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NATURAL RESOURCES DEFENSE COUNCIL, INC. v. FOX

February 6, 2001

NATURAL RESOURCES DEFENSE COUNCIL, INC., ENVIRONMENTAL DEFENSE FUND, INC., AND ALAN G. HEVESI, PLAINTIFFS,
V.
JEANNE FOX, REGIONAL ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, REGION II, CAROL BROWNER, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, AND UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, DEFENDANTS.



The opinion of the court was delivered by: Leisure, District Judge.

OPINION AND ORDER

BACKGROUND

Plaintiffs, Natural Resources Defense Council, Inc., Environmental Defense Fund, Inc., and Alan G. Hevesi (collectively "NRDC") brought the underlying action against the Environmental Protection Agency and two of its administrators (collectively "EPA") pursuant to the Clean Water Act ("CWA") and the Administrative Procedure Act ("APA"). NRDC brought the underlying action to enforce in New York a provision of the CWA that requires that threatened water bodies in each state be identified and that pollution limits be set for each state's water bodies.

This action was litigated in two major phases. In the first phase of the litigation, plaintiffs alleged that in the face of New York State's failure to identify threatened water bodies and to establish pollution limits, known as total maximum daily loads ("TMDLs"), for its water bodies, the EPA unlawfully failed to intervene and identify the threatened water bodies and to establish the pollution limits for New York. Plaintiffs commenced the action in November of 1994, alleging five claims against the EPA. In Claims One through Four, plaintiffs alleged that the EPA violated the CWA when it did not treat New York's failure to submit a list of threatened water bodies and TMDLs as a "constructive submission," disapprove that constructive submission, and then identify the threatened water bodies and set the TMDLs. See Complaint. In Claim Five, plaintiffs alleged that the EPA's approval of New York State's 1992 revisions of its water quality standards was arbitrary and capricious in violation of the APA. See id. In March of 1997, plaintiffs amended their complaint to add Claims Six and Seven, in which plaintiffs alleged that the EPA violated the APA because it did not formally disapprove New York State's constructive TMDL submission and promulgate TMDLs for New York in response to New York State's inaction. See Second Amended Complaint. In sum, in the first phase of the litigation, which consisted of Claims One through Seven, plaintiffs alleged that the EPA violated the CWA and the APA by failing to act in the face of New York State's inaction.

The second phase of this litigation began in 1997 when New York State submitted TMDLs for eighteen reservoirs and the EPA acted on the TMDLs. The EPA approved eight of the TMDLs and treated ten of the TMDLs as "informational." In December of 1997, plaintiffs amended their complaint two more times to add Claims Eight through Thirteen. In Claims Eight and Nine, plaintiffs challenged under the CWA and the EPA, respectively, the EPA's approval of eight of the TMDLs. In Claims Ten and Eleven, plaintiffs challenged under the CWA and the APA, respectively, the EPA's treatment of the remaining ten TMDLs as "informational." See Third Amended Complaint. In Claims Twelve and Thirteen, plaintiffs claimed that the EPA violated the CWA and the APA, respectively, by failing to "oversee and effectuate" New York's TMDL program. See id.

In its 1995 Opinion and Order, the Court dismissed Claims One and Two as moot because New York had submitted a list of threatened water bodies to the EPA, and the Court granted the defendants' summary judgment motion with respect to Claim Five. See Natural Resources Defense Council, Inc. v. Fox, 909 F. Supp. 153 (S.D.N.Y. 1995) [hereinafter, "NRDC I"]. In its 1998 Opinion and Order, the Court granted defendants' summary judgment motion with respect to Claims Three, Four, and Eight. See Natural Resources Defense Council, Inc. v. Fox, 30 F. Supp.2d 369 (S.D.N.Y. 1998) [hereinafter, "NRDC II"]. In its 2000 Opinion and Order, the Court entered judgment in favor of plaintiffs on Claim Ten but dismissed all other claims. See Natural Resources Defense Council, Inc. v. Fox, 93 F. Supp.2d 531 (S.D.N.Y. 2000) [hereinafter, "NRDC III"].

Plaintiffs now bring this Motion seeking attorneys' fees and costs.

DISCUSSION

I. Prevailing Party

The Clean Water Act authorizes the Court to "award costs of litigation (including reasonable attorney and expert fees) to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate." 33 U.S.C. § 1365(d). The determination of "whether a plaintiff is a `prevailing party' within the meaning of the fee-shifting statutes is a threshold question that is separate from the question of the degree to which the plaintiff prevailed." LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 757 (2d Cir. 1998).*fn1

"[A] plaintiff `prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). "For a plaintiff to be considered a `prevailing party,' and thus eligible for an award of fees, he need not have succeeded on `the central issue' in the case . . . and need not have `obtained the primary relief sought.'" LeBlanc-Sternberg, 143 F.3d at 757 (citing Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 790-91, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989) and Carroll v. Blinken, 42 F.3d 122, 130 (2d Cir. 1994)). Rather, "plaintiffs may be considered `prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit. This is a generous formulation that brings the plaintiff only across the statutory threshold. It remains for the district court to determine what fee is `reasonable.'" Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).

NRDC is a prevailing party and is eligible for a fee award because prevailing claim, Claim Ten, was a significant issue in the litigation and achieved some of the benefit plaintiffs sought in bringing the suit. Plaintiffs brought this suit to protect New York City's "drinking water supply and the health of the approximately 9 million people who depend upon it." Complaint at 1. Finding for the plaintiffs on Claim Ten, the Court ordered the EPA to take action on submitted TMDLs for ten reservoirs, which includes "5 of the 6 large West-of-Hudson reservoirs, which collectively supply on average 90% of the City's daily water supply." Affidavit of Mark A. Izeman, Esq., sworn to on June 28, 2000 [hereinafter, "Izeman Aff"]; see also Plaintiffs' Memorandum in Support of Application for Attorneys' Fees and Costs [hereinafter, "Plaintiffs' Memo"] at 4. By prevailing on this significant issue, NRDC achieved some of the benefit it sought when bringing the suit, and is therefore a prevailing party for attorneys' fees and costs purposes.

II. Loadstar

The determination of a reasonable fee "begins with the court's calculation of a so-called `loadstar' figure, which is arrived at by multiplying `the number of hours reasonably expended on the litigation by a reasonable hourly rate.'" LeBlanc-Sternberg, 143 F.3d at 763-64 (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)).

A. Number of Hours

1. Degree of ...


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