Sierra Club v. Hankinson

• Decision Date: 05 December 2003
• Docket Number: No. 03-11263.,03-11263.
• Citation: 351 F.3d 1358
• Parties: SIERRA CLUB, Plaintiff, Georgia Environmental Organization, Inc., Coosa River Basin Initiative, Inc., et al., Plaintiffs-Appellees, v. John HANKINSON, Regional Administrator, et al., Defendants, United States Environmental Protection Agency, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

351 F.3d 1358

SIERRA CLUB, Plaintiff Georgia Environmental Organization, Inc., Coosa River Basin Initiative, Inc., et al., Plaintiffs-Appellees, v. John HANKINSON, Regional Administrator, et al., Defendants United States Environmental Protection Agency, Defendant-Appellant.

No. 03-11263.

United States Court of Appeals, Eleventh Circuit.

Filed December 5, 2003.

John A. Bryson, U.S. Dept. of Justice, ENRD — Appellate Section, Washington, DC, for Defendant-Appellant.

Douglas P. Haines, Georgia CLPI, Athens, GA, for Plaintiffs-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before ANDERSON, BARKETT and RONEY, Circuit Judges.

BARKETT, Circuit Judge:

The United States Environmental Protection Agency (EPA) appeals from the district court's award of $139,963.57 in attorneys' fees to the Georgia Environmental Organization and other environmental association appellees for monitoring EPA compliance with a 1997 consent decree. The EPA argues that the district court abused its discretion by awarding fees for work that allegedly exceeded the scope of the consent decree and by allowing compensation for expert witnesses who assisted in monitoring compliance with the consent decree but who did not testify in any proceeding. We affirm.

This appeal arises out of protracted litigation to force the state of Georgia and the EPA to comply with their obligations under the Clean Water Act (CWA), 33 U.S.C. § 1251 et seq. Under the CWA, every state must categorize the designated uses of each body of water in its territory and set appropriate water quality standards based upon those uses. 33 U.S.C. § 1313(a)-(c). In addition, every discharger of a pollutant from a discrete, "point" source must obtain a National Pollutant Discharge Elimination System (NPDES) permit from the EPA (or an approved state agency) that specifies the exact level of discharge permitted. Id. at § 1342. In some areas, however, pollution from diffuse, "non-point" sources such as agricultural runoff renders water quality standards unattainable through point-based NPDES permits alone. In such a case, the state must assemble a list of these "water quality limited segments" (WQLS). Id. at § 1313(d). For each body of water on a WQLS list, the state must establish a Total Maximum Daily Load (TMDL), which specifies the highest level of each pollutant that may pass through each day. States are expected to implement TMDLs through a combination of appropriately stringent point source permits and other measures aimed at non-point sources.

The EPA is responsible for approving WQLS lists and TMDLs generated by the states. Moreover, if a state fails to fulfill its duty under the CWA, the EPA is also responsible for initial generation of the lists and standards. See also Sierra Club v. Meiburg, 296 F.3d 1021, 1024-27 (11th Cir.2002) (describing the CWA in more detail).

Georgia ignored its obligation to produce a WQLS list for thirteen years after the 1979 statutory deadline for submission. Then, in 1992, Georgia produced only a partial list. Sierra Club v. Hankinson, 939 F.Supp. 865, 868 (N.D.Ga.1996). Two years later, in light of Georgia's failure to comply adequately with the requirements of the CWA, the Sierra Club and other environmental organizations filed suit under 33 U.S.C. § 1365(a) to force the EPA to update the WQLS list and issue TMDLs. The district court granted summary judgment and ordered the EPA to issue complete TMDLs on a relatively strict five-year schedule. Id. at 873. While the government appeal was pending, the parties entered into a consent decree requiring that the EPA review and update Georgia's WQLS list. Order of Dec. 17, 1996. The following year, the parties signed a second consent decree setting a timetable for the EPA to establish TMDLs for each body of water on Georgia's (biannually updated) WQLS list. Order of Oct. 16, 1997.

The EPA submitted the first list of proposed TMDLs for 124 water segments along with the consent decree, but two years later, Georgia had yet to incorporate them into its water management plans, and neither the state nor the EPA had moved to implement them in other ways. Meiburg, 296 F.3d at 1028. The Sierra Club moved the district court to reopen the decree and compel further action, and Georgia promised to develop implementation plans within nine months. Once Georgia's plans had been issued, the EPA moved to have the Sierra Club motion dismissed as moot, but the district court ruled that implementation plans formed part of the consent decree and that the EPA therefore had an obligation to ensure that the plans were adequate. Id. In Sierra Club v. Meiburg, this Court rejected the district court's interpretation and held that implementation plans did not fall within the terms of the consent decree. Id. at 1030-32.

The plaintiffs also requested payment of costs and attorneys' fees under 33 U.S.C. § 1365(d) for their work in monitoring EPA compliance with the consent decree. In light of this Court's ruling in Meiburg, the district court struck all requests for fees relating to TMDL implementation. The court also eliminated time spent on redundant work, general background research research, unsuccessful motions, and certain specific litigation issues. The district court then awarded $139,963.57 to the remaining environmental plaintiffs,¹ which included $30,425.61 for expenses associated with expert witness Barry Sulkin. The EPA timely appealed.

We review a district court award of attorneys' fees for abuse of discretion. ACLU v. Barnes, 168 F.3d 423, 427 (11th Cir.1999). A district court has "wide discretion" in exercising its judgment on the appropriate fee level, though the court must articulate the decisions it makes, give principled reasons for those decisions, and show the specific fee calculations. Norman v. Housing Authority of Montgomery, 836 F.2d 1292, 1304 (11th Cir.1988). A district court abuses its discretion when it fails to apply the appropriate legal standard, follows improper procedures, or relies upon clearly erroneous findings of fact. ACLU, 168 F.3d at 427.

A district court may award fees for post-judgment monitoring of a consent decree. Penn. v. Del. Valley Citizens' Council, 478 U.S. 546, 557-61, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986). However, such work must be relevant to the rights established by the decree and related to the terms of the judgment. Brooks v. Ga. State Bd. of Elections, 997 F.2d 857, 864 (11th Cir. 1993).

The EPA argues that the district court awarded fees for work beyond what was reasonably necessary to monitor compliance with the consent decree. Relying upon our decision in Meiburg, the EPA claims that the consent decree merely obligated the agency to establish TMDLs in some form. Although the EPA concedes that the plaintiffs may recover the costs necessary to determine whether the agency promulgated standards, the EPA insists that the plaintiffs did not have to examine the standards in any detail. According to the agency, "[o]ne does not have to review the content of the TMDLs and assess their validity to decide if EPA fulfilled its obligation to establish them as required by the decree."²

We do not agree with such a crabbed reading of our prior decision or of the consent decree itself. In Meiburg, we simply noted that implementation plans were not mentioned within the definition of TMDL, within the list of EPA obligations, or anywhere within the consent decree. 296 F.3d at 1030. As a result, by reading an implementation requirement into the consent decree, the district court had "changed the legal relationship of the parties" and in effect modified the decree. Id. at 1032.³

By contrast, the plaintiffs' review of the content of the TMDLs and the WQLS lists relates to both specific language in the consent decree and the definitions incorporated by reference. The decree defines a relatively rigid timetable for the EPA to establish TMDLs over a period of some six years, and each TMDL "shall be established at a level necessary to implement the applicable water quality standards." See 33 U.S.C. § 1313(d)(1)(C) (incorporated by reference into Consent Decree at 9). The EPA must conduct "a biennial review of the TMDL program in Georgia," including "whether the TMDLs ... have been incorporated into Georgia's NPDES permits." Consent Decree at 16. Moreover, each stage of TMDL proposals by the EPA relates to a new WQLS list promulgated by the state of Georgia, making review of the underlying WQLS lists essential to monitoring the TMDLs themselves. Consent Decree at 11-14. The EPA also agreed to "propose incorporation" of language linking TMDLs and the NPDES permits "into future Georgia/EPA Performance Partnership Agreements (PPA)." Consent Decree at 15. Given this explicit language within the consent decree, we agree with the district court that examination of the content of the TMDLs, WQLS lists and PPAs was "necessary to meaningful enforcement of the Consent Decree." Order at 7. This information certainly appears "relevant to those rights" established by the decree and "related to terms of the judgment," as required under our decision in Brooks, 997 F.2d at 864.

The EPA also argues that a consent decree clause reserving the right of the plaintiffs to challenge the TMDLs in the future implies that the consent decree covered only the existence of the standards rather than their compliance with applicable laws. Similarly, the EPA claims that challenges to future TMDLs would require "different issues and new administrative records," implying that such claims are distinct from any rights secured by the consent decree. However, the possibility of a future, separate TMDL challenge does not imply that all issues relating to TMDLs would have to be litigated separately. Had the plaintiffs discovered that certain TMDL standards were so patently inadequate that they did not meaningfully implement the consent decree, the plaintiffs could...