Environmental Defense Fund, Inc. v. E.P.A.
| Decision Date | 05 February 1982 |
| Docket Number | No. 79-1580,79-1580 |
| Citation | 217 U.S.App.D.C. 189,672 F.2d 42 |
| Parties | , 217 U.S.App.D.C. 189, 12 Envtl. L. Rep. 20,315 ENVIRONMENTAL DEFENSE FUND, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Ad Hoc Committee on Liquid Dielectrics of the Electronic IndustriesAssociation, et al., Joy Manufacturing Co., Edison Electric Institute, et al.,Aluminum Company of America, et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Jacqueline M. Warren, David J. Lennett, Washington, D. C., Bingham Kennedy, McLean, Va., and Barry J. Trilling, Washington, D. C., were on the brief for petitioner.
Ellen Siegler, Atty., U. S. Environmental Protection Agency, and Donald W. Stever, Atty., U. S. Dept. of Justice, Washington, D. C., were on the brief for respondent.
Steven S. Rosenthal, Washington, D. C., was on the brief for intervenors, AC Paper & Film Capacitor Section of the Electronic Industries Ass'n and National Electrical Mfgrs. Ass'n.
Before ROBINSON, Chief Judge, EDWARDS, Circuit Judge, and HOWARD F. CORCORAN, * United States Senior District Judge.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
On June 7, 1979, the Environmental Defense Fund (EDF) petitioned for review of regulations, issued by the Environmental Protection Agency (EPA), implementing Section 6(e) of the Toxic Substances Control Act (TSCA), 15 U.S.C. §§ 2601-2629 (1976). Section 6(e) of TSCA provides broad rules governing the disposal, marking, manufacture, processing, distribution, and use of a class of chemicals called polychlorinated biphenyls (PCBs). EDF sought review of three aspects of the EPA regulations. First, it challenged the determination by EPA that certain commercial uses of PCBs are "totally enclosed," a designation that exempts those uses from regulation under the Act. Second, it claimed that the EPA acted contrary to law when it limited the applicability of the regulations to materials containing concentrations of PCBs greater than 50 parts per million (ppm). Third, EDF challenged the decision by EPA to authorize the continued use of 11 non-totally enclosed uses of PCBs.
The oral argument in this case was held on June 6, 1980, and an opinion for the court was issued on October 30, 1980, in which it was held that:
(1) no substantial evidence supported the administrative determination by EPA to classify certain polychlorinated biphenyl uses as "totally enclosed" and therefore exempt;
(2) no substantial evidence supported the administrative decision by EPA to exclude from regulation all materials containing concentrations of PCBs below 50 ppm; but
(3) substantial evidence supported the administrative determination by EPA to allow the continued use of 11 non-totally enclosed uses.
Environmental Defense Fund v. EPA, 636 F.2d 1267 (D.C.Cir.1980). As a result of this decision by the court, the parties agreed upon and the court approved a series of new rulemaking proceedings designed to develop the factual bases for an improved approach toward the regulation of PCBs.
On August 24, 1981, EDF moved for an award of $156,600.00 in attorneys' fees for its participation in the case. This figure was later amended to $156,248.00. In addition, EDF requested $13,992.00 for the hours devoted by the law firm of Trilling & Kennedy for the preparation of a reply memorandum on the issue of attorneys' fees.
The following list details the sequence of events pertaining to EDF's motion for attorneys' fees:
Aug. 24, 1981-Motion of Petitioner EDF for attorneys' fees (hereinafter "EDF Motion")
Sept. 15, 1981-Opposition of AC Paper & Film Capacitor Section of the Electronic Industries Association to the EDF's Motions for Attorneys' Fees (hereinafter "AC Paper Opposition") Sept. 15, 1981-Response of EPA to EDF's Motion (hereinafter "EPA response")
Sept. 15, 1981-Statement of National Electrical Mfgrs.
Oct. 23, 1981-Motion by EDF for leave to supplement motion for attorneys' fees
Oct. 23, 1981-Supplementary declarations in support of EDF's motion for attorneys' fees (hereinafter "EDF Supplementary Motion")
Oct. 23, 1981-Motion of EDF for leave to file its motion for attorneys' fees out of time
Oct. 26, 1981-"Corrected" reply memorandum of EDF to EPA's and Intervenor EIA's responses in opposition to motion for attorneys' fees (hereinafter "EDF Reply")
Oct. 29, 1981-Respondent's motion for enlargement of time in which to respond to petitioner's motion for leave to supplement motion for attorneys' fees
Nov. 9, 1981-Order granting enlargement of time requested by EPA
Nov. 10, 1981-EPA's response in opposition to EDF's motion for leave to supplement motion for attorneys' fees (hereinafter "EPA Response to Supplementary Motion")
Nov. 20, 1981-Reply of EDF to EPA's Opposition to petitioner's motion for leave to supplement motion for attorneys' fees (hereinafter "EDF Reply on Supplementary Motion")
The opposition filed by intervenor AC Paper raises three issues. First, it is contended that the 837 hours of experienced lawyer time claimed by EDF appears to be an excessive expenditure of time for this case. Second, it is argued that there is no basis for EDF's request that its "lodestar" fee be adjusted upward by 100%. Finally, it is urged that Petitioner's Motion should be dismissed because EDF's request for fees is over nine months out of time. The EPA, although opposing EDF's motion for fees on several grounds, has not contended that the motion is untimely. EDF, not surprisingly, rejects the claim that its Motion is untimely; however, in an abundance of caution, EDF has filed a "Motion For Leave To File Its Motion for Attorneys' Fees Out of Time." 1
The EPA Response to the EDF Motion does not seriously contest the claim for attorneys' fees. 2 Rather, EPA makes the following principal arguments:
(1) The court should strictly scrutinize EDF's claims for attorneys' fees. EPA Response at 6-9.
(2) EDF's estimated "lodestar" fee is substantially exaggerated, both in terms of the "number of hours reasonably expended" and the "reasonableness of the hourly rate." Id. at 12-21.
(3) No upward adjustment to the "lodestar" is warranted. Id. at 21-26.
These arguments duplicate those raised by AC Paper except with respect to the timeliness issue.
Section 19(d), of TSCA, 15 U.S.C. § 2618(d), authorizes awards of attorneys' fees in cases involving petitions for review of regulations brought, as was the instant case, pursuant to section 19(a):
The decision of the court in an action commenced under subsection (a), or of the Supreme Court of the United States on review of such decision, may include an award of costs of suit and reasonable attorneys' fees for attorneys and expert witnesses if the court determines such an award is appropriate.
As was noted in Sierra Club v. Gorsuch, 672 F.2d 33 (D.C.Cir.1982), a case involving a comparable attorneys' fee provision under the Clean Air Act:
On its face, the statutory provision clearly permits the court to award attorneys' fees to prevailing, substantially prevailing, or non-prevailing parties in "appropriate" cases.
Id. at 34. The same may be said of the relevant statutory provision in section 19(d) of TSCA.
The significance of the attorneys' fee provision of TSCA may be highlighted by comparison to other statutory fee provisions. For example, 5 U.S.C. § 552(a) (4)(E) provides that attorneys' fees under the Freedom of Information Act are available only to a complainant who has "substantially prevailed." Likewise, 28 U.S.C. § 2412(b), covering awards of fees against the United States, provides that:
Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys ... to the prevailing party in any civil action brought by or against the United States or any agency and any official of the United States acting in his or her official capacity....
(emphasis added). 3 In enacting a provision allowing for an award of attorneys' fees whenever a court finds that...
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