Riverkeepers seek attorney’s fees for legal victory against FERC and Sabal Trail 2019-02-04

Some good news! Not only did Flint Riverkeeper, Chattahoochee Riverkeeper, and Sierra Club win a historic landmark victory against Sabal Trail and FERC in August 2017, affecting all FERC pipeline and LNG export dockets ongoing: the Riverkeepers are entitled to attorneys fees!

Application and Argument, Letter

Despite FERC’s attempt to weasel out by trying to claim that case was not and “adversary adjudication.”, the Riverkeepers seek recovery of attorney’s fees in the amount of $192,437.42.

 -jsq, John S. Quarterman, Suwannee RIVERKEEPER®

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The Riverkeepers letter

Filed with FERC 4 February 2019 as Accession Number: 20190204-5243, “Application and Basis for Attorney’s Fees of Flint Riverkeeper and Chattahoochee Riverkeeper, et. al. under CP14-554, et al.”

The cover letter is below. Follow the above link for the Exhibits.

UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION

Florida Southeast Connection, LLC
Transcontinental Gas Pipe Line Company, LLC
Sabal Trail Transmission, LLC

Docket Nos. CP14-554-003
LLC CP15-16-004
CP15-17-003

APPLICATION AND BASIS FOR ATTORNEY’S FEES
PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT

Pursuant to the Equal Access to Justice Act (““EAJA” or “the Act”),28 U.S.C. §2412, and in accordance with the October 9, 2018 Order of the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit)!, Flint Riverkeeper and Chattahoochee Riverkeeper (“the Riverkeepers”) hereby seek recovery of their attorney’s fees for proceedings before this agency in connection with Fla. Se. Connection, LLC,154 FERC § 61,080 and Fla. Se Connection, LLC.,156 FERC § 61,160 (Sept. 7, 2016). In accordance with the January 3, 2019 Notice of Attorney Fee Proceeding, Riverkeepers hereby submit this Petition, showing that they are entitled to recover attorney’s fees for the adjudicatory proceedings before the Agency and the amount and reasonableness of the fees sought.

ARGUMENT

As an initial matter, Riverkeepers were successful in vacating orders of this Agency that authorized the Southeast Market Pipeline Project (“the Project”)*. In doing so, Riverkeepers obtained a significant legal victory vindicating their claim that FERC’s failure to assess downstream greenhouse-gas effects was arbitrary and capricious, and violated the National Environmental Policy Act (“NEPA”). Under the Act, eligible prevailing parties “shall” be awarded attorneys’ fees unless the court finds that the government’s position was “substantially justified” or that “special circumstances” would make an award unjust. 28 U.S.C. § 2412(d)(1)(A). As the D.C. Circuit already determined, Riverkeepers are eligible prevailing parties under the Act, FERC’s position was not substantially justified, and no special circumstances make a fee award unjust. See October 9, 2018 Order, Exhibit A. The only issue the D.C. Circuit left to be addressed is whether Riverkeepers are entitled to attorney’s fees for the proceedings before the Agency. As set forth below, Riverkeepers are entitled to recover fees for the administrative adjudication before the Agency, and the specific award that they seek is reasonable.

I. Riverkeepers are Entitled to Attorney’s Fees for the Administrative Adjudication Before the Agency

Riverkeepers are entitled to recover attorney’s fees and expenses for time spent on the administrative proceeding before FERC under 28 U.S.C. § 2412(d)(3), which allows for the recovery of attorney’s fees incurred in connection with an agency “adversary adjudication.” Notably, the Natural Gas Act requires an administrative appeal, and the administrative proceeding is adversarial. The FERC proceeding satisfied all three prerequisites for an “adversarial adjudication,” as the proceeding: (1) entailed an adjudication, an agency process for the formulation of an order, that is required by statute (5 U.S.C. § 551(7)); (2) was on the record; and (3) there was an opportunity for an agency hearing. GasPlus, L.L.C. v. U.S. Dep’t of Interior, 593 F. Supp. 2d 80, 89-90 (D.D.C. 2009) (citing 28 U.S.C. §2412(d)(3)). See 15 U.S.C. § 717£(c)(1)(B) (“the Commission shall set the matter for hearing and shall give such reasonable notice of the hearing thereon to all interested persons…”); id. at § 7171(a) (“Any person … aggrieved by an order issued by the Commission in a proceeding under this chapter to which such person … is a party may apply for a rehearing within thirty days after the issuance of such order.”); id. at §717r(b) (“A copy of such petition shall forthwith be transmitted by the clerk of the court to any member of the Commission and thereupon the Commission shall file with the court the record upon which the order complained of was entered …”).

An “adjudication” is an “agency process for the formulation of an order.” 5 U.S.C. § 551(7). FERC’s process here resulted in a Certificate Order and an “Order on Rehearing.” Riverkeepers filed a rehearing request challenging FERC’s Certificate Order on NEPA grounds, 15 U.S.C. § 7171(a), and sought judicial review of FERC’s Rehearing Order, 15 U.S.C. § 717r(b).

The FERC proceeding was an adversarial process. See, e.g. Caley Decl. at #¥ 11, 12, 16, 24, a true and correct copy of which is attached hereto as Exhibit B; Mot. For Leave to Answer and Answer of Sabal Trail Transmission, LLC (FERC Accession No. 20160318-5182) (responding to, infer alia, rehearing request). See generally, 18 C.F.R. § 385.2201(b) (except for certain exempt communications, “in any contested on-the-record proceeding, no person outside the Commission shall make or knowingly cause to be made to any decisional employee, and no decisional employee shall make or knowingly cause to be to any person outside the Commission, any off-the-record communication”); Elec. Power Supply Ass’n v. FERC, 391 F.3d 1255, 1266 (D.C. Cir. 2004) (“The Commission is powerless to override Congress’ directive banning ex parte communications relevant to pending on-the-record proceedings between decisional staff and interested persons outside the agency.”). Intervening in the FERC proceeding and filing a rehearing request were prerequisites to the court challenge and greatly limited the hour that needed to be expended at the court stage. See 15 U.S.C. § 717r(a); Caley Decl. at {J 25 and 33.

It should be noted that before the D.C. Circuit, FERC argued that the proceeding was not an adversarial adjudication because it was “for the purpose of granting or renewing a license” and thus excluded from the definition of “adversarial adjudication,” quoting 5 U.S.C. § 504(b)(1)(C)). Not only is the licensing argument irrelevant to this proceeding, this exclusion prevents a license applicant from recovering fees incurred during the licensing application process. Congress did not exclude an adversarial adjudication culminating in an Order on Rehearing, which is distinct from a non-adversarial proceeding culminating in a license.

Similarly, FERC also argued before the D.C. Circuit, without support, that the proceeding was not adversarial because “the position of the United States [was not] represented by counsel or otherwise.” Again, the context is distinguished from the instant matter in that this case does not involve a licensing proceeding. Likewise, FERC’s reliance on In re Perry, 882 F.2d 534 (1″ Cir, 1989), which, unlike this case, involved “a purely adjudicative governmental entity” that had “no duty or interest in defending its decision on appeal,” is of no relevance. Jd. at 535, 537.

Here, despite efforts to paint itself in such a light, FERC was not merely a neutral factfinder in a non-adversarial adjudication nor a disinterested adjudicator whose position is unrepresented in the proceeding. In fact, early in the administrative process, FERC “staked out a position” that it was not required to consider downstream greenhouse-gas effects. Hudson v. See’y of Health & Human Servs, 839 F.2d 1453, 1460 (11″ Cir. 1998), aff’d and remanded sub nom, Sullivan vy. Hudson, 490 U.S. 877 (1989). Riverkeepers intervened and counsel expended many hours challenging FERC’s failure to fulfill its NEPA obligations. See, e.g. Declaration of Steven D. Caley (“Caley Decl.”) at §f 10, 14, 23. FERC stubbornly adhered to its position. This process resulted in a Certificate Order, in which FERC reaffirmed its position. Riverkeepers requested rehearing and a stay because they were “aggrieved by [FERC’s] order.” 15 U.S.C. §717r(a). See Caley Decl. J] 25; 5 U.S.C. § 504(b)(1)(E). The adversarial adjudication culminated in the issuance of the Rehearing Order, which Riverkeepers were also “aggrieved by.” 15 U.S.C. §717r(b). Accordingly, the FERC proceeding was necessarily an “adversary proceeding” for which Riverkeepers are entitled to recovery their attorney’s fees and expenses.

II. The Fees Requested by Riverkeepers are Reasonable

The general rule is that hours are compensable under EAJA so long as they are “reasonably expended” and necessary or useful for prosecution of the case. See Blum v. Stenson, 465 U.S. 886, 901 (1984); Hensley v. Eckerhart, 461 U.S. at 434. As set forth below, the fees requested by Riverkeepers are reasonable.

A. Amount

Riverkeepers seek recovery of attorney’s fees in the amount of $192,437.42 for Mr. Steve Caley’s time expended on the proceedings before the Agency. See Caley Decl. at Exhibit B.

B. The Time Claimed by Riverkeepers’ Counsel Was Reasonably Expended

Riverkeepers are “entitled to an award of fees for all time reasonably expended in the pursuit of the ultimate result achieved in the same manner that an attorney traditionally is compensated by a fee-paying client for all time reasonably expended on a matter.” Hensley, 461 U.S. at 431. Riverkeepers seek an award of fees for the legal services of Steven Caley. The accompanying declaration and statement of Mr. Caley’s time establishes that it was necessarily, reasonably, and efficiently spent.

C. The Rates and Fees Requested are Reasonable

EAJA allows for the award of attorneys’ fees “based upon prevailing market rates for the kind and quality of the services furnished,” capped at $125 per hour plus an appropriate cost-of- living adjustment, unless the court determines that a “special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(1)(D)(2)(A). Here, Riverkeepers seek recovery at the rate representing the statutory based under the Act, adjusted for cost-of-living increases. The adjusted EAJA rate for a given year can be determined by enhancing EAJA’s base rate of $125 per hour by the Consumer Price Index for All Urban Consumers (“CPI-U”) for the Washington-Arlington-Alexandria? area that was current in the year the fee was earned. Applying the same, the applicable statutory hourly rates, adjusted for cost-of-living increases relevant to this fee application, are as follows:

2014:$125 x (247.67915/158.416) = $195.45
2015:$125 x (250.664/158.4) = $197.81
2016:$125 x (253.422/158.4) = $199.99

Accordingly, Riverkeepers request that the Court award attorney’s fees in the amount of

$192,437.42 for Mr. Caley’s time expended on the FERC proceeding, an adversary adjudication,

HOURSRATETOTAL
2016138hours‘$199.99$27,598.62
2015280hours?$197.81$55,386.80
2014560hours®$195.45$109,452.00
TOTAL$192,437.42

CONCLUSION

Riverkeepers’ fee request for fees is consistent with the purpose and intent of the Act. For the foregoing reasons, Riverkeepers respectfully request the Court award attorney’s fees in the amount of $192,437.42 pursuant to the Equal Access to Justice Act.

Respectfully submitted,
[signed]
Kimberly (Kasey) A. Sturm
GreenLaw
c/o Kasey Sturm
Weissman, P.C.
One Alliance Center, 4″” Floor
3500 Lenox Road
Atlanta, Georgia 30326
kaseys@weissman.law
Counsel for Riverkeepers

1 A true and correct copy of the Order is attached hereto as Exhibit A. In its Order, the D.C. Circuit awarded Riverkeepers’ attorney fees incurred in proceedings before the Court associated with Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017) and remanded to the Commission the question of whether EAJA also entitles the Riverkeepers to attorney fees associated with the preceding administrative proceedings: Fla. Se. Connection, LLC, 154 FERC § 61,080 and Fla. Se Connection, LLC., 156 FERC § 61,160 (Sept. 7, 2016).

2 See Sierra Club v. FERC,867 F.3d 1357 (D.C. Cir. 2017), vacating Fla. Se. Connection, LLC, 154 FERC § 61,080 and Fila. Se Connection, LLC., 156 FERC 4 61,160 (Sept. 7, 2016).

3 Attached as Exhibit C.

4 See Caley Decl. §§25-28 and time records attached thereto

5 See id. at §§ 18-19, 22-24

6 See id. at §§10-16, 21. For time estimates spanning a multiple year period, the earliest year (i.e. lowest rate) was used. See Id. at §§ 12, 15, 21.

 -jsq, John S. Quarterman, Suwannee RIVERKEEPER®

You can join this fun and work by becoming a WWALS member today!

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