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