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Sierra Club v. McCarthy

United States District Court, District of Columbia

January 27, 2017

SIERRA CLUB, Plaintiff,
GINA MCCARTHY, in her official capacity as Administrator of the United States Environmental Protection Agency, Defendant.


          COLLEEN KOLLAR-KOTELLY United States District Judge.

         Plaintiff Sierra Club filed this action to compel the Administrator of the United States Environmental Protection Agency (“E PA ”) to take certain actions mandated by the Clean Air Act (“CAA”), 42 U.S.C. § 7401 et seq. EPA took those actions on March 10, 2016, and at the parties' request, the Court subsequently dismissed the [1] Complaint as moot. See Order, ECF No. 14.

         Presently before the Court is Plaintiff's [15] Motion for Attorney Fees and Costs under the Clean Air Act, 42 U.S.C. § 7604(d), which requests $25, 371.50 in attorney fees, $440.16 in costs, and an additional $14, 462.50 in so-called “fees for fees, ” or attorney fees incurred in seeking compensation for attorney fees. Upon consideration of the pleadings, [1] the relevant legal authorities, and the record as a whole, the Court GRANTS IN PART the Plaintiff's Motion, and awards attorney fees in the amount of $17, 184.04, and costs in the amount of $440.16.

         I. BACKGROUND

         The facts and procedural history of the underlying litigation are not in dispute. EPA establishes air quality standards for certain substances that cause or contribute to air pollution and which pose a danger to public health or welfare. When EPA issues new or revised air quality standards, it must, within three years, designate areas as either meeting or not meeting those new or revised standards (“attainment” and “non-attainment” areas). After EPA does so, states designated as including a non-attainment area must submit plans, known as State Implementation Plans (“SIP”), for meeting the new or revised air quality standards. Fee Mot. at 1.

         For the air pollutant at issue here, sulfur dioxide, states must submit SIPs within 18 months of the EPA's designation. If a state does not submit an SIP within 6 months of the expiration of the 18-month period, EPA has a nondiscretionary duty to “publish in the Federal Register[] a ‘finding of failure to submit' determination[, which . . .] triggers EPA's obligation to step in and create a Federal Implementation Plan . . . .” Id. at 9. Here, EPA issued revised air quality standards for sulfur dioxide in June 2010, and designated areas in 16 states as “non-attainment areas” in August 2013. Those states were then required to submit SIPs by April 2015, which 15 of the 16 failed to do. Accordingly, by October 2015, EPA had the statutory duty to “make the requisite findings of failure to submit” as to those states. EPA did not do so, which spawned the current litigation. Id.

         Plaintiff first contacted EPA on October 14, 2015 and provided “notice that Sierra Club was planning on sending EPA a Notice of Intent [L]etter.” Id. The next day, Plaintiff submitted the Notice of Intent Letter, which started a 60-day statutory waiting period before Plaintiff could file a lawsuit against EPA under the citizen-suit provisions of the CAA. After the 60-day period expired, and with no action taken by EPA, Plaintiff filed its Complaint on December 29, 2015. Id. at 4.

         The initiation of the lawsuit was followed by a series of telephone and email conversations between Plaintiff's counsel and attorneys from the Department of Justice (“DOJ”), acting as counsel for EPA. First, on January 8, 2016, EPA counsel contacted Plaintiff's counsel “to introduce himself . . . [and] indicated that he had not yet had an initial conversation with EPA concerning the case, but planned on having this consultation soon.” Fee Mot., Attach. 2, Fabish Decl. at 3. The time entry associated with this call describes it as “concerning [the] case and potential resolution.” Fee Mot., Attach. 1, Amirpashaie Decl., Ex. 4. Second, on January 22, 2016, EPA counsel again contacted Plaintiff's counsel, and stated that EPA “would like to speak candidly with you about this matter, potentially to explore whether there is a possibility of a negotiated settlement.” Fee Mot., Attach. 2, Fabish Decl., Ex. 3. That “candid” conversation occurred on February 16, 2016, after which “Sierra Club effectively ceased legal work on the substance of this case, in expectation of EPA actions.” Fee Mot. at 5. Then, on March 10, 2016, E P A “signed a final rule fulfilling the nondiscretionary duty that Sierra Club sought to enforce[, ]” effectively mooting the lawsuit, and leading to the Fee Motion. Opp'n Mem at 3.

         In addition to drafting the Notice of Intent Letter and the Complaint, and engaging in the various conversations just described, Plaintiff's counsel also worked on a summary judgment motion and several written declarations in support of Plaintiff's Article III standing that, due to E PA 's ameliorative actions, ultimately remained unfiled. Fee Mot. at 5, 11. According to the time entries before the Court, Plaintiff's counsel began work on the summary judgment motion on December 7, 2015, and continued to work on the motion until January 22, 2016. Fee Mot., Attach. 1, Amirpashaie Decl., Ex. 4. Similarly, work on the unfiled standing declarations extended from November 16, 2015 through January 22, 2016, much of which was delegated to Plaintiff's legal support staff. Id.


         Under the Clean Air Act, the Court “may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such award is appropriate.” 42 U.S.C. § 7604(d). “In order to award attorney fees under the Clean Air Act, a court must engage in a two-step inquiry, determining first whether the party seeking fees is the prevailing party, and second, whether the requested fees are reasonable.” Sierra Club v. Jackson, 926 F.Supp.2d 341, 346 (D.D.C. 2013) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The Court determines a reasonable fee by “multiplying a reasonable [hourly] rate by the reasonable number of hours, ” a process known as the “lodestar method.” New Jersey v. E.P.A., 703 F.3d 110, 113 (D.C. Cir. 2012). In determining the fee award, the Court must endeavour to exclude hours which are “excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 424. Ultimately, the movant bears “the burden of demonstrating the reasonableness of each element of their fee request.” Am. Petroleum Inst. v. U.S. E.P.A., 72 F.3d 907, 912 (D.C. Cir. 1996).


         To succeed on the Fee Motion, Plaintiff must establish: (i) that it was the prevailing party in this action; (ii) that its requested hourly rates are reasonable; and (iii) that it seeks compensation for a reasonable number of hours. Here, EPA concedes that Plaintiff was a prevailing party and that Plaintiff's requested hourly rates are reasonable, and the Court agrees. Opp'n Mem. at 5 (“EPA does not dispute that some award of fees is ‘appropriate' within the meaning of 42 U.S.C. § 7604(d) of the Clean Air Act. EPA also does not dispute the reasonableness of the hourly rates used to calculate Sierra Club's fee claim.”). Plaintiff's requested hourly rates of $386/hour for attorney Zachary Fabish and $325/hour for attorney Kathryn Amirpashaie are based on the “commonly accepted” Laffey Matrix published by the United States Attorney's Office for the District of Columbia. Wesby v. D.C., 189 F.Supp.3d 31, 36 (D.D.C. 2016). Plaintiff also plainly achieved the benefit it sought in bringing this lawsuit. See Envtl. Def. Fund, Inc. v. E.P.A., 716 F.2d 915, 919 (D.C. Cir. 1983) (finding that plaintiff was a prevailing party because EPA took the administrative action plaintiff sought, which was followed shortly by joint dismissal of the lawsuit).

         Consequently, the only issue for the Court to decide is whether Plaintiff seeks compensation for a reasonable number of hours. That dispute concerns four areas of work undertaken by Plaintiff's counsel in relation to the litigation: (i) an unfiled motion for summary judgment; (ii) unfiled standing declarations; (iii) work related to the Notice of Intent Letter, Complaint, motion to dismiss, and communications with EPA counsel; and (iv) work on the Fee Motion and Reply Memorandum. With respect to the first two categories, EPA contends that the work was unnecessary and therefore should not be compensated. Opp'n Mem. at 6-9. With respect to the third category, E P A concedes that the work was necessary, but contends that the number of hours expended by Plaintiff's counsel was excessive. Id. at 9-12. With respect to the final category, EPA contends ...

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