United States District Court, District of Columbia
PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSBILITY, et al., Plaintiffs,
DR. WALTER CRUICKSHANK, et al., Defendants, CAPE WIND ASSOCIATES, LLC, Intervenor. ALLIANCE TO PROTECT NANTUCKET SOUND, et al., Plaintiffs,
DAVID BERNHARDT, CAPE WIND ASSOCIATES, LLC, Intervenor. TOWN OF BARNSTABLE, MASSACHUSETTS, Plaintiff,
DAVID BERNHARDT, et al., Defendants, CAPE WIND ASSOCIATES, LLC, Intervenor. THE WAMPANOAG TRIBE OF GAY HEAD AQUINNAH Plaintiff,
DR. WALTER CRUICKSHANK, et al., Defendants, CAPE WIND ASSOCIATES, LLC, Intervenor.
B. WALTON UNITED STATES DISTRICT JUDGE
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,
Court concludes for the following reasons that it must grant
in part and deny in part the plaintiffs' motion for
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.
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”),
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”); and the Coast Guard,
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.
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,  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
The Claims on Which the Plaintiffs Seek Attorneys'
The Plaintiffs' ESA Claims Against the FWS
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 “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.
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.
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.
The Plaintiffs' ESA Claim Against the NMFS
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.
The Alliance's NEPA Claim Against the BOEM
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
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.
STANDARDS OF REVIEW
Motion for Attorneys' Fees Pursuant to 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).
Motion for Attorneys' Fees Pursuant to the EAJA
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
28 U.S.C. § 2412(d)(1)(A) (2018). 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)).
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
The Plaintiffs' ESA Claims
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.