implementation plan relating to transportation control measures, [or] air quality maintenance plans . . . ."
Defendants note that the 1977 amendments to the Act were promulgated five years after the Federal Highway Authority approved the Final Environmental Impact Statement concerning I-95, four years after plaintiffs instituted this action, and two years after the parties entered into the Consent Decree. Thus, defendants believe that this court should decide the instant motion based upon the provisions of the 1970 Act and the case law relevant thereto, rather than the 1977 amendments. Because the legislative history does not reveal any congressional intent to give the 1977 amendments retrospective effect, I agree that the pre-amendment Act controls the disposition of the instant motion.
Before the 1977 amendments, indirect sources of pollution were not mentioned in the Act.
Brown v. EPA, 566 F.2d 665, 670 (9th Cir. 1977). The mere building, owning or managing of highways was not deemed to make the state or federal government a polluter within the meaning of 1970 Act. Id. Accord United States v. Ohio Department of Highway Safety, 635 F.2d 1195, 1204 (6th Cir. 1980). Since the defendants are not polluters within the meaning of the 1970 Act, I find no statutory justification for awarding counsel fees against them.
Plaintiffs also claim entitlement to counsel fees under the common benefit and bad faith exceptions to the American rule. Plaintiffs concede that, absent a statutory basis, 28 U.S.C. § 2412 prohibits the recovery of attorneys' fees from the United States. The court has found that no such statutory basis exists. Accordingly, plaintiffs cannot recover fees against the United States under either common law theory. Nevertheless, the court must decide whether either common law theory provides a basis for recovery against the state or city.
Fee awards under the common benefit exception require a two tier analysis. The threshold requirement is that plaintiffs be declared a prevailing party in this action. It is of no moment that the plaintiffs did not obtain a declaratory judgment or injunction against the defendants, for "attorneys' fee awards can be awarded to parties who do not ultimately obtain the whole relief sought . . . ." NAACP v. Wilmington Medical Center, Inc., 689 F.2d 1161, 1167 (3d Cir. July 29, 1982).
For purposes of a fee award, plaintiffs may be considered a prevailing party as long as they achieved some of the benefits sought in bringing this lawsuit. Id., slip op. at 11 - 12.
Plaintiffs instituted this action in an attempt to decrease the noise and air pollution attendant to the construction and operation of I-95, to protect valuable old buildings from damage due to vibration, and to assure the continued aesthetic appeal and historic value of their neighborhood. Inasmuch as several provisions of the Consent Decree speak to these concerns, plaintiffs undeniably achieved some of the benefits they sought. Accordingly, this court concludes that plaintiffs are a prevailing party.
At the core of cases in which courts have decided to exercise their discretionary equitable powers by awarding fees to plaintiffs under the common benefit exception is a sense that it would be unjust to force plaintiffs to bear all the fees for litigation which has benefited others.
Thus, under the second requirement of this exception, plaintiffs must be found to have conferred a common benefit on an ascertainable class of persons by bringing a lawsuit which protected a fund or property in which these persons have an interest. Mills v. Electric Auto-Lite Co., 396 U.S. 375, 24 L. Ed. 2d 593, 90 S. Ct. 616 (1970). Plaintiffs submit that this litigation "has been enormously expensive and has benefited a great number of people." Plaintiffs' Brief at 20. Plaintiffs further claim that a sizable segment of the city and state citizenry, i.e., the fifteen thousand residents of the neighborhoods affected by this litigation, has directly and substantially benefited from it, while the four and one-half million residents of metropolitan Philadelphia and "untold numbers of general public throughout Pennsylvania and the United States" derived pleasure from the maintenance of the history, character, and environment of the area. Id. at 25-26. Plaintiffs argue alternatively that they are seeking counsel fees, "through the Commonwealth of Pennsylvania and the City of Philadelphia, [from only] those identifiable fifteen thousand persons . . . residing in the vicinity of the ramps and thruways of I-95 who have benefited most substantially." Id. at 26.
Defendants contest plaintiffs' assertions on a number of grounds. First, they submit that the common benefit exception should not be applied to the case at bar because plaintiffs claim to represent a broad, nebulous, and therefore unascertainable group. More specifically, defendants advert to the difficulties in determining the ultimate beneficiaries of this case. See Harrisburg Coalition Against Ruining the Environment v. Volpe, 381 F. Supp. 893 (W.D. Pa. 1974); LaRaza Unida v. Volpe, 57 F.R.D. 94, 97 (N.D. Cal. 1972). Since plaintiffs have vindicated their own rights, but not those of every citizen of Philadelphia and Pennsylvania, defendants also contend that the rationale for awarding counsel fees in labor law, civil rights, and stockholders' derivative suits
does not apply here. Moreover, defendants suggest that, by awarding fees in a case such as this, the court would open the sluicegates for environmental litigation to such a great degree that few construction projects would ever be completed. Finally, defendants argue that the eleventh amendment to the United States Constitution bars the award of counsel fees against the Commonwealth of Pennsylvania.
Defendants distinguish the cases upon which plaintiffs rely. For example, Mills was a stockholders' derivative suit in which the defendant was a corporation whose shareholders were enriched by the litigation. 396 U.S. at 392. Thus, fairness dictated that the defendant bear the cost of the litigation. Similarly, in Hall v. Cole, the Court declared that, by vindicating his right to free speech, the respondent union member rendered a great service to his union and to all of its members. 412 U.S. at 8. I agree with defendants that the beneficiaries and benefits in Hall and Mills are distinct from those in the instant case. Here, plaintiffs claim the right to fees from only fifteen thousand people, but seek to tap state and city coffers. Moreover, many community groups and individuals in Philadelphia openly and vehemently opposed plaintiffs' actions. The benefits achieved by plaintiffs burdened other city and state residents who wanted I-95 to be completed swiftly. This was a decidedly different situation from that in Mills and Hall.
In addition, defendants rely on Harrisburg Coalition, a case very similar to the instant one, in which a community group and other individuals attempted to enjoin the construction of a highway network through a city park. Plaintiffs sought counsel fees after the court had dismissed the complaint in part, issued a temporary injunction, remanded the matter to the state Secretary of Transportation and approved a consent judgment. 381 F. Supp. at 894-96. Judge Nealon found that the common benefit doctrine would "not mold itself" around a case in which the class of citizens directly affected by litigation was but a small fraction of those who would be indirectly assessed. Id. at 896. Furthermore, the court concluded that 28 U.S.C. § 2412 prohibited an award of counsel fees against the United States, that, absent a waiver of immunity, the eleventh amendment barred such an award against the state,
and that fairness precluded an award against the city where, as here, the "brunt of this litigation was aimed at the federal and State defendants." Id. at 899-900. Accordingly, the court did not award counsel fees to plaintiffs.
The facts in Harrisburg Coalition are very similar to those in the case sub judice. Moreover, I find the analysis of Judge Nealon thorough and very persuasive. Because I agree with Judge Nealon's conclusion that the common benefit exception should not be applied under the instant circumstances, I, too, decline to award counsel fees to plaintiffs based on that theory.
Finally, plaintiffs assert entitlement to counsel fees on account of defendants' bad faith. The Third Circuit has held that prelitigation obduracy, bad faith, or vexatious conduct during the course of litigation may form the basis for an award of fees against the sovereign. Skehan v. Board of Trustees, 538 F.2d 53 (3d Cir. 1976). However, there is no evidence that the federal, state, or city defendants acted obdurately or in bad faith at any time during these proceedings. Accordingly, I find no basis for awarding fees on this ground.
AND NOW, this 30th day of December 1982, the court concludes that plaintiffs are not entitled to an award of counsel fees based on either the statutory or common law theories asserted. Accordingly, IT IS ORDERED that plaintiffs' motion for counsel fees is DENIED.