STUDENT PUBLIC INTEREST RES. GROUP v. Monsanto Co.

• Decision Date: 14 February 1989
• Docket Number: No. 83-2040.,83-2040.
• Parties: STUDENT PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, et al. v. MONSANTO COMPANY.
• Court: U.S. District Court — District of New Jersey

721 F. Supp. 604

STUDENT PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, et al. v. MONSANTO COMPANY.

No. 83-2040.

United States District Court, D. New Jersey.

February 14, 1989.

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Michael Gordon, West Orange, N.J., Carolyn Smith Pravlik, Bruce Terris, Terris, Edgecombe, Hecker & Wayne, Washington, D.C., for plaintiffs.

Davis, Reberkenney Abramowitz, P.A., Cherry Hill, N.J., Robert Blomquist and Kenneth D. Roth, Trial Counsels, for defendant.

OPINION

VANARTSDALEN, Senior Judge.

I. INTRODUCTION

The Third Circuit Court of Appeals has cautioned that attorneys' fee applications have the potential for "assuming massive proportions, perhaps even dwarfing the case in chief." Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102, 116 (3d Cir. 1976) (Lindy II). It was hoped that having received — on the pending issue of attorneys' fees alone — a total of twenty-six pounds of pleadings, responsive pleadings, and counter-responsive pleadings measuring three feet in thickness, that the proper measure of attorneys' fees and litigation expenses could finally be determined and end this litigation spanning more than half of this decade. Unfortunately however, there has recently been filed a further application for additional attorneys' fees and costs involved in preparing and briefing the present fee application from May 9, 1988 to December 1, 1988, seeking $78,778.34 in additional compensation. Undoubtedly, plaintiffs' counsel will seek additional future compensation as this dispute winds its way through the appellate process. A brief review of the relevant facts is in order.

On June 6, 1983 plaintiffs, Student Public Interest Research Group of New Jersey (SPIRG) and Friends of the Earth (hereinafter collectively referred to as plaintiffs), by and through their attorneys Terris, Edgecombe, Hecker & Wayne (Terris firm or plaintiffs' counsel), commenced a citizens' suit against defendant Monsanto Company (Monsanto) pursuant to Section 505 of the Federal Water Pollution Control Act (Clean Water Act), as amended, 33 U.S.C. § 1365. Prior to filing the lawsuit, plaintiffs provided notice of their intention to sue by letter to the Environmental Protection Agency (EPA), the New Jersey Department of Environmental Protection (NJDEP) and Monsanto.

In their complaint, plaintiffs alleged that Monsanto had violated the Clean Water Act by discharging pollutants from its Bridgeport, New Jersey, facility into the Delaware River in violation of the discharge limitations contained in its National Pollutant Discharge Elimination System (NPDES) permit. Plaintiffs alleged over 204 violations of Monsanto's NPDES permit. It should be noted that the violations were taken directly from Discharge Monitoring Reports (DMRs) and Non-Compliance Reports (NCRs) which Monsanto itself had prepared and filed with the EPA and NJDEP in accordance with state and federal reporting requirements. Plaintiffs sought in their complaint, inter alia, declaratory relief, injunctive relief, the imposition of civil penalties of $10,000 per day for each violation and an award of litigation fees and costs.

On December 14, 1983, the Honorable John F. Gerry entered summary judgment in favor of plaintiffs on the issue of liability for 236 violations (from August 4, 1977, through September 12, 1983). Six of those 236 violations occurred subsequent to the filing of the complaint. However, there remained to be resolved the issue of Monsanto's liability for thirty-five permit violations which occurred following Judge Gerry's decision. In January 1988, this case came to trial before me to determine liability as to the additional thirty-five alleged permit violations, the amount of any civil penalties to be assessed against Monsanto for all violations, and the propriety of injunctive or other equitable relief.

Plaintiffs sought the imposition of a maximum penalty of $17,190,000.00 on all claimed violations as set forth in their pretrial proposed findings of fact and conclusions of law. This figure was based in part upon plaintiffs' contention that penalties should be assessed for each day of the month in which there was, on any day of the month, a violation of Monsanto's average daily permitted discharge amount. Plaintiffs additionally urged this court to apply the EPA Civil Penalty Policy in determining the minimum civil penalty to be assessed against Monsanto. Plaintiffs argued that consistent with this policy, the amount of any penalty had to reflect the economic benefit derived by Monsanto from noncompliance, as well as the gravity of the noncompliance. Under this alternative approach, plaintiffs sought the imposition of a minimum penalty of $2,392,066.00 for all claimed violations.

Following a nine-day bench trial, on March 30, 1988, I filed an opinion and order disposing of the outstanding merits of the case. 1988 WL 156691. I concluded therein that no civil penalties should be assessed for pre-complaint, pre-notice violations. Opinion at 14-22. Penalties were determined to be appropriate, however, in thirty-eight of the alleged forty-one post-complaint violations. Id. at 22-27. I additionally held that plaintiffs' were entitled to an award of litigation fees and costs pursuant to Section 505(c) of the Federal Water Pollution Control Act, 33 U.S.C. § 1365(c). Opinion at 37. In that regard, the order directed Monsanto to pay plaintiffs' litigation costs, including reasonable attorney and expert witness fees, and provided that if the parties were unable to agree on the amount of such costs and fees plaintiffs should submit an application to the court on or before April 30, 1988.

Despite attempts to resolve their differences, the parties were unable to agree and plaintiffs submitted the instant fee petition seeking $519,411.80 in attorney's fees, $114,108.39 for expenses and expert witness fees, and a delay enhancement of $155,879.97, for a total claim of $789,400.16. Plaintiffs' Brief at 30. While plaintiffs' counsel are properly entitled to reasonable litigation expenses, including attorney's fees, the claimed sum is excessive and will be reduced in accord with the following discussion.

II. DISCUSSION

A. Plaintiffs' Entitlement to Litigation Expenses

My conclusion that plaintiffs are entitled to reasonable litigation costs and attorneys' fees is amply set forth in my opinion and order entered March 30, 1988. See Opinion at 37-38.

B. Underlying Policies of Fee-Shifting Statutes

Plaintiffs' application for the award of attorneys' fees is brought pursuant to Section 1365(d) of the Clean Water Act, which provides in pertinent part that

the court in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such an award is appropriate.

An award of attorney's fees in favor of the prevailing party is not mandatory. The "benchmark" of an award under a fee-shifting statute of this nature is that the fees assessed against the non-prevailing party be "reasonable". See Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (Delaware Valley I).

In determining whether an award of fees is "reasonable" within the meaning of section 1365(d), the underlying policies of the statute should be considered. One of the main purposes of section 1365(d), as well as that of other federal fee-shifting statutes, is to enhance enforcement of important federal policies through citizen involvement. Delaware Valley I, 478 U.S. at 559-60, 106 S.Ct. at 3095-96; SPIRG v. AT & T Bell Laboratories, 842 F.2d 1436, 1449 (3d Cir.1988) (SPIRG v. AT & T).

The United States Supreme Court has enunciated a balancing test to be employed by the court in assessing the reasonable measure of attorney's fees. The attorneys' fee award should be "adequate enough to attract competent counsel to the case," SPIRG v. AT & T, 842 F.2d at 1448 (citing Senate Report on § 1988 of the Civil Rights Act, S.Rep. No. 1011, 94 Cong., 2d Sess. 6, reprinted in, 1976 U.S. Code Cong. & Admin.News 5908, 5913), while avoiding the award of an undue windfall. See Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 107 S.Ct. 3078, 3090-91, 97 L.Ed.2d 585 (1987) (O'Connor, J. concurring) ("A court may not enhance a fee award any more than necessary to bring the fee within the range that would attract competent counsel.") (Delaware Valley II); Delaware Valley I, 478 U.S. at 565, 106 S.Ct. at 3098 ("These fee-shifting statutes were not designed as a form of economic relief to improve the financial lot of attorneys, nor were they intended to replicate exactly the fee an attorney could earn through a private fee arrangement with his client."). Thus, it follows that not every expense which might ordinarily be charged a firm's fee paying clients is necessarily "reasonable" under the purview of section 1365(d).

The Third Circuit has enunciated a two-part test to be used in the calculation of reasonable attorneys' fees known as the "lodestar" approach. The court should first determine the "hours reasonably spent" on the case, and multiply that figure by the "reasonable hourly rate" of compensation for each attorney involved. Delaware Valley I, 478 U.S. at 563, 106 S.Ct. at 3097 (citing Lindy Brothers Builders, Inc. v. American Radiator & Standard Sani- tary Corp., 487 F.2d 161, 167 (3d Cir.1973) (Lindy I). Second, using the lodestar figure as a starting point, adjustments may be made to that figure in light of "(1) the contingent nature of the case, reflecting the likelihood that hours were invested and expenses incurred without assurance of compensation; and (2) the quality of the work performed as evidenced by the work observed, the complexity of the issues and the recovery...