CONSERVATION LAW FOUNDATION, INC. v. Patrick, 767 F. Supp. 2d 244

Background

CLF filed suit in 2006 alleging the Commonwealth discharged storm water pollutants without appropriate NPDES permits under the Clean Water Act.
The Court found the Commonwealth violated NPDES permit provisions and ordered remediation plans and site-specific actions with a multi-year timeline.
The Court issued an May 11, 2010 order requiring detailed engineering plans and concrete milestones to ensure compliance, with sanctions for further noncompliance.
CLF moved for interim attorneys' fees under 33 U.S.C. § 1365(d) after the May 11, 2010 order, arguing it prevailed and its efforts were necessary to reach this point.
The Commonwealth opposed the fee request, challenging hours, rates, and certain travel and administrative costs.
The court granted interim fees and assessed a lodestar analysis, applying substantial reductions for non-contemporaneous records, block billing, and clerical tasks, and applying Boston-area rates for CLF and Shearman & Sterling respectively.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether CLF is a prevailing party entitled to interim fees	CLF achieved a material alteration of the legal relationship and obtained remedial orders.	No final judgment; liability for partial outcomes should not automatically yield interim fees.	Yes; CLF is a prevailing party entitled to interim fees.
Whether hours claimed were reasonably expended	Hours claimed reflect work necessary to obtain relief and comply with orders.	Hours should be reduced for non-contemporaneous records, block billing, and clerical tasks.	Hours substantially reduced; only reasonably expended hours recovered.
What rates are reasonable for Boston market work on this CWA matter	Boston market rates from commercial litigation should apply; high rates are justified.	First Circuit precedent supports lower, Boston-market rates for work in this type of litigation.	Boston rates apply: senior CLF attorneys $310/hr, staff/assisting $175/hr, paralegals/interns $75/hr; out-of-town Shearman & Sterling work aligned to Boston rates.
Whether travel, administrative, and non-legal tasks are recoverable	Travel and certain research/administrative tasks are recoverable as part of reasonable fees.	Travel for mere commuting and clerical tasks should be disallowed or discounted.	Travel time narrowly approved for court appearances; most clerical/administrative tasks disallowed or discounted; some travel costs limited.
Whether costs beyond fees (transcripts, experts, travel) are recoverable	Expert fees, transcripts, and limited travel costs are recoverable under the Act.	Some travel costs for counsel and administrative costs are not recoverable as costs.	Costs awarded in part: transcripts $2,611.45; expert fees $44,012.96; limited travel to court $2,442.97; legal research $10,650.70; total costs awarded $59,718.08.

Key Cases Cited

Earth Island Inst., Inc. v. Southern Cal. Edison Co., 838 F.Supp.458 (S.D. Cal. 1994) (defining prevailing party standard under fee-shifting statutes)
Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (multifactor test for reasonable attorney’s fees; prevailing party standard)
Buckhannon Bd. & Care Home, Inc. v. West Va. Dep't of Health & Human Res., 532 U.S. 598 (U.S. 2001) (material alteration of legal relationship required for prevailing party)
Hutchinson ex rel. Julien v. Patrick, 636 F.3d 1 (1st Cir. 2011) (interim attorney fees permissible when concrete order determines substantial rights)
Tri-City Cmty. Action Program, Inc. v. City of Malden, 680 F.Supp.2d 306 (D. Mass. 2010) (precedent for fee shifting and interim fee awards in environmental litigation)
Greenfield Mills, Inc. v. Carter, 569 F.Supp.2d 737 (N.D. Ind. 2008) (interim fee awards and lodestar considerations in complex litigation)
Vieques Conservation & Historical Trust, Inc. v. Martinez, 313 F.Supp.2d 40 (D.P.R. 2004) (forum-rate preference for determining reasonable rates for out-of-town counsel)