PacifiCorp v. U.S. Environmental Protection Agency

Filing 68

ORDER re: 37 MOTION for Summary Judgment and 61 Supplemental Briefing Re Request for an Award of Attorney Fees and Litigation Costs. PacifiCorp's request for attorney's fees and litigation costs is DENIED. By Judge Raymond P. Moore on 07/01/2015. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 13BcvB02187BRM-CBS
PACIFICORP,
Plaintiff,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Defendant.
______________________________________________________________________________
ORDER DENYING
PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND OTHER LITIGATION COSTS
______________________________________________________________________________
This matter is before the Court on Plaintiff PacifiCorp’s request for attorney’s fees and
litigation costs contained in various filings (ECF Nos. 44, 49, 61) filed under 5 U.S.C.
§ 552(a)(4)(E). The issue is fully briefed and ripe for determination. Upon consideration of the
papers filed on this issue, as well as the Court file in this matter, and the applicable rules and case
law, the Court DENIES PacifiCorp’s request for the reasons stated herein.
I. BACKGROUND
PacifiCorp filed this action under the Freedom of Information Act (“FOIA”) based on
allegations that Defendant United States Environmental Protection Agency (“EPA”) failed to
properly respond to two FOIA requests relating to WildEarth Guardians v. Jackson, Civil Action
No. 11-cv-00001-CMA-MEH (“WildEarth”) then pending in this District. As relevant to this
case, Plaintiffs in WildEarth alleged the EPA failed to undertake duties under the Clean Air Act

relating to regional haze implementation plan (“Plan”) requirements for the state of Wyoming.
The parties in that case entered into a Consent Decree, which was subsequently modified, as to the
timing for the EPA to issue proposed and final rules relating to Wyoming’s Plan.
PacifiCorp is an electric utility company, supplying electricity to more than 1.8 million
customers in Wyoming and five other states. (ECF No. 1, Complaint, ¶¶ 1, 21.) It operates 12
coal-fired electric generating units in Wyoming that are subject to regional haze requirements
under EPA’s rulemaking. (ECF No. 19, page 2 n.1.) According to PacifiCorp, under extensions
granted through the modification of the Consent Decrees, the EPA was able to issue proposed and
“re-proposed” rulemaking relating to Wyoming’s Plan which (at that time) could have a
“substantial impact” on PacifiCorp’s power plants in Wyoming, “required the installation of
additional expensive and unnecessary pollution control equipment,” and required “much more
expensive, and unnecessary, pollution control equipment at PacifiCorp’s Wyoming power plants.”
(Complaint, ¶¶ 16, 21, 24; see ECF No. 19, page 4 and n.2, page 5.) PacifiCorp’s FOIA requests
sought information in order to prepare public comments to the re-proposal, information which
PacifiCorp believed would shed light on “the expensive additional emissions controls” and would
assist in understanding what “influenced the new requirements for additional equipment.”
(Complaint, ¶ 27.) PacifiCorp asserted that, without the information, it would be denied the
opportunity to “respond or challenge the substantial obligations that [would] be imposed on it
through the…[re-proposal].” (Complaint, ¶¶ 28, 66.)

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II. ANALYSIS
“Assessment of attorney’s fees in an FOIA case is discretionary with the district court.”
Anderson v. Secretary of Health & Human Resources, 80 F.3d 1500, 1504 (10th Cir. 1996). In
applying for an award of FOIA attorney’s fees, “plaintiff must first establish that [it] is eligible for
an award by showing that [it] ‘substantially prevailed’ on [its] claim.” Anderson, 80 F.3d at 1504
(quoting 5 U.S.C. § 552(a)(4)(E)). If a plaintiff is eligible, the court next evaluates the following
four factors to determine whether a fee award is otherwise justified: “‘(1) the benefit to the public,
if any, derived from the case; (2) the commercial benefit to the complainant; (3) the nature of the
complainant’s interest in the records sought; and (4) whether the government’s withholding of the
records had a reasonable basis in the law.’” Anderson, 80 F.3d at 1504 (quoting Aviation Data
Serv. v. FAA, 687 F.3d 1319, 1321 (10th Cir. 1982)). “[T]he fee applicant bears the burden of
establishing entitlement to an award.” Anderson, 80 F.3d at 1504 (quoting Mares v. Credit
Bureau of Raton, 801 F.2d 1197, 1201 (10th Cir.1986)) (internal quotation marks and citation
omitted).
A. Whether Plaintiff Substantially Prevailed
PacifiCorp contends it substantially prevailed and the EPA did not argue otherwise. The
Court agrees that PacifiCorp substantially prevailed as its lawsuit “was reasonably necessary and
substantially caused the requested additional records to be released.” Gowan v. U.S. Dept. of the
Air Force, 148 F.3d 1182, 1195 (10th Cir. 1998). Upon Motion for Summary Judgment filed by
PacifiCorp, the Court granted most of the relief PacifiCorp sought in this action. (ECF Nos. 37,
50.) Therefore, PacifiCorp is eligible for a fee award. See 5 U.S.C. § 552(a)(4)(E)(ii) (“[A]
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complainant has substantially prevailed if [it] has obtained relief through…(I) a judicial
order….”). PacifiCorp, however, must still show it is entitled to an award.
B. Commercial Benefit to the Complainant and the Nature of the Complainant’s
Interest in the Records Sought1
PacifiCorp argues it received no commercial benefit from pursuing this lawsuit while the
EPA contends the issue is not what PacifiCorp derived but, rather, what motivated its request. As
courts have recognized, these two factors are closely related. See Aviation Data Serv. v. FAA,
687 F.2d 1319, 1322 (10th Cir. 1982). Nonetheless, they should both be examined.
The fundamental purpose of the FOIA is to provide “a method of informing the public as to
governmental operations and not to enhance the private benefits of litigants.” Aviation Data, 687
F.2d at 1322. Thus, courts generally should not award attorney’s fees in a FOIA case where the
plaintiff’s “self-interest was the primary factor in bringing the suit.” Id.; Anderson, 80 F.3d at
1505. In this case, an examination of the record, including arguments and matters presented to
the Court at the hearing on Plaintiff’s Motion for Preliminary Injunction, shows PacifiCorp was
motivated by its own private, commercial interest in seeking information under the FOIA and in
pursuing this litigation. PacifiCorp’s papers show it sought the documents in order to determine
the bases for – and provide public comments on – the proposal/re-proposals relating to the Plan
which would impose significant – and costly – obligations on PacifiCorp. PacifiCorp asserts that
its interest in the records sought is “entirely aligned with its interest in achieving a transparent and
effective rulemaking process for Wyoming’s regional haze rule.” (ECF No. 61, page 7.) This

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Under the facts and circumstances of this case, the Court finds its analysis should begin with the second and third
factors.
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latter interest, even assuming it is supported in the record, nonetheless fails to negate the finding
that PacifiCorp acted out of its own self-interest.
PacifiCorp’s argument that it derived no commercial benefit from the FOIA requests is
similarly unavailing as such bare statement, without more, does not support such a conclusion.
The fact that PacifiCorp’s FOIA requests were not limited just to PacifiCorp or its interests in
Wyoming also does not support the conclusion that it derived no benefit when its requests would
have encompassed these matters, and when the EPA’s proposal/re-proposal apparently dealt with
Wyoming as a whole. In fact, PacifiCorp recognized it received commercial benefit as it is a
regulated entity affected by the Wyoming rulemaking. (ECF No. 49, page 19.) Finally, while
the issue of the EPA’s rulemaking concerning the haze program for Wyoming may affect all
entities thereby regulated and the public in general, the evidence shows that is not what
precipitated this litigation. Accordingly, this factor weighs against an award of attorney’s fees.
C. Benefit to the Public
PacifiCorp argues this litigation was to the public’s benefit because it was necessary to
obtain the release of records relevant to the public process associated with the EPA’s rulemaking
concerning the regional haze plan. And, as such, PacifiCorp contends its requests were designed
to facilitate robust public review on EPA’s rulemaking. The EPA argues no public benefit has
been shown as it was PacifiCorp’s burden to make the documents it received available to the
public, PacifiCorp failed to discuss any specific document released in response to its requests, the
majority of the responsive documents were mundane with limited, if any, public value, and the
remaining documents were already in the public domain.
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“[A] private benefit to the plaintiff in obtaining disclosure under FOIA does not preclude a
fee award ‘if the record discloses an adequate public benefit from the enforced disclosure of the
material.’” Western Energy Alliance v. U.S. Fish & Wildlife Serv., No. 14-1435, 2015 WL
1903292, at *3 (10th Cir. April 28, 2015) (quoting Aviation Data Serv., 687 F.2d at 1322). In
determining public benefit, “[t]he test…is whether the disclosure will assist the citizenry generally
in making an informed judgment as to governmental operations.” Aviation Data Serv., 687 F.2d
at 1323. In doing so, “‘a court should take into account the degree of dissemination and likely
public impact that might be expected from a particular disclosure.’…The question is whether ‘the
award would merely subsidize a matter of private concern,’ or in contrast, ‘the complainant’s
victory is likely to add to the fund of information that citizens may use in making vital political
choices.’” Western Energy Alliance, 2015 WL 1903292, at *2 (quoting Aviation Data Serv., 687
F.2d at 1323). Thus, “where the plaintiff seeks disclosure of material for commercial purposes,
attorney fees may be awarded only on a positive and clear showing of substantial public benefit.”
Aviation Data Serv., 687 F.2d at 1323.
In this case, there is no evidence that the information sought – and received – were
disseminated to the public. Thus, it is unclear how such information facilitated – or could have
facilitated – any “robust public review” as PacifiCorp contends. While there is evidence that
PacifiCorp submitted comments after it received the EPA’s initial responsive documents (ECF No.
63-1, Declaration of Carl Daly, ¶4 and n.1), there is no evidence that such comments disseminated

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any information received.2 As any “[m]inimal, incidental and speculative public benefit will not
suffice,” Aviation Data Serv., 687 F.2d at 1323, this factor weighs against an award of attorney’s
fees.
D. Whether the EPA’s Withholding of the Records had a Reasonable Basis in Law
PacifiCorp contends the Court has already determined that, prior to this litigation, the EPA
did not conduct a reasonable search for records and did not redact any documents so responsive
documents were improperly withheld. In addition, PacifiCorp relies on the Court’s finding that
the EPA was required to but did not release purely factual material from information claimed
under the attorney work-product exemption. The EPA, on the other hand, argues that its
withholdings under the attorney-work product had a reasonable basis in law; it acted reasonably;
any failure to conduct an adequate search was not in bad faith; and, even if some of its actions are
found to be unreasonable, the other factors weigh heavily against a finding of entitlement to fees.
The Court generally agrees.
First, as to the release of information under the attorney-work product exemption, this issue
was unsettled in the Tenth Circuit and the EPA had a reasonable basis in law for its position.
Next, the Court did find the EPA’s initial response was inadequate, but there was no finding of bad
faith. Further, some of the EPA’s actions in its initial response were unreasonable (e.g., the initial
failure to produce segregable factual material from documents withheld under all privileges

2

The EPA’s declaration that PacifiCorp did not submit comments “concerning the subject of their FOIA requests”
does not equate to the nonuse – or nondissemination – of any information it received. (ECF No. 63-1, ¶4 (emphasis
added).) Nonetheless, the burden is on PacifiCorp to show that the information was disseminated, which it has not
done.
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claimed).3 While this weighs in favor of an award of fees, an award is nonetheless not justified in
light of the Court’s determination that the other factors weigh heavily against a finding of
entitlement to fees.
III. CONCLUSION
Based on the foregoing, the Court finds that PacifiCorp has failed to show an award of
attorney’s fees or “other litigation costs” under 5 U.S.C. §552(a)(4)(E) is justified. It is therefore
ORDERED that Plaintiff PacifiCorp’s request for attorney’s fees and litigation costs is
DENIED.

DATED this 1st day of July, 2015.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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The EPA argues that prior to litigation commencing, it “released and redacted responsive documents,” relying on the
Declaration of Laurel Dygowski as support. (ECF No. 63, page 9 (citing ECF No. 43, Ex. 1, ¶¶ 4-19).) The Court’s
review of the Declaration, however, shows it fails to support the argument that any redacted responsive documents
were released prior to litigation commencing. (See, e.g., Dygowski Dec., Ex. 1, ¶ 19.)
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