A recent Law 360 story by Michael Phillis, “Activists Request $850K in Atty Fees For Calif. Water Win,” reports that attorneys representing environmental groups want roughly $850,000 in attorney fees and costs for work that led to a federal judge tossing the U.S. Environmental Protection Agency's finding that salt ponds near San Francisco Bay are not covered by the Clean Water Act. Attorneys for San Francisco Baykeeper, Save the Bay and others said they spent more than 1,900 hours on the case and that they're entitled to fees and costs for that effort pursuant to the Equal Access to Justice Act. The total is based on a blended hourly rate of $442, according to the motion.
U.S. District Judge William Alsup ruled in October that while the history and application of the Clean Water Act is undeniably complex, EPA headquarters ignored Ninth Circuit precedent and its own regional draft determination that the 1,300 acres of ponds at issue were "waters of the United States" when it said the CWA doesn't apply to the ponds. The agency got it wrong and must take a new look, the judge said.
The attorneys said they've earned the fee. "Plaintiffs are entitled to this award because they met the eligibility requirements under EAJA, they have wholly prevailed in this case, the hours and rates sought by counsel are reasonable, an EPA cannot carry its burden of showing that its position in this case was 'substantially justified,'" they said. They said they are working with the EPA to settle the fee request issue and "avoid further litigation on this matter."
About $532,000 of the request is for work by Cotchett Pitre & McCarthy LLP, which spent 836.9 hours on the case. Their rate requests were as high as $950 an hour for work done by a senior partner, $650 for work done by other partners and lower amounts for efforts by associates and paralegals. Earthrise attorneys requested nearly $247,000 in fees and costs for 886 hours of work. Baykeeper sought nearly $71,000 for 189 hours, according to the filing. The attorneys argued that their success in the case, along with the specialized environmental law and expertise the case required, justified their rate request.