[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
2
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
3
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.
4
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.
5
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.
6
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
3
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.
7
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
8
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,
9
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
10
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.”).
11
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.”
12
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.
13