dissenting in part:
I agree that Sierra Club and the Environmental Defense Fund are entitled to some attorneys’ fees despite their lack of success on the merits. I also agree with the court’s calculation of hours reasonably expended and hourly rates. However, when a litigant loses on every issue in the case, as here, I think the “appropriate” standard under section 307(f) of the Clean Air Act calls for some reduction in the lodestar amount. Accordingly, I dissent from the portion of the majority opinion discussing adjustments to the lodestar.
Hours Rate Lodestar
William Butler 121 $100/hr($110/hr) $12,100($13,310)
Robert Rauch 123 $75/hr($75/hr) $ 9,225($ 9,225)
Larry Corcoran 114 $50/hr($55/hr) $ 5,700($ 6,270)
David Lennett 40 $40/hr($55/hr) $ 1,600($ 2,200)
Legal Intern * 75 $20/hr(0) $ 1,500(0)
Totals $30,125($31,005)
*979In Copeland v. Marshall, 205 U.S.App. D.C. 390, 641 F.2d 880 (1980) (en banc), this court stated that adjustments to the lodestar “may be upward or downward,” noting “[a]n upward adjustment for quality is appropriate only when the attorney performed exceptionally well, or obtained an exceptional result for the client.” Id. at 404, 641 F.2d at 894. Considering result as part of the quality assessment, it is hard to imagine a better case for downward adjustment than this one. If counsel were private practitioners their clients might well complain that they could have lost the case for less money.
This argument applies with special force to statutes such as section 307(f), which permit awards of attorneys’ fees to non-prevailing parties where “appropriate”. One purpose of awarding fees to non-prevailing parties is to shift the costs of a private lawsuit to the “taxpaying public, which receives the benefits of [the] litigation.” Natural Resources Defense Council, Inc. v. EPA, 484 F.2d 1331, 1338 (1st Cir. 1973), cited in H.Rep.No.95-294, 95th Cong., 1st Sess. 337, U.S.Code Cong. & Admin.News 1977, p. 1077. Reducing the award in this case would recognize the diminished value of a losing lawsuit to the public.
This court has refused to reduce the lodestar to account for lack of success when a party lost on only one of three issues. See Environmental Defense Fund v. EPA, 217 U.S.App.D.C. 189, 672 F.2d 42 (1982). Here, however, the petitioners lost on every issue; they batted zero. If downward adjustments to the lodestar are ever to be made as Copeland v. Marshall suggests, this is an “appropriate” place to start.
EDF did not claim any hours for the work of a legal intern in its amended motion. (EDF figures inside parentheses; government figures outside parentheses.)