Sierra Club v. John Hankinson

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
December 5, 2003
No. 03-11263 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 94-02501-CV-MHS-1

SIERRA CLUB,

Plaintiff,

GEORGIA ENVIRONMENTAL ORGANIZATION, INC.,
COOSA RIVER BASIN INITIATIVE, INC., et al.,

Plaintiffs-Appellees,

versus

JOHN HANKINSON, Regional Administrator, et al.,

Defendants,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 5, 2003)
Before ANDERSON, BARKETT and RONEY, Circuit Judges.

BARKETT, Circuit Judge:

The United States Environmental Protection Agency (EPA) appeals from

the district court’s award of $139,963.57 in attorneys’ fees to the Georgia

Environmental Organization and other environmental association appellees for

monitoring EPA compliance with a 1997 consent decree. The EPA argues that the

district court abused its discretion by awarding fees for work that allegedly

exceeded the scope of the consent decree and by allowing compensation for expert

witnesses who assisted in monitoring compliance with the consent decree but who

did not testify in any proceeding. We affirm.

This appeal arises out of protracted litigation to force the state of Georgia

and the EPA to comply with their obligations under the Clean Water Act (CWA),

33 U.S.C. § 1251 et seq. Under the CWA, every state must categorize the

designated uses of each body of water in its territory and set appropriate water

quality standards based upon those uses. 33 U.S.C. § 1313(a)-(c). In addition,

every discharger of a pollutant from a discrete, “point” source must obtain a

National Pollutant Discharge Elimination System (NPDES) permit from the EPA

(or an approved state agency) that specifies the exact level of discharge permitted.

Id. at § 1342. In some areas, however, pollution from diffuse, “non-point” sources

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such as agricultural runoff renders water quality standards unattainable through

point-based NPDES permits alone. In such a case, the state must assemble a list of

these “water quality limited segments” (WQLS). Id. at § 1313(d). For each body

of water on a WQLS list, the state must establish a Total Maximum Daily Load

(TMDL), which specifies the highest level of each pollutant that may pass through

each day. States are expected to implement TMDLs through a combination of

appropriately stringent point source permits and other measures aimed at non-

point sources.

The EPA is responsible for approving WQLS lists and TMDLs generated by

the states. Moreover, if a state fails to fulfill its duty under the CWA, the EPA is

also responsible for initial generation of the lists and standards. See also Sierra

Club v. Meiburg, 296 F.3d 1021, 1024-27 (11th Cir. 2002) (describing the CWA

in more detail).

Georgia ignored its obligation to produce a WQLS list for thirteen years

after the 1979 statutory deadline for submission. Then, in 1992, Georgia produced

only a partial list. Sierra Club v. Hankinson, 939 F. Supp. 865, 868 (N.D. Ga.

1996). Two years later, in light of Georgia’s failure to comply adequately with the

requirements of the CWA, the Sierra Club and other environmental organizations

filed suit under 33 U.S.C. § 1365(a) to force the EPA to update the WQLS list and

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issue TMDLs. The district court granted summary judgment and ordered the EPA

to issue complete TMDLs on a relatively strict five-year schedule. Id. at 873.

While the government appeal was pending, the parties entered into a consent

decree requiring that the EPA review and update Georgia’s WQLS list. Order of

Dec. 17, 1996. The following year, the parties signed a second consent decree

setting a timetable for the EPA to establish TMDLs for each body of water on

Georgia’s (biannually updated) WQLS list. Order of Oct. 16, 1997.

The EPA submitted the first list of proposed TMDLs for 124 water

segments along with the consent decree, but two years later, Georgia had yet to

incorporate them into its water management plans, and neither the state nor the

EPA had moved to implement them in other ways. Meiburg, 296 F.3d at 1028.

The Sierra Club moved the district court to reopen the decree and compel further

action, and Georgia promised to develop implementation plans within nine

months. Once Georgia’s plans had been issued, the EPA moved to have the Sierra

Club motion dismissed as moot, but the district court ruled that implementation

plans formed part of the consent decree and that the EPA therefore had an

obligation to ensure that the plans were adequate. Id. In Sierra Club v. Meiburg,

this Court rejected the district court’s interpretation and held that implementation

plans did not fall within the terms of the consent decree. Id. at 1030-32.

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 The plaintiffs also requested payment of costs and attorneys’ fees under 33

U.S.C. § 1365(d) for their work in monitoring EPA compliance with the consent

decree. In light of this Court’s ruling in Meiburg, the district court struck all

requests for fees relating to TMDL implementation. The court also eliminated

time spent on redundant work, general background research, unsuccessful

motions, and certain specific litigation issues. The district court then awarded

$139,963.57 to the remaining environmental plaintiffs,1 which included

$30,425.61 for expenses associated with expert witness Barry Sulkin. The EPA

timely appealed.

We review a district court award of attorneys’ fees for abuse of discretion.

ACLU v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999). A district court has “wide

discretion” in exercising its judgment on the appropriate fee level, though the

court must articulate the decisions it makes, give principled reasons for those

decisions, and show the specific fee calculations. Norman v. Housing Authority

of Montgomery, 836 F.2d 1292, 1304 (11th Cir. 1988). A district court abuses its

discretion when it fails to apply the appropriate legal standard, follows improper

procedures, or relies upon clearly erroneous findings of fact. ACLU, 168 F.3d at

427.

1
The Sierra Club settled its fee dispute separately and is not part of this appeal.

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 A district court may award fees for post-judgment monitoring of a consent

decree. Penn. v. Del. Valley Citizens’ Council, 478 U.S. 546, 557-61 (1986).

However, such work must be relevant to the rights established by the decree and

related to the terms of the judgment. Brooks v. Ga. State Bd. of Elections, 997

F.2d 857, 864 (11th Cir. 1993).

The EPA argues that the district court awarded fees for work beyond what

was reasonably necessary to monitor compliance with the consent decree. Relying

upon our decision in Meiburg, the EPA claims that the consent decree merely

obligated the agency to establish TMDLs in some form. Although the EPA

concedes that the plaintiffs may recover the costs necessary to determine whether

the agency promulgated standards, the EPA insists that the plaintiffs did not have

to examine the standards in any detail. According to the agency, “[o]ne does not

have to review the content of the TMDLs and assess their validity to decide if

EPA fulfilled its obligation to establish them as required by the decree.”2

We do not agree with such a crabbed reading of our prior decision or of the

consent decree itself. In Meiburg, we simply noted that implementation plans

2
Although at one point during oral argument counsel suggested that the EPA only
objected to excessive time spent examining the content of the TMDLs, the agency briefs
repeatedly stress only that TMDL content and compliance with relevant standards fell outside of
the consent decree. We decline to entertain the excessive time argument suggested at oral
argument.

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were not mentioned within the definition of TMDL, within the list of EPA

obligations, or anywhere within the consent decree. 296 F.3d at 1030. As a result,

by reading an implementation requirement into the consent decree, the district

court had “changed the legal relationship of the parties” and in effect modified the

decree. Id. at 1032.3

By contrast, the plaintiffs’ review of the content of the TMDLs and the

WQLS lists relates to both specific language in the consent decree and the

definitions incorporated by reference. The decree defines a relatively rigid

timetable for the EPA to establish TMDLs over a period of some six years, and

each TMDL “shall be established at a level necessary to implement the applicable

water quality standards.” See 33 U.S.C. § 1313(d)(1)(C) (incorporated by

reference into Consent Decree at 9). The EPA must conduct “a biennial review of

the TMDL program in Georgia,” including “whether the TMDLs . . . have been

incorporated into Georgia’s NPDES permits.” Consent Decree at 16. Moreover,

each stage of TMDL proposals by the EPA relates to a new WQLS list

promulgated by the state of Georgia, making review of the underlying WQLS lists

essential to monitoring the TMDLs themselves. Consent Decree at 11-14. The

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In fact, the decree explicitly states that the EPA “does not obligate itself to perform, or
ensure the performance of” the incorporation of TMDLs into future Georgia/EPA Performance
Partnership Agreements. Consent Decree at 15.

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EPA also agreed to “propose incorporation” of language linking TMDLs and the

NPDES permits “into future Georgia/EPA Performance Partnership Agreements

(PPA).” Consent Decree at 15. Given this explicit language within the consent

decree, we agree with the district court that examination of the content of the

TMDLs, WQLS lists and PPAs was “necessary to meaningful enforcement of the

Consent Decree.” Order at 7. This information certainly appears “relevant to those

rights” established by the decree and “related to terms of the judgment,” as

required under our decision in Brooks. 997 F.2d at 864.

The EPA also argues that a consent decree clause reserving the right of the

plaintiffs to challenge the TMDLs in the future implies that the consent decree

covered only the existence of the standards rather than their compliance with

applicable laws. Similarly, the EPA claims that challenges to future TMDLs

would require “different issues and new administrative records,” implying that

such claims are distinct from any rights secured by the consent decree. However,

the possibility of a future, separate TMDL challenge does not imply that all issues

relating to TMDLs would have to be litigated separately. Had the plaintiffs

discovered that certain TMDL standards were so patently inadequate that they did

not meaningfully implement the consent decree, the plaintiffs could have returned

to the district court and requested enforcement. Given that the consent decree

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granted the court jurisdiction to issue orders “necessary or appropriate to construe,

implement, modify, or enforce” the decree, Consent Decree at 7-8, and given that

the court found review of TMDL content “necessary to meaningful enforcement,”

Order at 7, the district court might have considered such an action to be within the

terms of the decree. As explained above, our decision in Meiburg does not

suggest otherwise.

Finally, the EPA argues that the relevant fee-shifting provision does not

cover a non-testifying expert witness. Under the terms of the CWA, 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). In this case, the district court

awarded expert witness fees to plaintiffs’ expert Barry Sulkin, noting that the

litigation had been especially complex and that he had “helped plaintiffs prevail.”

The government seizes on this phrase, arguing that the expert could not

have helped the plaintiffs “prevail,” since at most he helped to monitor an

established consent decree. While the word may not have been entirely accurate,

the plaintiffs are still “prevailing or substantially prevailing” within the context of

monitoring an environmental consent decree. As the Fourth Circuit explained,

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 if we do not interpret “prevailing” in light of the goals of the Clean Water
Act, the legislative purpose in awarding fees will be frustrated. The
legislative history of the fee shifting provisions indicates that they were
enacted to encourage litigation to ensure proper administrative
implementation of the environmental statutes. Both the Clean Air Act and
section 1365(d) authorize a court to award fees whenever it determines that
such award is appropriate . . . Unlike plaintiffs in traditional civil actions,
plaintiffs in environmental suits do not seek to vindicate personal rights and
they obtain no financial benefit if they win.

National Wildlife Federation v. Hanson, 859 F.2d 313, 316-17 (4th Cir. 1988).

Similarly, the cases cited by the EPA do not apply to the monitoring of a

post-judgment consent decree. In Sierra Club v. EPA, 769 F.2d 796, 812 (D.C.

Cir. 1985), a D.C. Circuit panel denied expert witness fees to a “technical

consultant” who had assisted the attorneys in preparing a general challenge to

Clean Air Act regulations. As with all the cases cited by the EPA, however, Sierra

Club involved the use of an expert in preparation for litigation that actually

commenced rather than the monitoring of a consent decree. Moreover, Sierra Club

predated Pennsylvania v. Delaware Valley Citizens’ Council, 478 U.S. 546 (1986),

the key Supreme Court case establishing the intimate connection between initial

litigation and the post-judgment monitoring of a consent decree.

In Delaware Valley, an environmental group challenged the failure of the

Pennsylvania state government to comply with its obligation under the Clean Air

Act to establish a vehicle emissions program. The parties entered into a consent

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decree requiring the state Department of Transportation to seek legislation

instituting an inspection program and, if that proved unsuccessful, to promulgate

regulations allowing inspections in certified private garages. Despite the consent

decree, the dispute dragged on for several years. The state legislature both refused

to enact legislation and attempted to block expenditure of state funds on a private

program, while the executive branch delayed issuance of the specified regulations.

The parties modified the consent decree on several occasions, and the court twice

found the state in violation of the decree. Id. at 549-53.

The Delaware Valley plaintiffs sought attorneys’ fees under the fee-shifting

provisions of the Clean Air Act, 42 U.S.C. § 7604(d).4 The Commonwealth

objected that any time spent monitoring the consent decree outside of preparation

for actual litigation fell outside the scope of § 7604(d), which covered only “costs

of litigation” in any “action brought” pursuant to the statute. The Supreme Court

rejected this argument, noting that Congress enacted the fee-shifting provision in

order to “encourage citizen participation in the enforcement of standards and

4
The Clean Air Act fee-shifting provisions are substantially similar to the CWA
provisions. Compare 42 U.S.C. § 7604(d) (“The court, in issuing any final order in any action
brought pursuant to subsection (a) of this section, may award costs of litigation (including
reasonable attorney and expert witness fees) to any party, whenever the court determines such
award is appropriate.”) with 33 U.S.C. § 1365(d) (“The court, in issuing any final order in any
action brought pursuant to this section, 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.”).

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regulations established under this Act.” 478 U.S. at 560 (quoting S. Rep. No. 91-

1196 (1970)). The Court examined the specific provisions of the consent decree

and concluded that it “provided detailed instructions as to how the program was to

be developed and the specific dates by which these tasks were to be accomplished.

Protection of the full scope of relief afforded by the consent decree was thus

crucial to safeguard the interests asserted . . . .” Id. at 558. The case at hand also

required significant post-judgment monitoring in order to protect the relief

afforded plaintiffs through the consent decree. We therefore look to Delaware

Valley for guidance in this case.

The role of expert witnesses in post-judgment consent decree monitoring

appears to be a question of first impression. Nonetheless, we are guided by the

Supreme Court’s observation that “measures necessary to enforce the remedy

ordered by the District Court cannot be divorced from the matters upon which

[plaintiffs] prevailed in securing the consent decree.” Id. at 559. As this Court has

recognized, Delaware Valley “employed a pragmatic test over a technical one in

construing the attorney’s fees statute.” Brooks, 997 F.2d at 863. That is, the

Supreme Court placed more weight on the nature of the rights secured by the

consent decree and the measures necessary to secure those rights than on the

technical definition of “litigation costs.”

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 In the present case, protection of the rights enshrined in the consent decree

depends upon highly technical, post-judgment monitoring and evaluation of

discharge levels, including the intricacies of pollution movement through various

water bodies and associated sediment. Given the absence of a hearing at which an

expert could testify and the importance of his work to the enforcement of the

consent decree, we cannot say that the district court abused its discretion by

determining that the plaintiffs were entitled to expert witness fees. See also

Garrity v. Sununu, 752 F.2d 727, 738-39 (1st Cir. 1984) (“The court was entitled

to believe that relief would occur more speedily and reliably if the monitoring

referred to occurred, and that this was a necessary aspect of plaintiffs' ‘prevailing’

in the case. We find no abuse of discretion in that part of the award.”).

AFFIRMED.

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