United States v. Comunidades

• Court: Court of Appeals for the First Circuit
• Decided: February 28, 2000
• Docket: 99-1752
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 99-1752



                    UNITED STATES OF AMERICA,



                       Plaintiff, Appellee,



                                v.



           COMUNIDADES UNIDAS CONTRA LA CONTAMINACION,



                 Plaintiff-Intervenor, Appellant,



                               v.

                                

             PUERTO RICO ELECTRIC POWER AUTHORITY,

                                

                      Defendant, Appellee.


APPEAL FROM THE UNITED STATES DISTRICT COURT

                                

                FOR THE DISTRICT OF PUERTO RICO

                                

       [Hon. Carmen Consuelo Cerezo, U.S. District Judge]


Before

                                

                      Selya, Circuit Judge,

          Coffin and Campbell, Senior Circuit Judges.


Ana L. Toledo for appellant.

     Mark R. Haag, Attorney, Department of Justice, Environment &

Natural Resources Division, with whom Lois J. Schiffer, Assistant

Attorney General, Peter Flynn and Andrew Mergen, Attorneys,

Department of Justice, Environment & Natural Resources Division

were on brief for the United States.

     Melissa H. Maxman with whom Sandra A. Jeskie, Lawrence W.

Diamond, Marco A. Gonzalez, Terry Philip Segal, Richard M. Wong,

and John Uphoff-Figueroa were on brief for Puerto Rico Electric

Power Authority.


February 25, 2000


COFFIN, Senior Circuit Judge.  This is an end note to wide-

ranging, lengthy, and technically complex litigation begun in 1993

by the United States against the Puerto Rico Electric Power

Authority (PREPA) for violations of some five federal environmental

statutes committed at its four electric generating power plants and

one transmission center.  The two parties finally succeeded in

negotiating an agreement that was converted by district court

approval into a consent decree in 1999.  

     In the course of the proceedings, an organization named

Comunidades Unidas Contra la Contaminacion (CUCCo), representing

the inhabitants of Catano, a center of concentration of various

industrial facilities and two of PREPA's plants, felt that its

interests were not being sufficiently protected and successfully

sought intervention as a party in 1996.  Although denied an

evidentiary hearing, it submitted voluminous comments addressing

flaws in the proposed consent decree.  Many of its comments, which

fell under the Clean Water Act, were accepted in the decree's final

version, but CUCCo's request for counsel fees was summarily denied.

     The issues raised by CUCCo on appeal are: (1) whether the

district court erred in refusing to hold an evidentiary hearing on

the adequacy of the decree; (2) whether it erred in failing to

state reasons why it deemed the decree to be fair, reasonable, and

consistent with the objectives of the relevant legislation; and (3)

whether the court erred in denying counsel fees to CUCCo.  



                      I.  Factual Background

     A brief synopsis of the case, insofar as is relevant to these

issues, is as follows.  The government's suit charged PREPA's four

plants and its transmission center with violating air quality and

emissions limitations of the Clean Air Act, 42 U.S.C.  7401-7431;

Clean Water Act National Pollutant Discharge Elimination System

requirements, 33 U.S.C.  1311, 1342, and oil pollution

regulations, 33 U.S.C.  1321; various reporting requirements

relating to hazardous substances required by the Emergency Planning

and Community Right-to-Know Act, 42 U.S.C.  11004, 11022, and the

Comprehensive Environmental Response, Compensation, and Liability

Act (CERCLA), 42 U.S.C.  9603; and underground storage tank

requirements of the Resource Conservation and Recovery Act, 42

U.S.C.  6991b.  Civil penalties and injunctive relief were sought.

     By 1995, negotiations between the United States, through the

Environmental Protection Agency (EPA), and PREPA had evolved such

that the parties urged the district court to revise the litigation

schedule to focus on settlement.  A year later, in April of 1996,

unsatisfied with the progress, CUCCo moved to intervene and

participate in settlement negotiations.  The district court granted

the motion to intervene, reserving a decision as to the extent of

intervention to be allowed.

     In January of 1997, the United States filed a proposed consent

decree, which contemplated settlement of all of its claims and

included compliance schedules, civil penalties, and environmental

improvement projects.  CUCCo objected immediately and sought

rejection, because it had not been allowed to participate in the

negotiations.  The court, on February 7, 1997, denied the motion,

indicated that CUCCo should submit its comments during the public

comment period, and added that CUCCo, having been granted

intervenor status, was more than "a mere spectator," and, if any of

its concerns remained unanswered after conclusion of the public

comment process, there would be an "opportunity to raise its

objections directly before the Court at an evidentiary hearing to

be scheduled, if and when the need arises."   Shortly thereafter,

in response to a government motion for clarification, the court

said that its final decision regarding an evidentiary hearing was

within its discretion--in other words, it would "allow the

opportunity for a hearing if fairness requires it."

     An expanded period of 140 days for public comment then

followed, which ended on June 25, 1997, and drew only 5 commentors. 

CUCCo submitted over 50 pages of comments on Clean Air Act issues,

among other commentary, together with attachments of 700 pages; its

expert, Servicios Cientificos y Tecnicos, submitted on CUCCo's

behalf a 23 page study addressing Clean Water Act issues; the

United States Fish and Wildlife Service made largely the same

points as Servicios; one individual took a position diametrically

opposed to CUCCo, arguing that the proposed decree was too severe

in requiring a sulfur limitation for boiler emissions of 1.5%; and

another individual simply endorsed the Land Acquisition Project to

acquire and preserve a parcel of ecologically vulnerable land in

the Catano area.    

     Thereupon, the United States and PREPA undertook to consider

the comments and renegotiate.  There were meetings, telephone

conferences, and correspondence with CUCCo and others.  Technical

personnel, explanatory material, and documents were made available. 

CUCCo's comments, challenging the decree's Clean Air Act compliance

provisions, the Land Acquisition Project, the settlement process,

community participation, and refusal to lower the sulfur content of

boiler fuel to 0.5% by weight were addressed and rejected in an EPA

response of some 55 pages.  

     The submission of Servicios Cientificos y Tecnicos on behalf

of CUCCo, however, received a largely favorable response of 21

pages with an 18 page tabular attachment from EPA.  Servicios,

addressing Clean Water Act issues, had made the point that a large

number of interim thermal discharge effluent limits were too high. 

In many instances, for example, PREPA's plants had already reduced

the effluent discharge below the proposed interim limits which were

to govern until the final limits became applicable.  EPA agreed

that a number of interim limits were not restrictive enough.  It

had begun to review these limits shortly after receiving the oral

comments that followed the lodging of the proposed decree and had

effected "often significant reductions of maximum allowable

effluent discharge during the 'interim' period prior to the time

when final compliance with the underlying NPDES permit is

required." 

     EPA agreed that blind adherence to a particular statistical

method was unwise and that its approach must be tempered by the

best engineering and scientific judgment.  It eliminated, as

unfairly affecting a limits determination, high data points for

which there were no explanation.  It included, as urged, newly

available data for 1996, and it eliminated interim limits more

lenient than the existing underlying permit limits.  It also

pointed out that, by the time the revised interim limits had been

negotiated and included in the proposed final decree, they would

apply for only a limited time, expiring for the most part in April

1999.  There was, however, one important exception:  the interim

limits for such discharges at the San Juan plant would be effective

indefinitely, subject to later statutory proceedings relating to an

application for waiver.

     In sum, of the 81 interim effluent limits appearing in the

initial proposed consent decree, 18 were eliminated entirely, while

46 of the remaining 63 were made more stringent, "often

substantially so," mainly due to the comments of Servicios

Cientificos y Tecnicos.

     On February 10, 1998, the United States presented and moved

for the approval of the revised consent decree.  Its filings

included a substantial memorandum in support of approval, the 158

page decree, and over 200 pages of attachments.  It contained a

civil penalty of $1.5 million for past violations, $3.5 million for

the acquisition of ecologically sensitive lands and training fire

department personnel in dealing with hazardous materials, and

injunctive relief covering air quality, water quality, oil spills,

hazardous chemicals, CERCLA issues, care of underground storage

tanks, and the services of an environmental review contractor.  The

decree also recited, on its second page, "the Parties agree and

this Court finds that this Consent Decree has been negotiated by

the Parties in good faith, that implementation of this Consent

Decree will avoid prolonged and complicated litigation between the

Parties, and that this Consent Decree is fair, reasonable, and in

the public interest."

     After further exchanges between the government and CUCCo,

addressing the latter's continuing concerns, and no change of

position, CUCCo again moved for an evidentiary hearing in April of

1998.  In November of 1998, the United States moved for immediate

entry of the decree and on March 16, 1999, the district court

ordered, in the margin of the motion, that the decree be filed,

noting, "It will be signed and entered as a final judgment

immediately."  On March 19, the court signed the decree.  The court

also denied as moot CUCCo's latest request for an evidentiary

hearing and denied without opinion CUCCo's application for

attorney's fees and costs.

             II. Was an Evidentiary Hearing Mandated?

     In addressing the refusal of the district court to grant an

evidentiary hearing, we are constrained to a review for abuse of

discretion.  As we said in United States v. Cannons Engineering

Corp., 899 F.2d 79 (lst Cir. 1990), the key consideration is

whether there has been "'a fair opportunity to present relevant

facts and arguments to the court, and to counter the opponent's

submissions.'"  Id. at 93 (quoting Aoude v. Mobil Oil Corp., 862

F.2d 890, 894 (lst Cir. 1988)).  We cannot say here that CUCCo,

having presented its own substantial comments, which were seriously

considered and adopted to the extent that they regarded Clean Air

Act issues, and having had further opportunity to meet and confer

with the negotiating parties and to present its views at several

stages to the court, was denied this opportunity.

     Recently we acknowledged the reality of this type of broad,

technologically driven litigation, when we observed in United

States v. Charles George Trucking, Inc., 34 F.3d 1081 (lst Cir.

1994), that "requests for evidentiary hearings are, for the most

part, routinely denied--and properly so--at the consent decree

stage in environmental cases."  Id. at 1085.  CUCCo would discount

this teaching on the ground that Charles George dealt with the

issue of allocating monetary responsibility for the remedial clean-

up of polluted areas in a CERCLA case, whereas the instant case is

concerned with health hazards and future protection of the

environment.  But we do not see the principle as so confined.  Our

reliance in Charles George on United States v. Metropolitan St.

Louis Sewer District, 952 F.2d 1040 (8th Cir. 1992), a case brought

under the Clean Water Act, is indicative of this judgment.  In that

case the court stated that, once intervenors had the opportunity to

file objections, there was little else that could be done.  See id.

at 1044 (citing United States Envtl. Protection Agency v. City of

Green Forest, 921 F.2d 1394, 1402 (8th Cir. 1990)).  

     A reality check makes clear why there can be no unconditional

right to an evidentiary hearing in such cases as this.  Here, the

two parties, the United States and PREPA, had been negotiating for

three years, more intensely during the third year. Whether or not

the pace had been sluggish, they had finally arrived at agreement

over a host of issues.  They were for the most part exceedingly

technical and required the use of scientific or engineering data

and statistics.  To allow evidentiary hearings on the call of any

party allowed to intervene would delay, complicate, and perhaps

jeopardize the timely resolution of the issues.  After all, the

decree to be approved was a consent decree; sophisticated adverse

parties, represented by their top professionals in dealing with

environmental problems, had found common ground.  

     CUCCo urges us to seize on statements favorable to hearing the

objections of intervenors alluded to in Local Number 93,

International Ass'n of Firefighters v. Cleveland, 478 U.S. 501

(1986).  The statement of the Court that an intervenor has the

right to introduce evidence at a hearing on a decree merely

referenced the statutory right of an affected person in an

employment discrimination case to present objections to a judgment. 

See id. at 529.  If there were a hearing, such a person would have

the right to be heard.  But this is not the same as guaranteeing an

evidentiary hearing on demand.  The Cleveland Court's citation of

Kirkland v. New York State Department Of Correctional Services, 711

F.2d 1117 (2d Cir. 1983), is enlightening, for that case held only

that intervenors in race discrimination cases have a sufficient

interest to argue that the decree is unreasonable.  See id. at

1126.  The opportunity to object or to argue is not translatable

into an unconditional right to have an evidentiary hearing.  In any

event, we are constrained by our own more recent precedent, namely,

Charles George, applicable to this kind of case.  See Metcalf &

Eddy, Inc. v. Puerto Rico Aqueduct and Sewer Auth., 991 F.2d 935,

939 n.3 (lst Cir. 1993) ("In a multi-panel circuit, newly

constituted panels, generally speaking, are bound by prior panel

decisions on point.").

     CUCCo has a more particularistic argument: that the district

court unequivocally promised it an evidentiary hearing.  But, as

the passages of the court's two orders we have quoted reveal, the

court couched its promise with the caveat that a hearing would be

vouchsafed "if need arises" or "if fairness requires."  This seems

only a sensible reservation; a court would not likely undertake to

abandon the exercise of all future discretion.  We do not believe

the court abused its discretion in later determining that there was

no need for an evidentiary hearing.

    III. Is the Lack of Reasoned Judgment Fatal to the Decree?

     A more troubling argument advanced by CUCCo is that the

district court did not set forth its own grounds for finding that

the consent decree was fair, reasonable, and in the public

interest, and that it did not set forth reasons why CUCCo's

objections were misplaced.  The district court, according to CUCCo,

merely signed the decree, ordering it to be entered.  In so doing,

CUCCo argues, the court abrogated its responsibility to make an

independent judgment.

     There is no question but that a consent decree must bear the

imprimatur of a judicial judgment that it is fair, adequate,

reasonable, and consistent with the objectives of Congress. See

Conservation Law Found. v. Franklin, 989 F.2d 54, 58 (lst Cir.

1993).  The United States, PREPA, and CUCCo all accept this set of

standards.  Thus there is no allegation that an error of law has

been committed by the district court.  Rather, the question is

whether the record contains adequate facts to support the decision

of the district court to approve the proposed compromise.  As to

this, as the Supreme Court has observed, "a reviewing court would

be properly reluctant to attack that action solely because the

court failed adequately to set forth its reasons or the evidence on

which they were based."  Protective Comm. for Indep. Stockholders

of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 437 (1968).

     As the United States acknowledged in its brief in an

understated manner, "an explanation may have been advisable."  We

grant that a judge confronted with such a multi-faceted, technical,

voluminous document, agreed to by two sophisticated and resourceful

adversaries, faces what is on the surface a dilemma between

essaying an exhaustive and detailed appraisal and contenting

herself with rehearsing a brief and conclusory litany.  We say "on

the surface" because a judge who has lived with litigation spanning

such a long time will perceive a middle course suggested by the

history of the case.  The judge will know the major issues that

have been contested and resolved, will be acquainted with the

evidence for and against resolutions achieved, and can indicate a

basis for confidence that they lie within the area of permissible

discretion.  This gives a reviewing court confidence that a neutral

adjudicator, intimately acquainted with the case, has focused on

the essential criteria and found them not lacking.

     Having said this, we are most reluctant, however, to further

extend these proceedings unless we sensed something deeply amiss. 

The proceedings lasted over five and one half years.  The court had

the benefit of an initially proposed decree in 1997.  Then it had

the second proposed decree, its attachments, including all comments

and responses thereto, and the government's memorandum accompanying

its motion to enter.  It withheld action on the decree for over a

year while the United States and CUCCo further conferred.

     The decree was finally endorsed by the court on March 19,

1999.  As we have noted, a prominent introductory section recited

that

          [T]he Court finds that this Consent Decree has been

     negotiated by the Parties in good faith . . . and that

     this Consent Decree is fair, reasonable, and in the

     public interest.



We must presume that the court was fully cognizant of this solemn

representation of its conclusions.  Moreover, any further

proceedings would cause the loss or delay of the benefits of the

$3.5 million civilian penalty, construction timetables, interim

discharge limitations, stipulated penalty provisions, and work on

the environmental projects contained in the decree.

     At this point we underscore two policies that heavily brigade

the decree.  The first is the strong public policy in favor of

settlements, particularly in very complex and technical regulatory

contexts.  See Conservation Law Found., 989 F.2d at 59.  Moreover,

such a policy has added bite where the settlement has been advanced

for entry as a decree by a government actor "committed to the

protection of the public interest" and specially trained and

oriented in the field.  See Cannons Eng'g Corp., 899 F.2d at 84.

     But the conclusory recitation in the decree, even viewed in

conjunction with the high degree of deference owed to contracting

parties in this kind of case, still leaves us without a more

reasoned judicial determination.  We therefore choose a route

rarely taken; we examine the record ourselves to see if we can find

that the decree is fair, reasonable, and consistent with

environmental goals.  We are in essentially the same position as

the court in Van Horn v. Trickey, 840 F.2d 604 (8th Cir. 1988),

where the district court, in approving a class action prison reform

settlement, did not address the fairness, reasonableness, or

adequacy of the arrangement.  The appeals court found that the

record contained enough facts to support the district court's

approval of the settlement.  See id. at 607. 

     We therefore scrutinize the record.  We accept as our standard

the precept reiterated in United States v. Hooker Chemicals and

Plastics Corp., 540 F. Supp. 1067 (W.D.N.Y. 1982), aff'd, 749 F.2d

968 (2d Cir. 1984), that "'[t]he court must eschew any rubber stamp

approval in favor of an independent evaluation, yet, at the same

time, it must stop short of the detailed and thorough investigation

that it would undertake if it were actually trying the case.'"  Id.

at 1072 (citation omitted).  Our review lacks the sense of command

and "feel" of a complex case that a managing court would have.  But

we shall focus on each basic criterion and seek for sufficient

record evidence to give us confidence that it is adequately

supported.

     Addressing the fairness of the decree, we have seen no

evidence that the United States and PREPA had other than an arm's

length, good faith bargaining record. We say this, while

acknowledging that CUCCo has charged PREPA with being the "worst-

run utility" and the United States as a "look-the-other-way"

plaintiff.  As with many other charges levied, this lacks

specifics, not to mention record references.  Indeed, CUCCo's

charges are reminiscent of Virginia's objections to the decree in

a case cited by CUCCo, United States v. District of Columbia, 933

F. Supp. 42 (D.D.C. 1996), namely, that the parties lacked

"adversarial vigor" and that many years of mismanagement warranted

much larger fines than those proposed in the decree. See id. at 48-

49.

     A second aspect of fairness is its substantive side, what we

have characterized as "concepts of corrective justice and

accountability: a party should bear the cost of the harm for which

it is legally responsible."  Cannons Eng'g Corp., 899 F.3d at 87. 

But these concepts do not lend themselves to verifiable precision. 

In environmental cases, EPA's expertise must be given "the benefit

of the doubt when weighing substantive fairness."  Id. at 88. 

Here, the present and continuing burdens laid on PREPA, both in

monetary penalties and in performance requirements are very

substantial.  We have examined all of EPA's responses to CUCCo's

comments and have found them persuasive.

     As for adequacy and reasonableness, we have surveyed the

plethora of compliance requirements, qualitative standards, and

ongoing monitoring and reporting devices incorporated in the

decree.  Most of these, in fact, have been supported by CUCCo

which, at one point, sought to bring about a partial enforcement of

the decree.  Again, we see similarities between this decree and

that approved in District of Columbia: "tailored relief" covering

short and long term equipment improvements, detailed schedules,

required contractual obligations, reporting requirements, etc.  See

District of Columbia, 933 F. Supp. at 50-51.  Indeed, in District

of Columbia, the United States had made a "conscious decision not

to seek civil penalties." Id. at 51.  

     CUCCo's major technically based objections are that it was not

reasonable to allow PREPA to use fuel with a 1.5% sulfur content in

weight and that the lack of fuel opacity readings at night allows

PREPA to make its "worst plumes assaults" against the Catano

residents without detection.  We have read CUCCo's comments and the

responses of the United States.  All these questions are answerable

only by recourse to experts.  We cannot say that the position of

the United States on any of these well plumbed issues was an abuse

of discretion or, once accepted by the court, constituted an abuse

of discretion.  Other issues touched upon by CUCCo in its brief,

such as allegedly inadequate self-policing incentives, indefinite

compliance dates, and lack of measures to reduce pollution are

mentioned only cursorily, without record reference or

documentation.  

     With regard to the public interest and consistency with the

objectives of Congress, the basic thrust of CUCCo's objection is

that the decree, while going in the right direction and with many

eminently supportable provisions, does not go far enough. 

Particularly, CUCCo argues that the penalties are so low, in

relation to PREPA's resources, that they do not constitute a

deterrent.  But, as is true of consent decrees generally, they are

built upon compromise and compromise in turn is a product of

judgment.  We are unable to say that the penalty level established

by the decree represents an abandonment of judgment by the United

States.  See, e.g., id. at 52 (upholding agreement that made

"significant progress" even if court itself might have taken a

tougher stance).

     We therefore conclude that the record amply supports the

district court's judgment that the decree is fair, adequate,

reasonable, and consistent with the public environmental and health

objectives of Congress.

      IV. Was Denial of Counsel Fees an Abuse of Discretion?

     Two months after entry of the decree the district court denied

CUCCo's application for costs and counsel fees, without

explanation.  This issue is complicated by a threshold question of

whether the Clean Water Act grants courts the authority to award

counsel fees to an intervenor in an enforcement action.  Section

505(d) of that Act provides that the court in "any action brought

pursuant to this section, may award costs of litigation (including

reasonable attorney and expert witness fees) to any prevailing or

substantially prevailing party, whenever the court determines such

award is appropriate."  33 U.S.C.  1365(d).   Section 505(b)

provides that no action may be commenced if the EPA Administrator

has brought suit, but a citizen "may intervene as a matter of

right."  33 U.S.C.  1365(b)(1)(B).  There exists a question

currently undecided at the court of appeals level whether, in a

case brought under the Clean Water Act, an intervenor, as

distinguished from a plaintiff which has initiated its own suit, is

entitled to counsel fees.  

     Although this issue was argued below, as well as whether CUCCo

was a "prevailing party," the district court merely denied the

petition for costs and fees without particularity.  We consider

this legal issue to be not free from difficulty and would prefer

not to decide it unless the only obstacle to an award of costs and

fees is the eligibility for fees of an intervenor in a Clean Water

Act matter.  Cf. T I Fed. Credit Union v. Delbonis, 72 F.3d 921,

927 (lst Cir. 1995) ("Sound judicial policy counsels against

deciding complicated legal issues where a clear, principled basis

for reaching the same result exists.").

     In Farrar v. Hobby, 506 U.S. 103 (1992), the Court restated

its "generous formulation" of the term "prevailing party" in the

following words: "plaintiffs may be considered 'prevailing parties'

for attorney's fees purposes if they succeed on any significant

issue in litigation which achieves some of the benefit the parties

sought in bringing suit." Id. at 109 (internal quotations omitted). 

It further elaborated on this definition: "In short, a plaintiff

'prevails' when actual relief on the merits of his claim materially

alters the legal relationship between the parties by modifying the

defendant's behavior in a way that directly benefits the

plaintiff."  Id. at 111-12.  We have described this articulation as

leaving to the district court "a good deal of latitude."  Stanton

v. Southern Berkshire Reg'l Sch. Dist., 197 F.3d 574, 576 (lst Cir.

1999).  As for the issue of appropriateness, we can do no better

than reflect the reaction of the Court in Ruckelshaus v. Sierra

Club, 463 U.S. 680 (1983), that "[i]t is difficult to draw any

meaningful guidance from [an attorney's fees provision's] use of

the word 'appropriate,' which means only 'specially suitable; fit,

proper.'" Id. at 683 (citation omitted).  The Court referenced a

Senate Report regarding the section, stating that its purpose was

to underscore the committee's intent that a court may "in its

discretion" award costs.  See id. at 683 n.2.

     The district court, which has followed the development of this

litigation and the evolution of this decree, is clearly in a

superior position to make judgments on these issues.  For, unlike

our decision concerning the minimal requirements of fairness,

adequacy, reasonableness, and consistency with Congressional

objectives, such decisions are not restrained by considerations of

deference to settlements, to the nature of compromise, and to

specially equipped and committed public agencies.  The district

court is vested with wide discretion and brings to bear an ability

to weigh against the total background the significance of any

contributions and the appropriateness of any award of fees and

costs.  Because the district court provided no explanation for its

denial of attorney's fees to CUCCo, it is unclear whether the court

decided that CUCCo was not a prevailing party, that fees were not

appropriate, that the Clear Water Act did not authorize fees in

these circumstances, or any combination of these reasons.

     We therefore affirm the entry of the consent decree but remand

the case to the district court for the limited purpose of

revisiting the issue of CUCCo's request for attorney's fees.

     Affirmed in part and remanded in part for further proceedings

consistent with this opinion.  No costs.