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NEIGHBORHOOD PRESERVATION COALITION v. CLAYTOR

December 30, 1982

NEIGHBORHOOD PRESERVATION COALITION, et al.
v.
H. GRAHAM CLAYTOR, et al.



The opinion of the court was delivered by: GREEN

 GREEN, J.

 Concerned with the environmental and aesthetic effects of highway construction in an historic area of the City of Philadelphia, plaintiffs, the Neighborhood Preservation Coalition (NPC), Henry Cianfrani and Samuel Rappaport, brought this action against the Secretaries of Transportation for the United States and the Commonwealth of Pennsylvania in July of 1973. Plaintiffs sought a declaratory judgment proclaiming that the defendants violated numerous federal and state constitutional and statutory provisions by taking and permitting steps toward the construction of approximately two miles of federal interstate highway (I-95) within the Society Hill and Queens Village sections of the City of Philadelphia. Plaintiffs also sought an injunction preventing the defendants from continuing to construct this section of I-95 until they were in full compliance with the relevant constitutional and statutory provisions and prohibiting the defendants from opening completed ramps on I-95 near Moore and Morris Streets in Philadelphia. For approximately one and one-half years, the parties engaged in extensive negotiations aimed at resolving their differences.

 On December 22, 1975, this court permitted the City of Philadelphia to intervene as a defendant in this case. On December 29, 1975, this court approved a Final Judgment by Consent (Consent Decree) with regard to the aforementioned sections of I-95. Under the Consent Decree, defendants could construct all portions of I-95. However, the building of several interchange ramps along Front Street was conditioned upon the completion of specific procedures to determine the access needs between the Benjamin Franklin and Walt Whitman Bridges and the economic, social and environmental effects of means proposed to meet those needs. The parties agreed that the results of the study of access needs would be evaluated in accordance with the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. (1980) and appropriate parts of the Code of Federal Regulations. The parties also agreed to meet several times during the study of the access needs. Moreover, defendant Pennsylvania Department of Transportation (Penn Dot) agreed to secure the services of an independent noise consultant, to meet periodically with plaintiffs and the consultant, and to monitor vibrations at sites considered critical and particularly susceptible to damage from vibration. Mindful of the valuable historic area involved, the defendants agreed to manage construction activities so as to preserve the safety, peace and quiet, and environmental quality of adjacent buildings and neighborhoods. The court retained jurisdiction to enable the parties to the Consent Decree to apply to it for further orders, directions, or modifications.

 Now before me are plaintiffs' motion for attorneys' fees, defendants' responses thereto, and plaintiffs' reply brief. Plaintiffs assert entitlement to fees on both statutory and common law grounds. Having considered the parties' briefs and having heard their arguments in open court, I conclude that plaintiffs are not entitled to counsel fees under any of the proffered theories. Accordingly, I will deny plaintiffs' motion.

 Under the "American Rule", absent either a statutory or contractual provision for the award of fees or an exception to the rule, litigants bear their own attorneys' fees. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717, 18 L. Ed. 2d 475, 87 S. Ct. 1404 (1967). The plaintiffs claim entitlement to counsel fees pursuant to a statutory provision, i.e., the 1977 amendments to the Clean Air Act (Act), which are codified at 42 U.S.C. § 7604. In pertinent part, § 7604(a) provides

 
Any person may commence a civil action on his own behalf -- (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to be in violation of (A) an emission standard or limitation under this chapter . . . . The district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an emission standard or limitation . . . .

 Id. As § 7604(d) states, a court which issues a final order in any action brought pursuant to subsection (a) may award costs of litigation, including reasonable counsel fees, to any party whenever the court deems such an award appropriate. Id. § d. However, defendants assert that the 1977 amendments are not pertinent to this case because they were enacted after the Consent Decree was approved.

 First, plaintiffs rely on dicta in Natural Resources Defense Counsel v. EPA, 484 F.2d 1331 (1st Cir. 1973), where the petitioners sought counsel fees for their efforts in obtaining the compliance of the EPA with the Act, and Friends of the Earth v. Carey, 535 F.2d 165 (2d Cir. 1976), a suit to enforce a state air pollution abatement plan. This dicta, however, is not particularly persuasive because those cases were brought pursuant to a subsection of the Act which is not relevant to the instant case. Plaintiffs also urge the court to disregard the restrictive definition of emission standard or limitation suggested by the 1970 Act and adopted in Citizens of Georgetown v. Washington, 175 U.S. App. D.C. 356, 535 F.2d 1318 (D.C. Cir. 1976), where plaintiffs sought to enjoin the completion of two office buildings until air quality permits were obtained. The Court of Appeals for the District of Columbia Circuit held that § 7604 confers jurisdiction only over suits against polluters and that the allegations did not "satisfy the statutory requirement that the government instrumentality be alleged to be in violation of an 'emission standard or limitation.'" Id. at 1320-21. *fn1" Finally, plaintiffs cite 42 U.S.C. § 7604(f), another of the 1977 amendments to the Act, in which the definition of emission standard or limitation was expanded to include "any condition or requirement under an applicable 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. *fn2" 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). *fn3" For purposes of a fee award, ...


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