ORDER AND FINAL JUDGMENT ON PLAINTIFFS’ APPLICATION FOR INTERIM ATTORNEY’S FEES
This cause came to trial on November 8, 1993, on the Plaintiffs’ claims for nuisance,
I. Background
The Plaintiffs in this case are surface and/or royalty interest owners in the West Hastings Oil Field, in between Alvin and Friendswood, Texas. This field was first discovered in 1934, and at one point produced 70,000 barrels per day. Today the field has 110 producing wells, all requiring some type of artificial lift.
Production from the West Hastings Field is characterized by a rather high ratio of salt water. Historically, the field operators disposed of this salt water in open collection pits that provided for natural evaporation. The use of such pits ultimately became severely restricted by law. Salt water has also been disposed of by re-injection into abandoned wells.
Defendants are past and current operators of the West Hastings Field. Plaintiffs contend that Defendants’ operations have contaminated both the area’s subsurface freshwater supply and the surface of their properties, in derogation of their common-law rights and of state and federal regulations. In particular, Plaintiffs allege that Defendants have negligently allowed salt water to pollute the subsurface, that they are using lift systems which allow subsurface pollution, that they have failed to plug abandoned well to prevent seepage, and that on occasion they allow oil and waste products to spill on the surface.
II. The American Rule
It is, of course, axiomatic to both Federal and Texas jurisprudence that — with narrow exceptions — a litigant cannot recover the cost of his attorney’s fees from his adversary absent specific statutory or contractual authorization.
Alyeska Pipeline Service Co. v. Wilderness Society,
The Supreme Court has strictly limited the common-law exceptions to the American Rule in civil actions to three narrow circumstances, each purportedly arising from the federal courts’ “historic power of equity.”
Alyeska,
The common fund/substantial benefit exception almost describes the circumstances of this case. Even if the Plaintiffs in this case fail to establish the monetary liability of the Defendants for pollution in the West Hastings field, they will have succeeded in determining the extent of any contamination or potential contamination of the acreage overlying the field. Moreover, because the dynamics of fieldwide migration require that this determination be made through field-wide testing, this information will benefit not only the named Plaintiffs, but also the larger (and arguably discrete) class consisting of the thousands who reside over West Hastings.
The posture of this case, however, does not present the Court with one indispensable requirement for applying the substantial benefit exception: jurisdiction over the beneficiary class.
See Johnson v. United States Dep’t of Housing & Urban Dev.,
Prior to the
Alyeska
decision, many courts held that their inherent equitable powers called for a fourth exception to the American Rule, for cases where private citizens prosecuted lawsuits in which the outcome would vindicate substantial public rights with little prospect of direct monetary benefit to the plaintiff. These cases did not qualify for the “substantial benefit” exception because the rights vindicated were those of the public at large, rather than of a discrete group, and the private defendants were not in a position to distribute their losses to the public.
1
Nonetheless, the courts reasoned that equity required reimbursement to these parties, acting as “private attorneys general” on behalf of the citizenry, with the wrongdoer bearing the expense.
See Alyeska,
The “private attorneys general” theory would allow the shifting of attorney’s fees in this case; indeed, the theory largely found its genesis in environmental litigation. The plaintiffs here, at great expense, have sought the abatement of potentially large-scale environmental damage. The Plaintiffs’ efforts have benefited a large segment of the public at large, none of whom will even indirectly share in the cost of this effort. Equity would certainly fail to balk at shifting this expense to the Defendants, who have reaped substantial profits over many decades from the activities causing the damages complained of here.
The
Alyeska
Court, however, squarely rejected this theory, strictly limiting the common-law American Rule exceptions to those which it had recognized prior to 1975. In
Alyeska,
the plaintiffs — a non-profit environmental association — had succeeded in blocking the construction of the Alaska Pipeline prior to Congressional intervention. The circuit court awarded the plaintiffs a portion of their attorneys’ fees against the pipeline com
In response to this decision, Congress has included an attorney’s fees provision in the private enforcement sections of nearly every major piece of environmental legislation it has passed since. 2 See Steven M. Dunne, Attorney’s Fees for Citizen Enforcement of Environmental Statutes, 9 Stan.Envtl.L.J. 1, 1 (1990). Congress has not, however, amended the costs statute, nor has it otherwise provided a general right of fees recovery for “private attorneys general.” Hence the principles of Alyeska have stood rigidly unassailed, and environmental litigators must be careful to bring their actions within the strictures of a specific statutory authorization if they intend to pursue the recovery of their fees and expenses.
III. Clean Water Act
As one potential basis for fees shifting, the Plaintiffs urge that their action is governed by the federal Clean Water Act, 33 U.S.C. § 1251 et seq. Under this Act, private litigants may recover their attorney’s fees and expenses in a civil action to enforce any effluent standard established under the Act’s provisions. 33 U.S.C. § 1365(a).
The Plaintiffs’ assertion that them claims fall within this Act may well be correct, in fact. In court, however, the Plaintiffs have not presented any evidence to support such a claim. In particular, the Plaintiffs have never indicated to the Court that effluent standards for the West Hastings Field have even been established under the Act, much less indicated what these standards are.
Moreover, this Court does not currently have jurisdiction over this case under the Clean Water Act. The Act’s private enforcement provisions specifically require potential litigants to notify the potential defendant,
and
the Environmental Protection Agency,
and
the State, of their intentions to sue, at least 60 days prior to the commencement of any action under the Act. This provision is substantially identical to the private enforcement provisions of numerous federal environmental acts,
3
and its purpose and effect are well-established. Its purpose is to allow the potential defendant time in which to bring its activities into compliance, and to allow the EPA and State time in which to consider whether they will commence their own enforcement actions, thereby precluding an independent private proceeding.
See Hallstrom v. Tillamook County,
Plaintiffs argue that Defendants nonetheless had “sufficient” notice, “in substance if
TV. Oil Spill Prevention and Response Act of 1991
The Texas Oil Spill Prevention and Response Act of 1991 (OSPRA) supports and implements the federal Oil Pollution Act of 1990, Pub.L. No. 101-380 (codified at 33 U.S.C. § 2701 et seq.) (OPA). See Tex.Nat. Res.Code Ann. § 40.002 (Vernon Supp.1993). Plaintiffs argue that this Act also provides an avenue through which they may recover attorney’s fees.
OSPRA establishes a “Coastal Protection Fund” to provide immediately available funds for the cleanup and payment of damages resulting from unauthorized oil discharges. Id. at § 40.151. The Act allows persons who incur response costs, or who are entitled to damages as a result of unauthorized discharges, to receive compensation from this state-administered fund. Id. at §§ 40.157 to 40.162. In turn, the persons responsible for the discharge are liable to the fund for these costs. Id. at §§ 40.201 to 40.205.
Even under the most liberal construction, this scheme of compensation from the fund is the only type of claim which OSPRA authorizes for private parties. The Act does not create an independent cause of action for private parties directly against the covered polluters. Rather, the Act specifically states:
The remedies in this chapter are cumulative and not exclusive. This chapter does not require pursuit of any claim against the fund as a condition precedent to any other remedy, nor does this chapter prohibit any person from bringing an action at common law or under any other law not inconsistent with this chapter for response costs or damages resulting from a discharge or other condition of pollution covered by this chapter.
Id. at § 40.256. Hence the Act preserves a complainant’s other remedies, but does not itself create a private cause of action. Therefore, while the Act does not bar the Plaintiffs’ action here, they must find their substantive remedies elsewhere.
V. Oil Pollution Act of 1990
A. Applicability: The Court does agree with the Plaintiffs, however, that the federal Oil Pollution Act affords them the substantive remedies sought here. The OPA provides a comprehensive regulatory and liability scheme governing all forms of petroleum pollution affecting the navigable waters of the United States, to the extent they are not covered by the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. (CERCLA). In general, the OPA dictates that “each responsible party for a ... facility from which oil is discharged, or which poses the substantial threat of a discharge of oil, into or upon the navigable waters or adjoining shorelines ... is liable for the removal costs and damages specified in subsection (b) that result from such incident.” 33 U.S.C.A. § 2702(a) (West Supp.1993). The damages referred to include “[djamages for injury to, or economic losses resulting from destruction of real or personal property, which shall be recoverable by a claimant who owns or leases that property.” Id. at § 2702(b).
A “facility” under § 2702 includes “any structure, group of structures, equipment, or device (other than a vessel) which is used for one or more of the following purposes: exploring for, drilling for, producing, storing, handling, transferring, processing, or transporting oil.” Id. at § 2701(9). This definition is more than broad enough to encompass all of the Defendant’s operations in the West Hastings Field. The “responsible party” for an onshore facility such as this one is “any person owning or operating the facility”; here, the Defendants.
The Defendants’ further maintain that the Act is inapplicable because Chigger and Co-wart Creeks are not themselves navigable waters. This argument, however, proposes an unduly narrow interpretation of the Act. The OPA is a remedial statute broadly designed to address the nationwide and pernicious threat to coastal waters posed by unnecessary pollution resulting from oil exploration activities. One need only stroll along the tar-covered beaches of Galveston Island to observe the extent and urgency of this threat. A construction of the statute which would limit its application strictly to pollutants discharged directly into navigable waters would unjustifiably thwart the Act’s aim of remediating all causes of this contamination. Indeed, under the Defendants’ interpretation, a polluter located directly on the ship channel could take itself out of the scope of the Act simply by removing its contaminating drain-pipe from its dock and placing it in the ditch running behind the plant, claiming that it is no longer directly discharging into navigable waters.
Such a narrow reading of the OPA would unnaturally distort the Act’s clear language. While the Act specifically provides for the liability of shore-based facility owners to the owners of real property damaged by the facilities’ pollutants, nowhere does it indicate a requirement that either the facility or the property be located adjacent to, or even near to, navigable waters. Rather, the only minimum nexus an incident must have to the coastline is that the facility “poses the substantial threat of discharge of oil, into or upon the navigable waters or adjoining shorelines.” Id. at § 2702(a). The West Hastings Field being located in the drainage basin of Clear Lake, it necessarily follows that any large-scale surface or near-surface discharges in the field pose a substantial threat to Clear Lake’s water quality.
The Court recognizes that this analysis becomes more difficult to apply as the subject oil fields become further from shore. At some point the fields’ arguable proximity to drainage systems which ultimately feed into navigable waters only after great distance will provide simply too remote a threat to bring the action within the strictures of the OPA. West Hastings, however, is not such a field.
B. Recovery Allowed: Unlike OSPRA, the OPA specifically creates a private right of action for direct recovery from the polluter by private claimants. The Act directs that all claimants shall, with certain permissive exceptions not applicable here, first present their claims for removal costs or damages to the responsible party. Id. at § 2713(a). If the person to whom the claim is presented denies liability for the claim, “the claimant may elect to commence an action in court against the responsible party____” Id. at § 2713(c). This Court has jurisdiction over such claims for discharges in this judicial district, without regard to the citizenship of the parties or the amount in controversy. Id. at § 2717(b).
Nowhere, however, does the Act explicitly use the phrase “attorney’s fees” in its description of private claimants’ rights to recovery. Rather, the Act describes the polluters liability to the claimant in terms of
The OPA holds responsible parties liable for “any removal costs incurred by any person for acts taken by the person which are consistent with the National Contingency Plan.” 33 U.S.C.A. § 2702(b)(1) (West Supp. 1993). At best, this provision is vague. The National Contingency Plan is the set of regulations governing the administration of the government’s response to environmental hazards. See 40 C.F.R. Part 300 (1992). The response plan for oil discharges is governed by Subpart D, 40 C.F.R. § 300.300 et seq., which, in general, outlines a four-phase response framework. Phase I requires any person in charge of a facility to notify the appropriate federal officials immediately upon discovery of an unlawful discharge. Id. at § 300.300(b). Any other person discovering an oil discharge is required to notify the National Response Center “as appropriate.” Id. at § 300.300(c). At Phase II, the federal coordinator is required to assess the magnitude of the threat and the feasibility of removal, identify the responsible parties, attempt to have the discharger commence voluntary removal actions, and otherwise “take appropriate response actions.” Id. at § 300.-305. Phase III directs the coordinator to pursue containment, cleanup, and disposal measures, and Phase IV governs documentation and cost recovery. Id. at §§ 300.310-315.
The National Contingency Plan being an administrative scheme, it is not entirely clear what actions a private litigant should take to be “consistent” with the Plan. The Fifth Circuit has recently held, under a similar provision of CERCLA, that the EPA acts “not inconsistent” with the Plan — and hence is entitled to recoup hazardous waste removal costs — when it takes actions which are not arbitrary or capricious.
In re Bell Petroleum Serv., Inc.,
Therefore, the Plaintiffs have incurred expenses for acts which are “consistent with” the National Contingency Plan, and under 33 U.S.C. § 2702(b)(1)(B) they are entitled to recover from the Defendants such expenses which qualify as “removal costs.” In cases concerning the substantial threat of a discharge of oil, qualifying expenditures include “the costs to prevent, minimize, or mitigate oil pollution.”
Id. at §
2701(31). It is true that this list does not include the phrase “including attorney’s fees.” And as discussed above, the American Rule does not allow courts to lightly infer the statutory allowance of attorney’s fees. To find statutory authorization, the Court must find more than “generalized commands,”
Runyon v. McCrary,
On the facts of this case, this Court finds that the comprehensive statutory structure of the OPA demands that the expenses the Plaintiffs have incurred in enforcing the Act’s provisions necessarily include their reasonable litigation expenses, including attorney’s fees. First of all, the Court notes that the posture of this case does not present the classic “fee-shifting” situation contemplated by the American Rule, in which attorney’s fees are simply part of the spoils of the victor. Rather, the litigation expenses incurred thus far by the Plaintiffs represent the most practical and efficient means by which individual citizens such as these could have exercised their right of private enforcement of the OPA. While the language of the OPA generally contemplates actions by parties who have already cleaned up a spill site and then seek reimbursement from the responsible party, such a course of action would be clearly beyond the resources of individual landowners seeking to clean literally hundreds of sites located across thousands of acres. Litigation in this case was the only viable means available to remove the contaminants, and the threat of contamination, from their land. To disallow the legitimate litigation expenses Plaintiffs thus incurred here solely to “prevent, minimize, or mitigate oil pollution,” simply on the basis that the phrase “attorney’s fees” is not enumerated in the statute, would be absurd.
Moreover, this Court would find that the removal costs allowed under the OPA would include attorney’s fees even in the typical post-cleanup reimbursement action. In interpreting a similar cost recovery provision under CERCLA, which also allows private parties an action for the recovery of response costs but does not explicitly allow attorney’s fees, the Eighth Circuit has reasoned:
Attorney fees and expenses necessarily are incurred in this kind of enforcement activity and it would strain the statutory language to the breaking point to read them out of the “necessary costs” that section 9607(a)(4)(B) allows private parties to recover. We therefore conclude that CERCLA authorizes, with a sufficient degree of explicitness, the recovery by private parties of attorney fees anji expenses. This conclusion based on the statutory language is consistent with two of the main purposes of CERCLA — prompt cleanup of hazardous waste sites and imposition of all cleanup costs on the responsible party. These purposes would be undermined if a non-polluter (such as [the plaintiff]) were forced to absorb the litigation costs of recovering its response costs from the polluter. The litigation costs could easily approach or even exceed the response costs, thereby serving as a disincentive to clean the site.
General Electric,
General Electric
has led to a split in Circuit authority on this issue under CERCLA, with the Sixth Circuit following its reasoning while the First, Ninth, and Tenth Circuits have declined to do so.
Donahey v. Bogle,
Finally, contrary to Defendants’ assertions, it is not a prerequisite to recovery of qualifying costs that Plaintiffs’ claims reach final adjudication, or even that they be judged the prevailing parties. Rather, “an action may be commenced under this sub-chapter for recovery of removal costs at any time after such costs have been incurred.” 33 U.S.C.A. § 2717(f)(2) (West Supp.1993). Therefore, it is not dispositive that the Plaintiffs have yet to achieve all of the relief pled for. To date, they have achieved a substantial portion of the relief they sought: further study of the effects on the environment of oil exploration in the West Hastings Field, and of the remediation required. Furthermore, evidence at trial suggested that the Defendants had plugged dozens of abandoned wells — another primary goal of the Plaintiffs — since the commencement of this lawsuit. Where a defendant voluntarily complies with the demands of the plaintiff in an environmental lawsuit, of course, it is fair to infer that the litigation provided the catalyst for this action, making an award of attorney’s fees appropriate.
See Atlantic States Legal Found, v. Eastman Kodak,
VI. Reasonableness of Fees and Costs
A. Attorney’s Fees: Given the extensive experience of Plaintiffs’ lead counsel, Alton C. Todd, as well as his exceptional abilities, and the complexity of this litigation, the Court finds that a reasonable fee for Mr. Todd’s services is $300 per hour. Likewise, the Court finds that the suggested hourly rates of Mr. Todd’s associates and assistants are reasonable. Because of the number of plaintiffs represented by Mr. Todd, the numerosity of and geographical area covered by the oil wells at issue, the complexity of the legal questiops at issue, and the extent and difficulty of discovery in this case, the Court also finds that the time devoted to this case by Plaintiffs’ counsel was reasonable. Finally, the Court finds that the nature of these efforts render the time incapable of severance as between either the individual Plaintiffs or Defendants.
However, the Court notes that it is awarding these fees as “removal costs” under the Oil Pollution Act of 1990 (OPA), which did not take effect until August 18, 1990. In particular, the portion of the Act giving rise to a private cause of action states: “Nothing in this title shall apply to any cause of action or right of recovery arising from any incident which occurred prior to August 18,1990.” 33 U.S.C. § 2717(e). The applicability of this provision to the case at bar, which concerns intermittent and ongoing pollution taking place both before and after the OPA’s enactment, is unclear. Furthermore, the Court has found no relevant authority to guide its interpretation of this provision. However, the Court finds that the language of the statute evinces a disclaimer of retroactivity sufficient to preclude the award of removal costs incurred prior to its enactment date.
Cf. Bradley v. Richmond School Bd.,
Accordingly, the Court awards attorney’s fees as follows:
Alton Todd: 758.25 hrs @ $300/hr $227,475.00
Steve Crenshaw: 255.00 hrs @ $150/hr 38.250.00
Andrew Siebert: (law clerk) 187.00 hrs @ $ 75/hr 14.025.00
Cathy Sellenriek: (legal assistant) 808.60 hrs @ $ 60/hr 48.516.00
Total: $328,266.00
B. Expenses: The Court finds that the following expenses were reasonable and necessary to achieve the results obtained by Plaintiffs thus far:
Expert Witnesses: $203,949.41
Graphics: 16,796.93
Witness Fees (4): 120.00
Court Costs/Subpoenas: 538.00
Courier and Freight Services: 2,356.30
Depositions: 34,890.60
Investigators: 6,195.00
Records: 405.90
Documents: 30,828.94
Miscellaneous: 10,752.68
Total: $315,875.99
Under the heading “miscellaneous,” the Court has disallowed expenses for general legal texts and for bar admission fees: clearly, these are simply overhead costs. The Court also has disallowed a $3,000 expense to Synectics listed under this category; Plaintiffs included no supporting receipt or other explanation of this charge, and it appears to be the same amount as a deposit to that company which is included in the amount billed as “graphics.” If this is true, granting this charge would lead to a double recovery of this amount. The Court also will not grant Plaintiffs reimbursement for the expenses listed in their application under “Long Distance Telephone” or “Travel,” as Plaintiffs offered no explanation of any these charges by which the Court could determine their reasonableness. As none of the expenses pre-date the enactment of the OPA, however, none will be excluded on this basis.
Defendants argue that expert witness fees are not recoverable because the Supreme Court has rejected the characterization of this expense as an integral part either of statutory “attorney’s fees” or “costs.”
See West Virginia Univ. Hosp. v. Casey,
Defendants also object to the inclusion of certain expert witness fees which Plaintiffs had allegedly “agreed to absorb.” Defendants base this argument on a letter in which Mr. Todd agreed to “be responsible for” the expenses of Defendants’ experts when he deposed them. The Court is of the opinion, however, that the only reasonable interpretation of this letter is that Mr. Todd agreed to
******
Accordingly, the Court GRANTS the Plaintiffs’ application for attorney’s fees and expenses, as specified above. Having found the award of litigation expenses to be appropriate under the OPA, the Court need not reach the issue of the propriety of a fee award under Plaintiffs’ breach of contract claims. The Court also finds that there is no just reason for delaying the entry of judgment on this claim, and therefore ORDERS that Plaintiffs’ interim claim for attorney’s fees and expenses through November 19, 1993, be severed and final judgment entered pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. To the extent any such leave is necessary, the Court grants the parties full leave to immediately appeal this Order to the United States Fifth Circuit Court of Appeals, should they choose to do so. The parties are further ORDERED to file no further pleadings on this issue in this Court, including motions to reconsider or the like. Instead, the parties should seek any further relief to which they feel themselves entitled in the United States Court of Appeals for the Fifth Circuit, as may be appropriate in due course.
IT IS SO ORDERED.
FINAL JUDGMENT
For the reasons stated in the accompanying Order of this date, the Court now enters Final Judgment as to the claim of the Plaintiffs in this cause for attorney’s fees and expenses incurred before and through November 19, 1993.
It is ORDERED that Plaintiffs, through their attorney Alton C. Todd, recover of the Defendants, jointly and severally, the sum of $644,141,99. for attorney’s fees and expenses incurred before and through November 19, 1993, with interest thereon at the rate of 3.40 per cent per annum, as provided by law.
This judgment does not affect any other claims of any parties.
THIS IS A FINAL JUDGMENT.
IT IS SO ORDERED.
Notes
. These cases pre-dated the Equal Access to Justice Act, Pub.L. No. 96-481 (1980); hence, the theory of this exception did not apply to government defendants which enjoyed sovereign immunity to money damages.
. Similarly, Congress quickly acted to legislatively overrule Supreme Court decisions which rejected the private attorneys general theory in civil rights cases, see Pub.L. No. 94-559, 90 Stat. 2641 (1976) (codified as amended at 42 U.S.C. § 1988), and which subsequently excluded the recovery of expert witness fees from that attorney's fees provision, see Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1074.
. See, e.g., Toxic Substances Control Act, 15 U.S.C. § 2619; Safe Drinking Water Act, 42 U.S.C. § 300j-8; Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. § 6972.
. This finding also negates Defendants' argument that the OPA is inapplicable because it became effective the month after the Plaintiffs commenced this lawsuit. The injunctive relief ordered by the Court concerns the ongoing threat of environmental contamination, not past occurrences. The enactment date may, however, limit the recoverable removal costs according to the dates on which they were incurred.
. The
Bell Petroleum
court followed the Tenth Circuit’s decision in
United States v. Hardage,