Duke Energy Carolinas, LLC Lost Appeal of Adverse Fee Award.
Because Friday was a slow day for decisions on attorney’s fees issues in the California state courts and Ninth Circuit, we instead review a federal appellate decision affirming a substantial fee award under the Clean Air Act.
Under the Clean Air Act’s citizen suit provision, a court may award attorney’s fees “whenever the court determines such award is appropriate.” 42 U.S.C. § 7604(d). The district court has discretion to award fees even when the prevailing party only partially prevailed–achieving some success, even if not major success. (Ruckelshaus v. Sierra Club, 463 U.S. 680, 688 (1983).) For example, a party can prevail where an agency is ordered to carry out regulatory duties such as adequately investigate complaints, regardless of the ultimate outcome of the investigation. (W. Va. Highlands Conservancy, Inc. v. Kempthorne, 569 F.3d 147, 152-54 (4th Cir. 2009).)
Certain plaintiffs citizen groups won a $483,073.88 attorney’s fees award (out of a requested $886,089) against Duke Energy Carolinas, LLC under the Clean Air Act when they were successful in getting a district judge to grant them a summary judgment directing Duke to engage in administrative proceedings to determine if a proposed coal-fired power plant was a major or minor source of pollution. On appeal in Southern Alliance for Clean Energy v. Duke Energy Carolinas, LLC, __ F.3d __, 2011 WL 1421794 (4th Cir. April 14, 2011), Duke argued that plaintiffs’ accomplishment was merely procedural and trivial in nature. Both the district and appellate courts disagreed. They both found that plaintiffs did achieve one of their main goals of their suit and forced Duke to participate in formal administrative evaluations pursuant to the Clean air Act. This certainly qualified as “some success,” requiring affirmance of the district judge’s fee award in favor of plaintiffs.