Conservation Law Found. Inc. v. Deval Patrick In His Official Capacity As Governor of Mass.

767 F.Supp.2d 244

CONSERVATION LAW FOUNDATION, INC., Charles River Watershed Association, Inc., and Leominster Land Trust, Inc., Plaintiffs,

v.Deval PATRICK in his official capacity as Governor of Massachusetts; John Cogliano, in his official capacity as Secretary of Transportation; and Luisa Paiewonsky, in her official capacity as Commissioner of Massachusetts Highway Department, Defendants.

Civil Action No. 06–11295–WGY.

United States District Court, D. Massachusetts.

March 4, 2011.

Cynthia E. Liebman, Peter Shelley, Conservation Law Foundation, Boston, MA, Christopher M. Kilian, Carol Lee Rawn, Conservation Law Foundation, Montpelier, VT, John M. Padilla, Shearman & Sterling LLP, New York, NY, for Plaintiffs.

Julie B. Goldman, Tori T. Kim, Office of the Attorney General, Deirdre Roney, State Ethics Commission, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

YOUNG, District Judge.I. Introduction

After long and contentious litigation, the Conservation Law Foundation (“CLF”) moves for the award of interim attorneys' fees based upon this Court's order of May 11, 2010. On that date, this Court stated:

[I]t's unmistakable that the Conservation Law Foundation is a prevailing party in this, in this proceeding and it may within 60 days of today's date submit its full application for attorneys' fees. Not, not to complete, because there may be more litigation, but what was necessary to bring us to this point. The order that I enter today is because of the work, the groundwork that you did. I hoped for, I expected compliance. There has not been compliance. You prevail. You should be ... compensated for the time.

Conference Tr. May 11, 2010, 4–5, ECF No. 103.

Without CLF's diligent efforts, there would not have been grounds to find that the Commonwealth had not complied with the Clean Water Act, 33 U.S.C. § 1251 et seq. (the “Act”). Because the Commonwealth of Massachusetts, through its knowing acquiescence in bureaucratic inertia, disobeyed this Court's order, this Court awards CLF interim attorneys' fees.

II. Factual and Procedural Background

The following outline of the factual and procedural background of this case is provided in order to make clear the reasoning behind this Court's May 11, 2010 order.

This case began on July 27, 2006, when CLF, the Charles River Watershed Association, and the Leominster Land Trust filed suit in this Court alleging that the Commonwealth and its administrative agencies had violated the Act by discharging polluted storm water into rivers without the requisite permits.

A. Statutory and Regulatory Framework

The Clean Water Act's purpose is “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). To carry out this lofty and admirable goal, an extremely complex scheme of statutory and regulatory rules, permits, and licenses has been devised. Of particular importance to the case at bar is the National Pollutant Discharge Elimination System (“NPDES”), 33 U.S.C. § 1342, and its application to Small Municipal Separate Storm Sewer Systems (“small MS4”). The NPDES permit system allows the discharge of pollutants but controls “the quantity and concentration of discharged pollutants as well as the rate of discharge.” Rhode Island v. Environmental Prot. Agency, 378 F.3d 19, 21 (1st Cir.2004).

Under the Act, the Administrator of the Environmental Protection Agency (“EPA”) can authorize states to issue NPDES-equivalent permits subject to EPA review. 33 U.S.C. § 1342(b). Massachusetts has not obtained such authorization, so this trial proceeded within the framework of the EPA's federal regime. City of Pittsfield, Mass. v. Environmental Prot. Agency, 614 F.3d 7, 9 (1st Cir.2010).

Because the Massachusetts Highway Department's storm sewer discharge systems are covered by the Act, see 40 C.F.R. § 122.26(b)(16)(iii), and these storm sewer discharge systems require a general or individual NPDES permit, see 40 C.F.R. 122.33, any release by the systems that violates the water quality standards set by the EPA is a violation of the Act. See 33 U.S.C. § 1311(a). CLF initiated this litigation under this theory. See Compl. ¶¶ 16–19, 33.

B. Pre–Trial Proceedings

Pre-trial motions successfully narrowed the issues for trial. The Commonwealth, through its ongoing negotiations with the EPA, successfully defeated CLF's allegation that it was in complete non-compliance. In January 2006, the EPA and the Massachusetts Department of Environmental Protection authorized the Massachusetts Highway Department to “discharge storm water from its designated Small MS4 in accordance with the provisions of the Small MS4 permit.” Letter from Stephen S. Perkins, Director of the Office of Ecosystem Protection, to Louisa M. Paiewonsky, Commissioner, Massachusetts Highway Department, Jan. 25, 2006. Upon receipt of this approval, the Commonwealth sought to dismiss the complaint as moot. See Defs.' Mot. Dismiss, ECF No. 18. This Court denied the Commonwealth's motion on September 11, 2007.

CLF then shifted its theory: it posited that even though the Commonwealth was granted approval to discharge, it could not do so without the EPA's approval of a Storm Water Management Plan (“SWMP”). The Commonwealth moved for summary judgment, arguing that EPA approval of the SWMP was not required by the Act, see Defs.' Mot. Summ. J., ECF No. 23, but the Court denied that motion. The case proceeded to trial on this issue.

C. The Trial

The bench trial in this case took place over the course of six days spread between February and May 2008. At the conclusion of the trial, on May 30, 2008, the Court found in favor of CLF, ruling that the Commonwealth was in violation of certain provisions of the Act's NPDES permit scheme. The Court instructed the Commonwealth, specifically the Massachusetts Highway Department, ¹ to change its SWMP in order to bring it into compliance with the NPDES permit conditions. A remedial plan was to be submitted to the Court by January 2010, and structural remediation of the SWMP was to take place over the course of five years. See Trial Tr., Findings and Rulings, May 30, 2008, ECF No. 94–1.

Additionally, the Court found that the Commonwealth had violated the NPDES permit by causing discharges that exceeded instream water quality standards in three specific locations. The Court ordered the Commonwealth to remediate those three sites within a year of the January 2010 submission of the remedial plan. Following these findings, rulings, and orders, the Court administratively closed the case, subject to reopening on motion by either party. See Order, ECF No. 85.

D. Post–Trial Proceedings

Following the trial, the parties remained in contact concerning the Commonwealth's compliance with this Court's orders. See Pls.' Mot. Reopen and Request Status Conference 2–3, ECF No. 87. CLF, believing that the Commonwealth was not on target to comply with the Court's instructions, moved in October 2009 to reopen the case. Id. At CLF's request, the Court held a status conference on November 4, 2009, at which the Commonwealth assured the Court that it was complying with the Court's orders.

CLF continued to be dissatisfied with the Commonwealth's progress and petitioned this Court to issue a further order regarding the Commonwealth's compliance. See Pls.' Renewed Mot. Entry Order, ECF No. 99. The Court agreed with CLF that the Commonwealth had not taken adequate steps to comply with the Court's orders; in fact, the Commonwealth had made no definitive plans to remediate the three critical sites and had merely incorporated them within a more leisurely general plan of remediation. At a status conference on May 11, 2010, this Court ordered the Commonwealth to submit, within three weeks, a detailed engineering plan concerning the three specific areas at issue, to have equipment at those three sites by June 8, 2010, and to submit a detailed report setting forth its compliance by June 8, 2010. The Court also instructed the Commonwealth that further failure to comply with its orders would result in sanctions. See Conf. Tr., May 11, 2010.

Following this May 11, 2010 status conference, CLF filed the present motion for attorneys' fees. See Pls.' Mot. Interim Award Costs Litigation, ECF No. 117.

III. ANALYSISA. Attorneys' Fees & the Clean Water Act

1. Legal framework

Under the Act, “prevailing” or “substantially prevailing” parties are entitled to be compensated for their litigation costs and attorneys' fees. 33 U.S.C. § 1365(d). A prevailing or substantially prevailing party is one who has “succeeded on ‘any significant issue in the litigation which achieves some of the benefit’ sought.” Earth Island Inst., Inc. v. Southern Cal. Edison Co., 838 F.Supp. 458, 464 (S.D.Cal.1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). Differently stated, under the Act, a “ ‘prevailing party’ is one that achieves ‘a material alteration of the legal relationship of the parties.’ ” Greenfield Mills, Inc. v. Carter, 569 F.Supp.2d 737, 743 (N.D.Ind.2008) (quoting Buckhannon Bd. & Care Home, Inc. v. West Va. Dep't of Health & Human Res., 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001)).

An award of attorneys' fees during the pendency of litigation is the “exception rather than the rule.” Greenfield Mills, 569 F.Supp.2d at 744. Although the First Circuit has stated that the award of attorneys' fees need not “await full litigation of a case and the entry of a final judgment,” Hutchinson ex rel. Julien v. Patrick, No. 10–1268, 636 F.3d 1, 12, 2011 WL 540538, at *7 (1st Cir. Feb. 17, 2011), this Court is mindful of the need to avoid piecemeal litigation, c.f. Appeal of Licht & Semonoff, 796 F.2d 564, 572 (1st Cir.1986). Nonetheless, the central inquiry is “whether the plaintiffs, at this stage, can be said to have succeeded on significant claims affording them some of the desired relief.” Hutchinson, 636 F.3d at 12, 2011 WL 540538, at *7.

The Sixth...