FOIA Denials Cost EPA|$170,000 in Legal Fees


     SAN FRANCISCO (CN) – The U.S. Environmental Protection Agency must pay $170,000 to Sierra Club attorneys who sought records about EPA oversight of coal-fired power plants, a federal judge ruled.
     The Sierra Club and Environmental Integrity Project filed a Freedom of Information Act request in February 2010, seeking roughly 350,000 pages on to the EPA’s oversight of Texas-based Luminant Generation Company’s coal-fired power plants.
     Among other things, the groups sought documents about air emissions at Luminant’s facilities, its federal, state, and local permits, and the types of fuel used at its power plants. The environmentalists thought this information would prove that one of Luminant’s Texas plants was violating the Clean Air Act .
     In April 2012 the EPA provided some of the requested documents, but refused to deliver others, claiming they contained Luminant’s confidential business information.
     The groups appealed, claiming that the EPA could not prove that any of the requested documents contained confidential information and had no right to deny access to them.
     They also claimed the EPA failed to specify a date when it would issue its final determination on the matter.
     They sued in February 2011. After good-faith negotiations, the parties settled in October 2013 in an agreement signed by U.S. Magistrate Judge Maria-Elena James.
     Under the agreement, the groups agreed to withdraw their original request and submit a narrowed request. In turn, the EPA had 140 days to process the new request and hand over all documents that were applicable and non-exempt under the FOIA.
     The EPA ultimately released 44,000 pages and 61 of the 65 requested documents, and the groups agreed to dismiss the case in March this year.
     In June, the groups sought $187,906.06 in attorneys’ fees and costs.
     Judge James found Monday that the groups can recover attorneys’ fees because they are the prevailing party by way of a judicial order.
     In arguing that the Sierra Club was not a prevailing party, the EPA claimed that the group lacked standing because it was not a party to the original FOIA request.
     The groups argued that the EPA acknowledged the Sierra Club’s inclusion as a party to the case by, among other things, naming it as a party in its denial letter of the request, acknowledging that it had appealed the denial in a timely manner, and communicating with the Sierra Club’s attorney about the request.
     James agreed that the EPA’s correspondence with the Sierra Club demonstrates that it considered the group a party to the request.
     She rejected the EPA’s argument that the groups cannot collect attorneys’ fees because the court did not find the agency liable on any of the groups’ claims.
     The June 2011 stipulation “changed the legal relationship of the parties” by requiring the EPA to turn over all documents from which Luminant had withdrawn its claims of exemption by July 2011 at the rate of 1,600 pages a week, according to the ruling.
     “Although the parties agreed on the deadlines, the fact that the court required production by a specific date changed the legal relationship between the parties and therefore qualifies plaintiffs as eligible for fees,” James wrote.
     Attorney’s fees are appropriate because the EPA could not prove a reasonable basis for its delay in responding to and processing the groups’ documents request, the ruling states.
     The groups demonstrated that their request served a public benefit and that they did not have a commercial interest in the documents, but wanted the information to ensure that Luminant complied with the Clean Air Act and to “educat[e] the public on health problems that arise from environmental pollutants,” according to the ruling. Instead of the $187,906.06 demanded, however, the groups will take home a total award of $169,633.56
     James found that the groups were not eligible to recover fees for time looking over the documents after they received them, as this “is properly characterized as post-relief activity, separate from the litigation.”
     She further reduced the award because the groups could not explain why one of their allegedly experienced attorneys needed 61.8 hours to work on the groups’ motion for summary judgment and reply.
     The final reward reflects the fair open market hourly billing rate for the work each attorney did on the case as well as $1,923.56 in legal costs, James said.

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