Earth Island Institute, Inc. v. Southern California Edison Co.

838 F. Supp. 458, 24 Envtl. L. Rep. (Envtl. Law Inst.) 20639, 94 Daily Journal DAR 1692, 38 ERC (BNA) 1414, 1993 U.S. Dist. LEXIS 16742, 1993 WL 485589
CourtDistrict Court, S.D. California
DecidedNovember 19, 1993
DocketCiv. 90-1535-B(BTM)
StatusPublished
Cited by9 cases

This text of 838 F. Supp. 458 (Earth Island Institute, Inc. v. Southern California Edison Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Earth Island Institute, Inc. v. Southern California Edison Co., 838 F. Supp. 458, 24 Envtl. L. Rep. (Envtl. Law Inst.) 20639, 94 Daily Journal DAR 1692, 38 ERC (BNA) 1414, 1993 U.S. Dist. LEXIS 16742, 1993 WL 485589 (S.D. Cal. 1993).

Opinion

ORDER AWARDING ATTORNEYS’ FEES TO PLAINTIFFS IN THE AMOUNT OF $1,408,594.94

BREWSTER, District Judge.

In the above captioned case, plaintiffs have moved the court for its approval of a $2 million attorneys’ fees award. On April 19 and 21, 1993, and again on September 20, 1993, hearings were held before the Honorable Rudi M. Brewster. At the first hearing, Charles S. Crandall, Esq., of Milberg Weiss •Bershad Specthrie & Lerach (“Milberg Weiss”) appeared for plaintiffs; Arthur L. Sherwood, Esq., of Gibson, Dunn & Crutch-er, appeared for defendant, and Mark R. Haag, Esq., of the United States Department of -Justice, Environment & Natural Resources Division, appeared by telephone. 1 At the second hearing, Mr. Crandall and Thomas D. Mauriello, Esq., of Milberg Weiss appeared for plaintiffs; Mr. Sherwood and John Stuart Tinker, Esq., of Southern California Edison Company (“SCE”), appeared .for defendant, and Mr. Haag appeared by telephone. At the third hearing, Mr. Crandall and Pamela. M. Parker, Esq., of Milberg Weiss appeared for plaintiffs; ■ Mr. Sherwood and Nino J. Mascolo, Esq., of SCE, appeared for defendant, and Mr. Haag and Mary St. Peter, Esq., of the Environmental Protection Agency (“EPA”), appeared by telephone.

I. BACKGROUND

A. Nature of the Case

This action arose out of defendant SCE’s operation of the San Onofre Nuclear Generating Station (“SONGS”). On November 8, 1990, Plaintiffs Earth Island Institute, Inc. (“Earth Island”), Donald May and David Jeffries filed suit against defendant for alleged violations of the Federal Water Pollution Control Act (“Clean Water Act”), 33 U.S.C. §§ 1251 et seq. (West 1986 & Supp.1993), and for nuisance. Plaintiffs sought declaratory and injunctive relief, the .imposition of statutory civil penalties, other compensatory and punitive damages, the establishment of an environmental trust fund, and attorneys’ fees and expenses.

B. Primary Issue — the Cooling Process

The SONGS consists of three nuclear power plant “Units,” which generate electrical power using pressurized water nuclear reactors. These reactors boil fresh water which is obtained from the Pacific Ocean and contained in a closed loop. The steam created by this process drives the turbines and is then cooled by ocean water. The cooling water intake structures are located approximately 3,000 feet offshore. Together, the intakes collect two million gallons of water each minute. After the ocean water has performed its cooling function, it is returned to the ocean through conduits located approximately 2,500 feet offshore.

*461 As a prerequisite to construction of .Units 2 and 3, SCE was required to obtain two types of permits. First, pursuant to the Clean Water Act and California’s Porter-Cologne Water Quality Control Act (the “Porter-Cologne Act”), CahWater Code §§ 13000 et seq. (Deering 1993), SCE was required to obtain National Pollutant Discharge Elimination System (“NPDES”) permits from the California Regional Water Quality Control Board (“Regional Board”). 2 Second, pursuant to the California Coastal Zone Conservation Act of 1972 (“Coastal Act”), Cal.Pub.Res.Code §§ 27000 et seq. (Deering 1993), SCE was required to obtain permits from the California Coastal Commission (“Coastal Commission”).

The Coastal Commission would not issue permits for the construction of Units 2 and 3 until SCE proved that its proposed facility would not have any substantial adverse environmental or ecological effects. After much public debate, in 1974 the Coastal Commission granted the permit under express conditions: (1) that SCE conduct a comprehensive and continuing study of the marine environment offshore from the San Onofre facility, and (2) that SCE modify the facility’s cooling system should the study at any time reveal that regulatory requirements were being violated or that marine life was subject to substantial adverse effects.

To supervise this study, the Coastal Commission created the Marine Review Committee (“MRC”), comprised of three representatives — one chosen by SCE, one by the environmental community and one by the Commission. The MRC enlisted numerous scientists and engineers to assist in the study.

Meanwhile, from the late 1970s until the present litigation, plaintiff Donald May urged the state and federal governments to undertake enforcement action against SCE for what he claimed were serious violations of environmental .regulatory standards. In 1989, May allegedly sought the assistance of more than a dozen attorneys, law ñrms and public interest organizations in bringing a citizen enforcement suit, but none would assist him. Finally, in late 1989, the law firm of Milberg Weiss agreed to take the case.

In August 1989, the MRC completed its Final Report. In the 346 page Report, the MRC concluded that SONGS was causing substantial adverse ecological and environmental effects. Final Report of the Marine Review Committee to the California Coastal Commission, August 1989, .MRC Document No. 89-02. It found that SONGS met the regulatory standards for temperature and metals, but not for natural light and marine organisms. Id. at 17-18. It also found that the SONGS’ intake and discharge mechanisms create substantial turbidity which blocks sunlight necessary for the growth of kelp. Id. at 7, 101-128. Fish and other marine life dependent on kelp are, in turn, adversely affected. The MRC found that turbidity is responsible for an approximate 60% reduction in the size of the kelp bed. Id. at 7. The Report’s Summary stated:

The plant kills large numbers of organisms in its intake cooling'water, and sometimes moves turbid water into the San Onofre kelp bed (SOK).
The MRC has measured adverse effects on the kelp community in [the] San Onofre kelp bed, including giant kelp, fish, and large benthic invertebrates. These effects, although local, are deemed substantial because kelp is a valuable and limited habitat.
The MRC calculates that there is a substantial impact on the standing stock of a number of midwater fish populations in the Southern California Bight. The reductions in standing stock are probably between one and ten percent. Because the effects can occur over large populations, we conclude they are substantial.
The MRC has also measured a reduction in the local abundance of some midwater fish populations. In addition, SONGS kills at least 20 tons of fish per year in its intake system.
The MRC analyzed a range of options for preventing,, reducing, or mitigating these impacts, and presents two sets of options to the Commission. Option la is cooling towers; ... Option lb is moving *462 the discharges; the MRC recommends against this option. The MRC recommends acceptance of option 2,-

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838 F. Supp. 458, 24 Envtl. L. Rep. (Envtl. Law Inst.) 20639, 94 Daily Journal DAR 1692, 38 ERC (BNA) 1414, 1993 U.S. Dist. LEXIS 16742, 1993 WL 485589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/earth-island-institute-inc-v-southern-california-edison-co-casd-1993.