Id. at 1-3.

The conclusions of the MRC were hotly disputed by marine scientists on a number of scientific and methodological grounds. Some scientists suggested that SONGS would require new cooling towers, at a cost of approximately $2 billion.

In December 1989, the Regional Board discussed the MRC report and possible enforcement action against SCE. In February 1990, the Regional Board gave notice of a hearing scheduled for April 23, 1990, to consider the issuance of a cease-and-desist order. However, this hearing was repeatedly postponed for more than one year.

C. Procedural History

In April 1990, plaintiffs served notice of their intention to file suit against SCE upon the EPA, the Regional Board and SCE. Dissatisfied with these parties' responses, plaintiffs filed suit in this court in November, 1990. In May 1991, this court denied defendant's motion for a stay of the action and plaintiffs' motion for a preliminary injunction.

During this period, Magistrate Judge Barry T. Moskowitz skillfully presided over several unsuccessful settlement conferences. After a January 1992 mandatory settlement conference proved futile, Judge Moskowitz set a trial date and the parties embarked on seven months of extensive discovery. To assist the parties, experts exhaustively analyzed SONGS. Meanwhile, in July 1992, with Judge Moskowitz's approval, counsel contacted a Senior United States District Judge and asked him to mediate settlement. He agreed.

On August 5, 1992, this court denied in part and granted in part defendant's motion for summary judgment. In particular, it denied defendant's motion seeking dismissal of plaintiffs' Clean Water Act claim, but granted defendant's motion seeking dismissal of plaintiffs' nuisance claims.

On August 24-25, 1992, the mediation judge heard lengthy oral presentations by both parties...