Public Employees for Environmental Responsibility v. Cruickshank

          MEMORANDUM OPINION

          REGGIE B. WALTON UNITED STATES DISTRICT JUDGE

         This consolidated case comprises four sets of interrelated claims concerning several administrative decisions made by federal agencies approving the construction of various aspects of an offshore wind energy project in Nantucket Sound (the “Cape Wind project”). Currently pending before the Court is plaintiffs Public Employees for Environmental Responsibility (“PEER”) and Alliance to Protect Nantucket Sound's (the “Alliance”) (collectively, the “plaintiffs”) Motion for an Award of Attorneys' Fees and Costs by Plaintiffs Public Employees for Environmental Responsibility and Alliance to Protect Nantucket Sound (“Pls.' Mot.”). Upon careful consideration of the parties' submissions, ^[2] the Court concludes for the following reasons that it must grant in part and deny in part the plaintiffs' motion for attorneys' fees.

         I. BACKGROUND

         The Court has previously set forth the factual background of this case, see Pub. Emps. for Envtl. Responsibility v. Beaudreau, 25 F.Supp.3d 67, 85-93 (D.D.C. 2014) (Walton, J.), and therefore will not recite it again here. The Court will, however, briefly summarize the procedural posture of this case relevant to the claims on which the plaintiffs seek attorneys' fees, which is pertinent to the resolution of the pending motion.

         A. Case Background

         The plaintiffs, and others, brought this civil action (“Civil Action No. 10-1067”), against Walter Cruickshank, the Director of the United States Bureau of Ocean Energy Management (“BOEM”); David Bernhardt, the Secretary of the United States Department of the Interior (the “Department of the Interior”); Aurelia Skipwith, the Director of the United States Fish and Wildlife Service (“FWS”); Wilbur Ross, the Secretary of the United States Department of Commerce; Chris Oliver, the Assistant Administrator of the National Marine Fisheries Service (“NMFS”); and Lieutenant General Todd T. Semonite, the United States Army Chief of Engineers and Commanding General of the United States Army Corps of Engineers (the “Corps of Engineers”), ^[3] alleging violations of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706 (2018); the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-1544 (2018); the Migratory Bird Treaty Act, 16 U.S.C. § 70; and the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370h (2018). See Pls.' Compl. ¶¶ 1, 97-111. The Alliance, and others, separately brought a civil action (“Civil Action No. 10-1079”) against Director Cruickshank; the Bureau of Ocean Energy Management (“BOEM”); Secretary Bernhardt; the Department of the Interior; Lieutenant General Semonite; Admiral Karl L. Schulz, the Commandment of the United States Coast Guard (the “Coast Guard”);^[4] and the Coast Guard, ^[5]alleging violations of the APA; the NEPA; the Energy Policy Act of 2005, Pub. L. No. 109-58, § 388(a), 119 Stat. 594, 744-46 (codified at 43 U.S.C. § 1337(p) (2018)) (amending the Shelf Lands Act); the Coast Guard and Maritime Transportation Act of 2006, Pub. L. No. 109-241, 120 Stat. 516; the National Historic Preservation Act (the “Preservation Act”), 16 U.S.C. § 470f; the Clean Water Act, 33 U.S.C. § 1344 (2018); and the Rivers and Harbors Act, 33 U.S.C. § 403 (2018). See Alliance Compl. ¶¶ 1, 151-93.

         The Court consolidated Civil Action No. 10-1067, Civil Action No. 10-1079, and two other related cases, Civil Action Nos. 10-1073 and 10-1238, on October 25, 2010. See Min. Order (Oct. 25, 2010). The parties subsequently cross-moved for summary judgment, ^[6] and on March 14, 2014, the Court granted partial summary judgment to the plaintiffs and remanded certain claims to the appropriate agencies (the “initial remand”). After the initial remand proceedings were completed on July 2, 2014, see 1st Remand Not. at 1, the plaintiffs filed their Supplemental Complaint alleging new claims regarding inadequacies in the initial remand proceedings (the “supplemental claims”). The parties again cross-moved for summary judgment, and, on November 18, 2014, the Court granted summary judgment to the federal defendants on the plaintiffs' Supplemental Complaint, see Order at 6 (Nov. 18, 2014), ECF No. 415. The plaintiffs then appealed that decision to the District of Columbia Circuit, resulting in the Circuit's partial reversal of this Court's judgment with respect to two of the plaintiffs' claims and remand of the case to this Court. See Pub. Emps. for Envtl. Responsibility v. Hopper, 827 F.3d 1077, 1090 (D.C. Cir. 2016). In response to the Circuit's decision, the Court again remanded certain claims to the applicable agency (the “second remand”). See Order at 2-3 (Oct. 27, 2016), ECF No. 431. After the second remand proceedings were completed, the Court ordered that “this case shall be dismissed with prejudice upon the resolution of the plaintiffs' two previously filed motions for attorneys' fees and costs, ” Order at 2 (Nov. 2, 2017), ECF No. 446 (capitalization removed), and instructed that the attorneys' fees briefing should “address[] only the threshold questions regarding the plaintiffs' entitlement to attorneys' fees and litigation expenses [under the citizen-suit provision of the ESA and the Equal Access to Justice Act (‘EAJA')], reserving any arguments pertaining to the reasonableness of the amounts requested for future briefing, if necessary, ” Order at 3 (Mar. 22, 2018), ECF No. 451. In accordance with the Court's Order, the plaintiffs submitted their joint motion for attorneys' fees, see generally Pls.' Mot., which is the subject of this Memorandum Opinion.

         B. The Claims on Which the Plaintiffs Seek Attorneys' Fees

         1. The Plaintiffs' ESA Claims Against the FWS

         On March 14, 2014, the Court “grant[ed] summary judgment to the[] plaintiffs on their claims that the FWS violated the ESA by failing to make an independent determination regarding whether the feathering operational adjustment was a reasonable and prudent measure” (the “first ESA claim against the FWS”) and “remanded [the claim] to the FWS for it to issue reasonable and prudent measures in accordance with this Court's Memorandum Opinion.” Order at 2 (Mar. 14, 2014), ECF No. 370 (capitalization removed). On remand, the FWS issued an amended incidental take statement^[7] “provid[ing] [its] independent evaluation, ” and concluding that “[t]he final [reasonable and prudent measures] have not changed as a result of [its] analysis on remand.” 1st Remand Not., Exhibit (“Ex.”) 5 (Letter from Paul R. Phifer, Assistant Regional Director, Ecological Services, FWS, to Michelle Morin, Chief, Environmental Branch for Renewable Energy, Environmental Division, BOEM (June 27, 2014) (“1st Phifer Ltr.”)) at 2.

         After the FWS completed its initial remand proceedings, the plaintiffs filed their Supplemental Complaint, alleging, inter alia, that the amended incidental take statement completed by the FWS on remand did not comply with the ESA because it failed to consider an economic report submitted by the plaintiffs (the “second ESA claim against the FWS”). Pls.' Supp. Compl. ¶ 19. The Court dismissed the plaintiffs' second ESA claim against the FWS on the ground that “the plaintiffs admit[ted] that the Court ha[d] previously considered and rejected th[is] claim[].” Order at 6 (Nov. 18, 2014), ECF No. 415. The Court thereafter entered a final Judgment on December 15, 2014, see generally Judgment (Dec. 15, 2014), and the plaintiffs appealed. On appeal, the Circuit “reverse[d] th[is] [ ] Court's judgment . . . that the [FWS's] [initial remand actions] complied with the [ESA], ” concluding that the FWS's failure to consider the scientific and economic data submitted by the plaintiffs during the FWS's initial remand proceedings in 2014, when it did consider its own economist's 2014 analysis on remand, was error, because by relying on its economist's 2014 analysis, “the [FWS] reopened the record and was required to consider [the] plaintiffs' submissions.” Pub. Emps. for Envtl. Responsibility, 827 F.3d at 1090. In response to the Circuit's decision, this Court remanded the FWS's amended incidental take statement “to the FWS to take appropriate actions consistent with the Circuit's opinion.” Order at 1 (Oct. 27, 2016), ECF No. 431.

         In response to this second remand, the FWS issued a second amended incidental take statement stating that the FWS's “further independent examination of the best scientific and commercial data available, as well as the various submissions received, [ ] confirmed [its] prior conclusion that the originally proposed feathering measure . . . is not a reasonable and prudent measure[] . . . necessary or appropriate to minimize the anticipated incidental takes.” 2d Remand Not., Ex. 1 (Letter from Paul F. Phifer, Assistant Regional Director, Ecological Services, FWS, to Michelle Morin, Chief, Environmental Branch for Renewable Energy, BOEM (Aug. 31, 2017) (“2d Phifer Ltr.”)) at 2 (internal quotation marks omitted). The plaintiffs now seek fees on their first and second ESA claims against the FWS (collectively, the “ESA claims against the FWS”). See Pls.' Mem. at 27-28.

         2. The Plaintiffs' ESA Claim Against the NMFS

         On March 14, 2014, the Court “grant[ed] summary judgment to the plaintiffs on their claims that the NMFS violated the ESA by failing to issue an incidental take statement for the take of North American right whales” (the “ESA claim against the NMFS”) and “remanded [the claim] to the NMFS for it to formulate and issue an incidental take statement in accordance with the Court's [March 14, 2014] Memorandum Opinion.” Order at 2-3 (Mar. 14, 2014), ECF No. 370 (capitalization removed). On remand, the NMFS prepared an amended incidental take statement, see generally 1st Remand Not., Ex. 2 (Incidental Take Statement - Amended May 21, 2014), “indicat[ing] that [the NMFS] d[id] not anticipate any incidental take of North Atlantic right whales, fin whales[, ] and humpback whales and that the amount or extent of incidental take [was] set at zero, ” id., Ex. 1 (Letter from John K. Bullard, Regional Administrator, NMFS, to Michelle Morin, Chief, Environmental Branch for Renewable Energy, BOEM (May 21, 2014) (“Bullard Ltr.”)) at 1. The plaintiffs now seek fees on their ESA claim against the NMFS. See Pls.' Mem. at 25-26.

         3. The Alliance's NEPA Claim Against the BOEM

         On March 14, 2014, the Court rejected the Alliance's “argu[ment] that the BOEM violated the Shelf Lands Act by approving Cape Wind's Construction and Operations Plan without first receiving certain geotechnical and geophysical studies from Cape Wind” (the “NEPA claim against the BOEM”) and granted summary judgment to the federal defendants on this claim. Pub. Emps. for Envtl. Responsibility, 25 F.Supp.3d at 105-06. Following the completion of the initial remand proceedings by the FWS and the NMFS, the Court entered a final judgment against the Alliance on its NEPA claim against the BOEM, cf. Judgment at 3 (Dec. 15, 2014) (denying summary judgment to the plaintiffs on all claims except for the plaintiffs' first ESA claim against the FWS and the ESA claim against the NMFS). On appeal, the Alliance “argue[d] that the [BOEM] violated the [NEPA] by relying on inadequate geophysical and geotechnical surveys.” Pub. Emps. for Envtl. Responsibility, 827 F.3d at 1081 (citation and internal quotation marks omitted). The Circuit concluded that the BOEM violated the NEPA, see id. at 1083, but explained that “that does not necessary mean that the [Cape Wind] project must be halted or that Cape Wind must redo the regulatory approval process.” Id. at 1083-84. The Circuit “vacat[ed] the impact statement and [ ] require[ed] the [BOEM] to supplement it with geological surveys before Cape Wind may begin construction, ” but declined to “vacate Cape Wind's release or other regulatory approvals based on this NEPA violation.” Id. at 1084. On remand to this Court from the Circuit, the Court “remanded [the BOEM's environmental impact statement] to [the] BOEM to take appropriate actions consistent with the Circuit's [o]pinion.” Order at 3 (Oct. 27, 2016), ECF No. 431 (capitalization removed).

         On remand from this Court, the BOEM issued a supplemental environmental impact statement, which incorporated a “careful and thorough analysis of the seafloor and its ability to support wind turbine generators, ” 3d Remand Not., Ex. 1 (Record of Decision, Cape Wind Energy Project, Horseshoe Shoal, Nantucket Sound (“BOEM Record of Decision”)) at 1, as well as a record of decision “affirm[ing] [the] BOEM's issuance of the existing lease, ” based on the “careful and thorough analysis” contained in the BOEM's supplemental environmental impact statement, ” id., Ex. 1 (BOEM Record of Decision) at 1. The Alliance now seeks attorneys' fees “in connection with its NEPA victory in the [Circuit].” Pls.' Mem. at 28.

         II. STANDARDS OF REVIEW

         A. Motion for Attorneys' Fees Pursuant to the ESA

         The ESA provides that the Court may “award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the [C]ourt determines such an award is appropriate.” 16 U.S.C. § 1540(g)(4). The appropriateness of attorney fee awards in citizen suits brought under the ESA and other “appropriate” fee-shifting statutes is measured by whether a party “achiev[ed] some success, even if not major success.” Ruckelshaus v. Sierra Club, 463 U.S. 680, 688 (1983); see also Sierra Club v. Envtl. Prot. Agency, 322 F.3d 718, 727 (D.C. Cir. 2003) (awarding fees where the “[p]etitioners unquestionably received some of the relief they sought”). Hours expended on unsuccessful claims are not compensable, to the extent that they are unrelated to the plaintiff's successful claims. See Hensley v. Eckerhart, 461 U.S. 424, 435 (1983); Sierra Club v. Envtl. Prot. Agency, 769 F.2d 796, 801 (D.C. Cir. 1985).

         B. Motion for Attorneys' Fees Pursuant to the EAJA

         The EAJA provides, in relevant part:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs . . . incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A) (2018).^[8] Thus, to award attorneys' fees under the EAJA, the Court must find that “(1) [the plaintiff] is the prevailing party; (2) [the plaintiff] has incurred [reasonable] fees or expenses; (3) the position of the United States in the action was not substantially justified; and (4) no special circumstances make an award of fees unjust.” Brooks v. Berryhill, Civ. Action No. 15-00436 (CKK/GMH), 2019 WL 120767, at *3 (D.D.C. Jan. 7, 2019). Once the plaintiff establishes that it is the prevailing party under the EAJA, the government has the burden of showing that its position was “substantially justified” or that special circumstances make the award unjust. See Taucher v. Brown-Hruska, 396 F.3d 1168, 1173 (D.C. Cir. 2005). Finally, if the Court concludes that an award of attorneys' fees and costs is warranted, it is incumbent upon the plaintiff to establish that the fees and costs it is seeking are reasonable. See Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 969-70 (D.C. Cir. 2004) (“[C]ourts properly have required prevailing attorneys to justify the reasonableness of the requested rate or rates.” (quoting Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984)).

         III. ANALYSIS

         As stated above, the plaintiffs seek attorneys' fees on three sets of claims. First, the plaintiffs seek attorneys' fees on their ESA claims against the FWS pursuant to the citizen-suit provision of the ESA, or alternatively, pursuant to the EAJA. See Pls.' Mem. at 27-28. Second, they seek attorneys' fees on their ESA claim against the NMFS pursuant to the citizen-suit provision of the ESA, or alternatively, pursuant to the EAJA. See id. at 26-28. Finally, the Alliance seeks attorneys' fees on its NEPA claim against the BOEM pursuant to the EAJA. See id. at 28-32. The Court will separately address the plaintiffs' entitlement to attorneys' fees on their ESA claims and the Alliance's entitlement to attorneys' fees on its NEPA claim.

         A. The Plaintiffs' ESA Claims

         The plaintiffs seek attorneys' fees on their ESA claims pursuant to the ESA, or alternatively, pursuant to the EAJA. See id. at 28. Before determining whether the plaintiffs are in fact entitled to attorneys' fees on their ESA claims, the Court must first determine whether their entitlement to fees on these claims should be evaluated under the ESA or EAJA framework.

         1. The ...