The opinion of the court was delivered by: FLANNERY
This matter comes before the court on the motion of the plaintiffs for attorneys' fees. Plaintiffs are three environmental groups, ("NRDC"), that have been involved in this lengthy environmental litigation. They claim that the Environmental Protection Agency, ("EPA"), as the original defendant, and the intervenor defendants, are liable for fees incurred through plaintiffs' opposition to their respective positions. The government does not oppose an award of fees against it for work reasonably performed by NRDC in opposition to positions taken by the EPA. It does not believe that the amount of fees requested by NRDC is reasonable. The government argues that it should not be liable for work performed by NRDC against the defendant intervenors. Intervenors argue that they should not be liable for any attorneys' fees.
This case has a long and complex history of litigation. A brief review of this history is necessary for an understanding and evaluation of plaintiffs' claim for attorneys' fees. The cases that underlie this application for fees are "citizen suits" brought under 33 U.S.C. § 1365(a)(2) to compel the Administrator of the EPA to perform certain non-discretionary acts in connection with section 307 of the Federal Water Pollution Control Act, ("FWPCA"), 33 U.S.C. § 1317. In March, 1974, a settlement agreement was reached in these cases that has proved to be of great significance in the administration of FWPCA. Numerous industrial groups attempted to intervene so as to participate in the proceedings which were to grow out of this settlement agreement. This court originally denied these motions for intervention, however, the United States Court of Appeals allowed intervention. NRDC v. Costle, 183 U.S. App. D.C. 11, 561 F.2d 904 (D.C. Cir. 1977).
NRDC did not believe that the EPA was complying with the dictates of the settlement agreement, and on September 26, 1978, NRDC moved for an Order to Show Cause why EPA should not be held in contempt. EPA responded with a Motion to Amend the agreement to extend the deadline for promulgating regulations. EPA also sought to make other changes in the agreement. At about the same time, intervenors filed a joint motion to vacate the consent decree. After a series of discussions aimed at settlement of NRDC's contempt motion, the EPA and NRDC agreed upon a joint motion to modify this court's order approving the settlement agreement. They submitted this joint motion to the court on December 15, 1978, and on that same date NRDC withdrew its show cause motion and EPA withdrew its prior motion to modify the agreement. In response, intervenors filed an additional memorandum in support of their joint motion to vacate. Both the EPA and NRDC opposed this motion, and on March 9, 1979, this court denied the joint motion of intervenors to vacate the settlement agreement and granted the joint NRDC-EPA motion to modify the agreement.
On May 7, 1979, several of the intervenors filed an appeal from this court's order. In response, EPA and NRDC submitted separate responsive briefs. These two entities sought to divide the issues between themselves so as to avoid duplication of effort. EPA addressed in detail only the intervenors' procedural objections to the settlement, and NRDC attempted to defend the substance of the settlement. On September 16, 1980, the court of appeals found for EPA and NRDC on all issues raised by the parties. The court, however, sua sponte, raised the issue of whether the Settlement Agreement impermissibly infringed on the discretion that Congress had given to the Administrator of EPA. The case was remanded to this court for resolution of that issue.
This court has previously addressed the question of attorneys' fees in the context of this case. On August 16, 1978, this court allowed plaintiffs to recover attorneys' fees for work done in achieving the results documented in the settlement agreement. In that same order, this court denied intervenors' request for attorneys' fees. The present application for fees presents a novel issue. As stated above, the government does not oppose the payment of a reasonable fee to plaintiffs for work performed by NRDC against EPA. The question remains: who, if anyone, is liable for the fees incurred by NRDC in opposition to positions taken by intervenors. The court attempts to resolve this issue in the discussion that follows.
Congress provided for the award of attorneys' fees in citizen suits brought pursuant to the FWPCA:
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 party, whenever the court determines such award is appropriate.
33 U.S.C. § 1365(d). This court has already awarded fees to NRDC for work done to attain the settlement agreement. This court has stated that the agreement "has proved to be of very great significance in the subsequent administration of the Federal Water Pollution Control Act." Mem. Opinion, August 16, 1978 at 2. It would be an anomalous result to find that NRDC could not be compensated for its efforts to ensure that this agreement was enforced. This court will not subscribe to such a result. The government concedes that NRDC's positions taken against the EPA to further the enforcement of the settlement are compensable. The more difficult question is whether attorneys' fees should be awarded against intervenors for NRDC's efforts to resist intervenors' motions to modify and vacate the settlement agreement.
This question, as it appears in the present case, was not addressed by Congress in the FWPCA. There is no explicit provision that addresses the issue of whether defendant intervenors are liable for attorneys' fees. The structure of the FWCPA as well as its intent must be explored to discover how this question can best ...