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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
OF CALIFORNIA
MARBLED MURRELET, et al., Plaintiffs, v. BRUCE BABBITT, et al.,
Defendants.
Amici Curiae Brief of Sierra Club, Natural Resources Defense Council, Defenders of Wildlife, Southwest Center for Biological Diversity, Biodiversity Legal Foundation, California Public Interest Research Group, Washington Public Interest Research Group, Trial Lawyers for Public Justice, and California Environmental Law Project
in Opposition to Defendants' Motion for An Award of Attorneys' Fees and Expenses
JAMES M. HECKER
Trial Lawyers for Public Justice
1717 Massachusetts Avenue, N.W.
Suite 800
Washington, D.C. 20036
(202) 797-8600
KELLY L. DRUM #172767
1168 Dolores Street
San Francisco, CA 94110
(415) 826-9218
Counsel for Amici Curiae Sierra Club, et al.
Introduction
If PL's motion were granted, it would have a chilling effect not only on the plaintiff in this case but on citizen plaintiffs throughout the country. EPIC brought this citizen suit solely in the public interest, with no expectation of any financial gain. Congress has encouraged private citizens such as EPIC to participate in the vigorous enforcement of federal law by including citizen suit provisions in the Endangered Species Act (ESA) and many other environmental statutes. The purpose and effectiveness of these citizen suits would be severely undermined if citizen plaintiffs faced the prospect of paying enormous fees and costs whenever a citizen suit was unsuccessful.
The amici represented here frequently bring citizen suits to deter violators and enforce compliance with federal environmental requirements. Nearly all of these suits are brought under the citizen suit provisions of the ESA, Clean Water Act (CWA), Clean Air Act (CAA), Resource Conservation and Recovery Act (RCRA), Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), and Emergency Planning and Community Right-to-Know Act (EPCRA). The fee-shifting provisions of these statutes are nearly identical. It is therefore of enormous importance that this Court apply the correct standard for evaluating fee awards in this case.
Furthermore, PL's motion raises serious constitutional issues, since the First Amendment right to petition the government includes the right to bring a lawsuit in the courts. Amici often use citizen suits to achieve their political objectives and to advance their positions on public health and environmental issues. The fee-shifting authority in citizen suit provisions was intended to encourage this practice, not to punish citizens merely because their efforts were unsuccessful.
Identity of Amici
The nine organizations submitting this brief have a direct and substantial interest in enforcing federal environmental laws, and in the interpretation of the citizen suit provisions of those laws.
The Sierra Club is a national non-profit organization of over 525,000 members dedicated to exploring, enjoying, and protecting the wild places of the earth; to practicing and promoting the responsible use of the earth's ecosystems and resources; to educating and enlisting humanity to protect and restore the quality of the natural and human environment; and to using all lawful means to carry out these objectives. The Sierra Club frequently files citizen suits to stop activities that violate local, state or federal environmental laws and cause harm to the natural environment.
The Natural Resources Defense Council, Inc. (NRDC) is a national, non-profit environmental law organization with approximately 350,000 members nationwide. For over 25 years, NRDC has successfully advocated and litigated concerning a broad range of environmental matters, including wildlife preservation, open-space protection, and land use. NRDC and its members have a direct and immediate interest in the enforcement of federal environmental laws through the citizen suit provisions.
Defenders of Wildlife (Defenders) is a non-profit corporation with over 200,000 members and supporters. Defenders is dedicated to preserving wildlife and emphasizing appreciation and protection for all species, including predators, in their ecological role within the natural environment. Defenders furthers its goals by public outreach, grassroots organizing, government lobbying, and forging partnerships with citizen and industry groups, but often must utilize the citizen suit provisions of the ESA to force protection of imperilled species. See, e.g., Defenders of Wildlife v. Babbitt, 958 F. Supp. 670 (D.D.C. 1997).
The Southwest Center for Biological Diversity is a nonprofit environmental organization incorporated in New Mexico which conducts endangered species research and litigation to protect biological diversity in New Mexico, Arizona, and California. It has approximately 4,000 members in these three states. It has brought citizen suits under the ESA to enforce that statute. E.g., Southwest Center for Biological Diversity v. Babbitt, 939 F. Supp. 49 (D.D.C. 1996).
The Biodiversity Legal Foundation (BLF) is a science-based, non-profit conservation organization dedicated to the preservation of all native wild plants and animals, communities, species and naturally-functionally ecosystems. Through reasoned educational, administrative and legal action, the BLF endeavors to encourage improved attitudes and policies for all living things.
California Public Interest Research Group and Washington Public Interest Research Group are non-profit citizen advocacy groups that work, inter alia, to protect public health and the environment, such as by filing citizen suits. See, e.g., California Public Interest Research Group v. Shell Oil Co., 840 F. Supp. 712 (N.D. Cal. 1993); Washington Public Interest Research Group v. Pendleton Woolen Mills, 11 F.3d 883 (9th Cir. 1993).
Trial Lawyers for Public Justice (TLPJ) is a national public interest law firm based in Washington, D.C. and specializing in precedent-setting and socially significant tort, trial and environmental litigation. TLPJ's Environmental Enforcement Project uses citizen suits to enforce compliance with federal environmental laws, including the CWA, CAA, CERCLA, and EPCRA. See, e.g., Arkansas Wildlife Federation v. Bekaert Corp., 791 F. Supp. 769 (W.D. Ark. 1992).
The California Environmental Law Project (CELP) is a not-for-profit corporation organized under the laws of California. CELP's purpose is to provide legal services to grass roots and established environmental organizations in order to promote preservation, maintenance, and enhancement of ecosystems and wildlife habitats unique to California. Its work frequently involves issues relating to the National Environmental Policy Act, the ESA, and the Clean Water Act. CELP has successfully defended an attorneys' fees request by a prevailing defendant in an ESA citizen suit. National Audubon Society v. Babbitt, No. CV 94-0105-GT (S.D. Cal., Dec. 15, 1994).
Argument
I. Prevailing Defendants May Only Receive Fees and Costs If a Citizen Plaintiff's Suit Was Frivolous or Harassing.
Prevailing defendants may only receive fee awards in highly restricted circumstances. The seminal case on this issue is Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), in which the Supreme Court held that while prevailing plaintiffs in Title VII cases "should ordinarily recover an attorney's fee," prevailing defendants in such cases may recover fees only if they can show that "plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." The Court later explained in Fogerty v. Fantasy, Inc., 114 S.Ct. 1023, 1028 (1994), that it adopted this "dual" standard in Christiansburg because:
impecunious "private attorney general" plaintiffs can ill afford to litigate their claims against defendants with more resources. Congress sought to redress this balance in part, and to provide incentives for the bringing of meritorious lawsuits, by treating successful plaintiffs more favorably than successful defendants in terms of the award of attorney's fees.
The Court of Appeals for this Circuit has squarely held that this Christiansburg standard applies to fee awards to prevailing defendants in citizen suits under RCRA and the CWA. Razore v. Tulalip Tribes of Washington, 66 F.3d 236, 240 (9th Cir. 1995). The fee provision in those statutes is essentially the same as the one in the ESA, and must be interpreted in the same manner. cite. Razore is therefore the controlling precedent in this case.
In addition to Razore, every other court in the country which has considered a fee request by a prevailing defendant in a citizen suit has applied the same stringent standard and denied a fee award. One district court applied a "frivolous or bad faith" standard to an ESA citizen suit and denied defendant's fee request. National Audubon Society v. Babbitt, Case No. CV 94-0105-GT (S.D. Cal., Dec. 15, 1994). Five district courts have applied a "frivolous" or "meritless" standard and have uniformly denied requests by prevailing defendants for fees and costs in citizen suits under the Clean Water Act. Atlantic States Legal Foundation v. Arrow Transportation Co., Civil No. 95-147-HA (D. Ore., Jan. 27, 1997); Atlantic States Legal Foundation v. Onondaga Department of Drainage and Sanitation, 899 F. Supp. 84, 87 (N.D.N.Y. 1995); Washington Trout v. Scab Rock Feeders, 823 F. Supp. 819, 821 (E.D. Wash. 1993); National Wildlife Federation v. Consumers Power Co., 729 F. Supp. 62, 64 (W.D. Mich. 1989); Sierra Club v. SCM Corp., Civ-82-1076T (W.D. N.Y. 1985). A district court has applied a "frivolous or harassing" standard and denied a request for a prevailing defendant in a citizen suit under the Clean Air Act. Consolidated Edison Co. v. Realty Investment Assoc., 524 F. Supp. 150, 153 (S.D. N.Y. 1981). Four courts have denied fees to prevailing defendants in RCRA citizen suits based on findings that the suits were not frivolous. Orchard Lane Road Association v. Pete Lien & Sons, Inc., 16 F.3d 416, 1994 U.S. App. LEXIS 1508, 24 ELR 20804 (10th Cir. 1994); Palumbo v. Waste Technologies Industries, 37 F.3d 1495, 1994 U.S. App. LEXIS 29355 (4th Cir. 1994); Truck Components Inc v. Beatrice Co., 1996 U.S. App. LEXIS 9946 (N.D. Ill., July 15, 1996); Environmental Compliance Oversight Corp. v. SmithKline Beecham Corp., 1994 WL 675297 (E.D. Pa., Nov. 21, 1994). In sum, PL has not cited, and we have not found, a single case awarding fees to a prevailing defendant under the citizen suit provisions of any federal environmental statutes.
The courts' use of this stringent standard is directly supported by the legislative history of federal environmental statutes. The Senate Committee Report on the 1970 Clean Air Act stated that the standard for awarding fees to prevailing defendants was "where the litigation was obviously frivolous or harassing." S. Rep. No. 1196, 91st Cong., 2d Sess. 38 (1970). The Senate Committee Report on the 1972 Clean Water Act similarly stated that (S. Rep. No. 414, 92nd Cong., 1st Sess. 81 (1971)):
Concern was expressed that some lawyers would use section 505 to bring frivolous and harassing actions. The Committee has added a key element in providing that the courts may award costs of litigation, including reasonable attorney and expert witness fees, whenever the court determines that such action is in the public interest. The court could thus award costs of litigation to defendants where the litigation was obviously frivolous or harassing. This should have the effect of discouraging abuse of this provision, while at the same time encouraging the quality of the actions that will be brought. [emphasis added]
The Senate Committee Report on the Marine Protection, Research, and Sanctuaries Act of 1972 interpreted the similar citizen suit provision of that statute (1972 U.S. Code Cong. & Admin. News 4234, 4249-50):
Furthermore, in issuing a final award in any such [citizen] suit the court may award certain costs of litigation to any party when it concludes, in its discretion, that such an award is appropriate (e.g., if the plaintiff shows that the suit was meritorious, and not filed for the sake of mere harassment). On the other hand, if the court concludes that the purpose of the suit was harassment, the court may award such costs to the defendant.
The Endangered Species Act's legislative history states that its "language is parallel to that contained in the recent Marine, Protection, Research and Sanctuaries Act of 1972, and is to be interpreted in the same fashion." H. Rep. No. 412, 93d Cong., 1st Sess. 19 (1973). See Village of Kaktovik v. Watt, 689 F.2d 222, 224 n.14 (D.C. Cir. 1982). Congress therefore intended to apply a more rigorous standard to prevailing defendants.
Under this standard, PL's motion must be denied. PL proposed to cut down redwood trees in an area that the federal government has designated as critical habitat for rare and endangered birds that nest in those trees. Plaintiffs filed a citizen suit raising claims under sections 7 and 9 of the ESA to stop this activity. Two district judges found that plaintiffs' section 7 claim raised serious questions and granted preliminary injunctions against the logging activity. Plaintiffs' submitted the sworn declarations of expert scientists explaining in detail how this logging would harm those birds, in violation of section 9. The court found that these declarations "have been set forth in good faith and in a professional manner." In these circumstances, there is no way that plaintiffs' suit can be deemed frivolous or harassing.
II. The Use of a "Frivolous or Harassing" Standard Is Necessary To Preserve the Purpose and Effectiveness of Citizen Suits.
Private plaintiffs in citizen suits are Congress' "chosen instrument" for enforcing federal environmental statutes. Consumers Power, 729 F. Supp. at 64. Congress created citizen suits because it was "wary of the untrustworthiness or lack of will of federal environmental agencies and the inevitable lack of resources for those agencies to address all statutory violations." Conservation Law Foundation v. Browner, 840 F. Supp. 171 (D. Mass. 1993). "Complete deference to agency enforcement strategy, adopted and implemented internally and beyond public control, requires a degree of faith in bureaucratic energy and effectiveness that would be alien to common experience." Gardeski v. Colonial Sand & Stone Co., Inc., 501 F.Supp. 1159, 1168 (S.D.N.Y. 1980). "Congress intended citizen suits to both goad the responsible agencies to more vigorous enforcement of the anti-pollution standards and, if the agencies remained inert, to provide an alternative enforcement mechanism." Baughman v. Bradford Coal Co., Inc., 592 F.2d 215, 218 (3rd Cir. 1979).
The United States has acknowledged in an amicus brief that "citizen suits are an important supplement to government enforcement." Atlantic States Legal Foundation v. Tyson Foods, 897 F.2d 1128, 1136 (11th Cir. 1990). Congress has expressed the same view. The Senate Report on the 1987 amendments to the Clean Water Act stated that citizen suits "are a proven enforcement tool" that "have deterred violators and achieved significant compliance gains." S. Rep. No. 50, 99th Cong., 1st Sess. 28 (1985). During the debates on the 1990 amendments to the Clean Air Act, Senator Mitchell stated that (136 Cong. Rec. 5286 (March 26, 1990):
Citizen resources are an important adjunct to governmental action to assure that these laws are adequately enforced. In a time of limited Government resources, enforcement through court action prompted by citizen suits is a valuable dimension of environmental law.
In short, Congress has viewed citizen suits as one of the key methods of enforcing federal environmental laws.
Congress stated in the legislative history of the CWA that "citizens should be unconstrained to bring these actions," and courts "should not hesitate to consider them." Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 1525 (9th Cir. 1987), citing S. Rep. No. 414, 92d Cong., 2d Sess., 1972 U.S. Code Cong. & Admin. News 3746. The legislative history of the CAA similarly "suggests a sensitive handling of citizen suits, that reflects Congress' conviction that such suits can perform an indispensable function." Gardeski, 501 F. Supp. at 1168. "Congress made clear that citizen groups are not to be treated as nuisances or troublemakers but rather as welcomed participants in the vindication of environmental interests." Friends of the Earth v. Carey, 535 F.2d 165, 172-73 (2nd Cir. 1976). "[C]itizen suits provide interstitial means for enforcement of environmental standards in furtherance of the remedial purpose of the [Clean Air] Act." Sierra Club v. Public Service Co. of Colorado, 894 F.Supp. 1455, 1459 (D. Colo. 1995). The citizen suit provisions reflect "a deliberate choice by Congress to widen citizen access to the courts, as a supplemental and effective assurance that the [Clean Air] Act would be implemented and enforced." Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692, 700 (D.C. Cir. 1975).
Citizen suits are quite different from other forms of private litigation. They involve a unique combination of benefits, incentives and risks. Citizen plaintiffs "are suing as private attorneys general" and "effectively stand in the shoes of the EPA." Chevron, 834 F.2d at 1522. "In performing this public service, a citizen has no profit interest; rather, a citizen may only be reimbursed for her costs and attorney's fees." Friends of the Earth v. Chevron Chemical Co., 885 F. Supp. 934, 939 (E.D. Tex. 1995) "Thus, a citizen who brings a suit under Section 1365 [the citizen suit provision of the CWA] is usually following altruistic intentions." Id. From the beginning of a citizen suit, the plaintiff expects no direct "upside" benefit to himself if he wins. The benefit inures primarily to the public in the form of injunctive relief to stop the illegal conduct, or to the U.S. Treasury in the form of penalties for past violations of statutory requirements. "Unlike in a qui tam action, where a volunteer plaintiff can recover a part of the penalty, in this [citizen suit] action a plaintiff recovers nothing." Chevron, 834 F.2d at 1522, quoting Chesapeake Bay Foundation v. Bethlehem Steel Corp., 608 F. Supp. 440, 449 (D. Md. 1985).
If PL's arguments in this case were adopted, plaintiffs would not only face the risk of losing, but having to pay large sums of money for the defendant's fees and costs whenever it lost. Not even the most altruistic citizen plaintiff could be expected to bear this enormous risk. It would be financial suicide. As the court in Chevron stated in addressing a similar burden on citizen suits (885 F. Supp. at 939):
To place upon these citizen plaintiffs the speculative hazard of paying a Defendant's attorney's fees and costs would likely have an undesirable effect. Such a hazard would have a chilling effect upon citizens bringing enforcement actions under Section 1365. Indubitably, this would eviscerate the effectiveness of Section 1365.
The importance of citizen suits under the ESA, including the present one, is particularly compelling. The first stated purpose of the ESA is "to provide a mechanism whereby the ecosystems upon which endangered species and threatened species depend may be conserved." 16 U.S.C. Sec. 1531(b). In 1990, the U.S. Environmental Protection Agency's Science Advisory Board concluded that (1) habitat alteration and destruction and (2) species extinction and loss of biological diversity were the two most important environmental threats facing nature and society. EPA, SAB, Reducing Risk: Setting Priorities and Strategies for Environmental Protection 11 (1990). The ESA therefore takes aim at the most serious threat to life on earth. Plaintiffs in this case diligently and responsibly tried to reduce that threat. Their efforts should not be punished by an award of fees to a prevailing defendant.
III. The Use of a "Frivolous or Harassing" Standard Is Necessary to Avoid Interference with Constitutionally Protected Rights of Free Speech and Association.
The amici organizations filing this brief were formed, inter alia, so that citizens could associate to better advocate their common interests in protecting and preserving the environment and public health. "Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association * * *." NAACP v. Alabama, 357 U.S. 449, 460 (1957). Amici's core activities all involve the exercise of First Amendment rights. They organize citizens, speak to the public about issues, lobby the government for the passage and enforcement of laws, and/or use public interest litigation to achieve the group's goals. The filing of a citizen suit to enforce federal environmental laws is a form of political speech, which is protected by the First Amendment. It is a Congressionally-authorized method of using citizen participation both to advance the organization's environmental goals and interests and to enforce compliance with federal environmental requirements.
In two cases involving similar logging controversies, both this Court and the Ninth Circuit have ruled that litigation by environmental groups to prohibit logging activities in California forests is constitutionally protected under the First Amendment. In Sierra Club v. Butz, 349 F. Supp. 934 (N.D. Cal. 1972), this Court dismissed a lumber company's counterclaims for damages to its business allegedly resulting from that litigation. This Court stated that citizens must have "breathing space" for their First Amendment freedoms to survive, and this "breathing space" protects citizens from liability unless a defendant shows that the plaintiff's conduct is a sham designed to injure the defendant rather than a genuine attempt to influence governmental action. Id. at 938-39. This "sham" and "intent to injure" standard embodies the same "frivolous and harassing" standard that we have discussed above.
Similarly, in Oregon Natural Resources Council v. Mohla, 944 F.2d 531 (9th Cir. 1991), the Ninth Circuit rejected counterclaims against an environmental group that filed an unsuccessful suit to stop a timber sale in Oregon. The court of appeals held that because the suit was a genuine effort to seek judicial relief and raised substantial, difficult legal issues, it was constitutionally protected activity and did not meet the "sham" standard. Id. at 535. The court added that "where the petitioner's goals are political, rather than economic, protection is particularly appropriate." Id. at 535, n.3. There, as here, the plaintiff filed suit "in order to achieve a political goal of preventing the cutting of old-growth forest." Id.
The holdings in Butz and Mohla apply directly to the present case. Again, an environmental group is seeking to use litigation to enforce federal law and prohibit logging activities. When citizens bring Congressionally-authorized litigation to enforce federal law, that right should not be unduly burdened by the threat of heavy monetary liability as a result of reasonable efforts to exercise that right.
Application of a "frivolous and harassing" standard for fee awards to defendants is necessary to protect this right. "When a court imposes fees on a plaintiff who has pressed a 'frivolous' claim, it chills nothing that is worth encouraging." Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993). There is therefore no constitutional immunity from an award of fees for bringing frivolous claims. Computer Associates International v. American Fundware, 831 F. Supp. 1516, 1523 (D. Colo. 1993). On the other hand, application of the more lenient standard advocated by PL here would chill the exercise of constitutionally protected activity. Congress has encouraged citizens to file citizen suits to enforce federal environmental laws whenever they have reasonable grounds for believing that those laws are being violated. It is therefore critical to ensure that citizens continue to have the "breathing space" to file such claims without the threat of potentially ruinous liability of paying the fees and costs of prevailing defendants.
The financial impact of such awards would be devastating to the amici organizations filing this brief. Those organizations cannot even afford to pay their own counsel in citizen suits at standard rates. Instead, they must rely on their own salaried in-house attorneys, if any, to litigate citizen suits, or turn to outside public interest law firms, such as EarthJustice Legal Defense Fund (formerly Sierra Club Legal Defense Fund), the National Environmental Law Center, and Trial Lawyers for Public Justice. The in-house attorneys at these organizations "typically are compensated at rates far below those prevailing in the marketplace." Copeland v. Marshall, 641 F.2d 880, 898 (D.C. Cir. 1980). In addition, amici typically do not pay fees to outside counsel to litigate citizen suits. Those counsel instead agree to work on a contingent basis with the expectation of a statutory fee award if they are successful. Amici can only litigate citizen suits if they maintain these limitations on their financial exposure. The additional threat of paying commercial rates of prevailing defendants whenever they lost a citizen suit would simply make it impossible to bring one. No rational public interest group would take such risks. Even if a group could survive such an award, it would divert resources from more productive activities, scare away members, and force the group to curtail its advocacy and refrain from filing cutting-edge, novel, or difficult cases for fear of liability for large fee awards to defendants.
In order to avoid this chilling impact on public interest litigation, this Court should find that the "frivolous or harassing" standard is necessary to avoid undue interference with the constitutionally protected right to bring citizen suits to enforce federal environmental laws. Otherwise, the fee-shifting power could be used as a retaliatory weapon by successful defendants to prevent, challenge and punish citizen participation and activism.
Conclusion
For these reasons, PL's motion for fees and costs should be denied.
Respectfully submitted,
JAMES M. HECKER
Trial Lawyers for Public Justice
1717 Massachusetts Avenue, N.W.
Suite 800
Washington, D.C. 20036
(202) 797-8600
KELLY L. DRUM #172767
1168 Dolores Street
San Francisco, CA 94110
(415) 826-9218
Counsel for Amici Curiae Sierra Club, et al.