{"id":325,"date":"2026-01-05T12:00:00","date_gmt":"2026-01-05T12:00:00","guid":{"rendered":"https:\/\/california.shuster.info\/?p=325"},"modified":"2026-01-05T12:00:00","modified_gmt":"2026-01-05T12:00:00","slug":"food-water-watch-epa-fluoride-tsca-fee-award","status":"publish","type":"post","link":"https:\/\/california.shuster.info\/?p=325","title":{"rendered":"Food & Water Watch v. EPA \u2014 N.D. Cal. awards $5.76M in fees and costs after fluoride TSCA win"},"content":{"rendered":"
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Case<\/dt>\n
Food & Water Watch, Inc., et al. v. United States Environmental Protection Agency, et al.<\/dd>\n
Court<\/dt>\n
U.S. District Court \u2014 Northern District of California<\/dd>\n
Date Decided<\/dt>\n
2026-01-05<\/dd>\n
Docket No.<\/dt>\n
3:17-cv-02162<\/dd>\n
Status<\/dt>\n
Unreported \/ Non-Citable<\/dd>\n
Topics<\/dt>\n
Toxic Substances Control Act (TSCA) Section 21 citizen petition; fee shifting; lodestar; reasonable hourly rates; multiplier under Perdue v. Kenny A.; recouped costs<\/dd>\n<\/dl>\n<\/div>\n

Background<\/h2>\n

In 2017, Food & Water Watch and a group of co-plaintiffs petitioned the EPA under Section 21 of the Toxic Substances Control Act (TSCA) to ban the practice of adding fluoride to public drinking water on the ground that it presents an unreasonable risk of neurodevelopmental harm. After EPA denied the petition, the plaintiffs sued for de novo review under Section 21(b)(4)(B). The case proceeded through years of litigation, two trials (delayed in part to allow finalization of underlying scientific studies), and ultimately a November 20, 2024 judgment in plaintiffs\u2019 favor \u2014 the first time a TSCA citizen group had ever taken a Section 21 petition to a successful federal trial.<\/p>\n

Plaintiffs then sought fees and costs as the prevailing party. They asked for roughly $10 million, supported by detailed declarations on hours, hourly-rate methodology (using the Real Rate Report for San Francisco), and a 2.0 lodestar multiplier for lead counsel Michael Connett. EPA opposed both the rate methodology and any multiplier, arguing that the case was \u201cenvironmental,\u201d that no exceptional result was achieved beyond the statutory minimum, and that no costs should be awarded because plaintiffs had recouped litigation expenses through targeted fundraising.<\/p>\n

The Court’s Holding<\/h2>\n

Judge Edward M. Chen awarded $5,263,705 in fees and $496,745 in costs, for a combined $5,760,450, with payment stayed pending appeal.<\/p>\n

On reasonable hourly rates, the court applied In re Prison Legal News v. Schwarzenegger<\/em> and Stonebrae<\/em> and held that the relevant comparator market was San Francisco complex civil litigation generally, not just environmental litigation. Section 21 TSCA citizen-suit work \u2014 with a full trial, heavy expert use, and novel science \u2014 looks much more like complex civil litigation than typical record-review environmental cases.<\/p>\n

The court adopted Real Rate Report rates, with a key adjustment for lead counsel Michael Connett: third-quartile (rather than median) rates for his early-career associate years, on the ground that he carried lead-counsel responsibility from the outset, brought distinctive subject-matter expertise from prior fluoride research, and tried the case effectively. The court declined to bracket him at higher experience tiers than he actually had, and once he became partner it used median, not third-quartile, partner rates. Year-by-year, Connett\u2019s rates climbed from $530 (2016) to $1,033 (2025).<\/p>\n

The court found a 1.3x multiplier appropriate for Connett\u2019s lodestar \u2014 but not the requested 2.0x. Under Perdue v. Kenny A.<\/em> and Chambers v. Whirlpool<\/em>, lodestar multipliers are reserved for rare and exceptional circumstances. Plaintiffs\u2019 historic, first-of-its-kind TSCA trial victory and the nearly decade-long delay (including an unexpected two-stage trial) supported some enhancement, but factors such as Connett\u2019s subject-matter expertise and quality of representation were already baked into the third-quartile associate rates and could not be double-counted. The 1.3x multiplier mirrors the modest enhancements approved in earlier TSCA fee-litigation precedent like EDF v. EPA<\/em>.<\/p>\n

On costs, the court rejected EPA\u2019s argument that fundraising-recouped expenses are non-recoverable. Following Pickering v. Holman<\/em>, the court held the windfall, if any, belongs to the prevailing party rather than the wrongdoer, and that the rule applies even when the third-party source is targeted donor fundraising rather than insurance or an indemnitor. The remaining costs \u2014 travel, testifying-expert fees, Westlaw, and transcripts \u2014 were reasonable and were awarded in full after plaintiffs voluntarily abandoned a few items in reply.<\/p>\n

Key Takeaways<\/h2>\n