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Ohio Valley Environmental Coalition, Inc. v. Wheeler

United States District Court, S.D. West Virginia, Huntington Division

June 4, 2019

ANDREW WHEELER, Administrator, United States Environmental Protection Agency and CECIL RODRIGUES, Regional Administrator, United States Environmental Protection Agency, Region III, Defendants.



         Pending before the Court is Plaintiffs', Ohio Valley Environmental Coalition, Inc., Sierra Club, West Virginia Highlands Conservancy, and Virginia Rivers Coalition, Motion for an Award of Attorney's Fees and Expenses. ECF No. 114. For the foregoing reasons, the Court GRANTS, in part, insofar as Plaintiffs are awarded attorney's fees and costs, and HOLDS IN ABEYANCE, in part, as to the calculation of those fees and costs.

         I. BACKGROUND

         Plaintiffs brought suit against the Environmental Protection Agency (“EPA”), claiming it had neglected its duty pursuant to the Clean Water Act (“CWA”) to address the West Virginia Department of Environmental Protection's (“WVDEP”) refusal to produce Total Maximum Daily Load (“TMDL”) limits for streams designated biologically impaired.

         As more fully set out in the Court's February 14, 2017 Memorandum Opinion and Order, (ECF No. 87), the CWA requires states to develop water quality standards (“WQS”), identify waterbodies that are “impaired” under the WQS, and create a TMDL for each offending body of water. 33 U.S.C. § 1313(d)(1)(C); 40 C.F.R. § 130.7(c)(1). TMDLs “establish[ ] the maximum daily discharge of pollutants into a waterway” from all sources. Hayes v. Whitman, 264 F.3d 1017, 1021 (10th Cir. 2001) (citing Scott v. City of Hammond, 741 F.2d 992, 996 (7th Cir. 1984)). The state must then submit those TMDLs to EPA for approval within thirty days. Id. If EPA disapproves a TMDL, EPA must then produce that TMDL within thirty days of disapproval. 33 U.S.C. § 1313(d)(2). Where a “state's actions clearly and unambiguously express a decision to submit no TMDL for a particular impaired waterbody, ” Hayes, 264 F.3d at 1024, known as a “constructive submission, ” EPA must approve or disapprove of the absence within thirty days of the state's failure. § 1313(d)(2). Were it to disapprove the missing TMDL, meaning EPA believed a TMDL to be necessary, EPA is obliged to produce the TMDL within thirty days. Id. If it approves the constructive submission, EPA need not take any further action.

         In 2012, the West Virginia Legislature passed legislation to require WVDEP to develop a new methodology to determine which bodies of water are considered biologically impaired pursuant to the state's narrative WQS. Letter from Randy C. Huffman, Cabinet Sec'y, WVDEP, to Jon M. Capacasa, Dir., Water Prot. Div., EPA Region III (Apr. 6, 2012), J.A. 3298 [hereinafter Huffman Letter]. WVDEP interpreted the 2012 legislation, known as SB 562, to prohibit WVDEP from developing TMDLs to address streams that were deemed to be biologically impaired as indicated by a failing West Virginia Stream Condition Index (“WVSCI”) score until it could develop a new methodology. Huffman Letter, J.A. 3298. EPA, conversely, does not interpret SB 562 to preclude WVDEP from developing TMDLs for biologically impaired streams. Draft TMDL for Selected Streams in the Monongahela River Watershed, W.Va. EPA Comments-Oct. 24, 2013, J.A. 188.

         Plaintiffs filed claims against EPA pursuant to the citizen suit provision of the CWA, 33 U.S.C. § 1365(a)(2), arguing that WVDEP's refusal to develop TMDLs for biological impairment until it developed a new testing methodology was a constructive submission which triggered EPA's duty to approve or disapprove of the submission of no TMDLs for biologically impaired bodies of water. Second Am. Compl., ECF No. 78. The Court agreed and granted summary judgment in favor of Plaintiffs. Mem. Op. & Order, ECF No. 87. The Court ordered EPA to “approve or disapprove WVDEP's constructive submission of no TMDLs for all biologically impaired bodies of water for which no TMDL has been developed to address that impairment within thirty days.” Id. EPA appealed and the Fourth Circuit denied EPA's motion for stay pending appeal on May 30, 2017. Order of 4th Cir., p. 1, ECF No. 106.

         On June 13, 2017, EPA acted under § 303(d)(2) of the CWA, (33 U.S.C. § 1313(d), and conditionally approved WVDEP's constructive submission of no TMDLs. EPA Decision Part One, at 3, ECF No. 107-1. In its decision, EPA stated it would “not take the action required by the district court (to approve or disapprove 573 “no TMDLs”) if it not had been ordered to do so.” Id. The “most significant” basis for accepting the protracted delay on the part of WVDEP was the Memorandum of Agreement (“MOA”) between EPA and WVDEP, which established a schedule to develop TMDLs “regardless of the availability of a new biological assessment methodology.” Id. The MOA was an outgrowth of Plaintiffs' suit, as it was “[i]n response to [this C]ourt's finding that WVDEP has ‘constructively submitted' ‘no' TMDLs addressing the biological impairment in the Attachment 1 waterbodies, EPA worked with WVDEP to establish through an MOA a reasonable and expeditious schedule for the development of the TMDLs.” Id. at 6.

         On appeal, the Fourth Circuit reversed the order of this Court and found that even if the doctrine of constructive submission applied, [1] it was not satisfied here. Op. of 4th Cir., at 12, ECF No. 108. The circuit court's rationale was founded on WVDEP's “good-faith efforts to comply with SB 562, and because West Virginia has a credible plan in concert with the EPA to produce ionic toxicity TMDLs[.]” Id. (emphasis in original). The credible plan referenced therein is the MOA, which EPA further assured it will continue to implement beyond its appeal in this matter. Id. at 11-12; see also Id. at n. 3 (memorializing EPA's affirmation the MOA was the basis for EPA's conditional approval, which in turn was an outgrowth of this Court's order). After denying Plaintiffs' petition for panel rehearing, the Fourth Circuit issued its mandate on August 27, 2018. ECF No. 113. Plaintiffs timely filed their motion for attorney's fees and costs. ECF No. 114.


         Under the CWA, a citizen can sue “where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary[.]” 33 U.S.C. § 1365(a)(2). A court “may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate.” 33 U.S.C. § 1365(d).


         Plaintiffs argue they are “substantially prevailing” parties within the meaning of the CWA and an award of fees and costs are appropriate here. Mem. Supp. Mot. Att'y Fees, ECF No. 115. Defendants contest that Plaintiffs must have received an enforceable judgment or court-ordered decree, as required by the United States Supreme Court in Buckhannon. Resp. to Mot. Att'y Fees, p. 1, ECF No. 117 (citing Buckhannon Board & Care Home, Inc. v. W.Va. Dep't of Health & Hum. Res., 532 U.S. 598 (2001)). Defendants further claim that even if Buckhannon is not applicable, fees are not “appropriate” in this case. Id. at 16.

         A. Categories of Fee-Shifting Statutes

         Under the “American Rule, ” “[e]ach litigant pays his own attorney's fees, win or lose, unless a statute or contract provides otherwise.” Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 253 (2010) (citing Ruckelshaus v. Sierra Club, 463 U.S. 680, 683 (1983)). The Supreme Court has clarified that there are, at least, three categories for fee-shifting provisions.

Statutory changes to this [American] rule take various forms. Most fee-shifting provisions permit a court to award attorney's fees only to a “prevailing party.” Others permit a “substantially prevailing” party or a “successful” litigant to obtain fees. Still others authorize district courts to award attorney's fees where ...

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