Opinion

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 ECOLOGICAL RIGHTS FOUNDATION, No. 2:25-cv-02057-DC-SCR

12 Plaintiff,

13 v. ORDER DENYING WITHOUT PREJUDICE

PLAINTIFF’S MOTION TO ENTER

14 LIBERTY UTILITIES (CALPECO CONSENT DECREE

ELECTRIC) LLC,

15 (Doc. Nos. 9, 18)

Defendant.

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17 This is an environmental suit brought by a private enforcer under the Resource

18 Conservation and Recovery Act (“RCRA”), the Clean Water Act (“CWA”), and California’s Safe

19 Drinking Water and Toxic Enforcement Act of 1986 (“Proposition 65”). This matter is before the

20 court on the motion to enter the parties’ consent decree pursuant to the CWA and Proposition 65

21 filed by Plaintiff Ecological Rights Foundation on August 12, 2025. (Doc. No. 9.) Defendant

22 Liberty Utilities (CalPeco Electric) LLC does not oppose the pending motion. (Doc. No. 10.)

23 Pursuant to Local Rule 230(g), the pending motion was taken under submission to be decided on

24 the papers. (Doc. No. 15.) For the reasons explained below, the court will deny Plaintiff’s motion

25 to enter a consent decree, without prejudice.

26 BACKGROUND

27 Plaintiff is a non-profit public benefit corporation that focuses on protecting surface

28 waters and groundwater from pollution and degradation. (Doc. No. 1 at 7.) Defendant is a private

1 electric utility company providing electrical service to the north and south shores of Lake Tahoe,

2 California, as well as surrounding rural areas. (Id. at 1.) Plaintiff alleges that Defendant operates

3 three facilities in the Lake Tahoe area where Defendant stores and maintains utility poles and

4 other wood materials treated with pentachlorophenol and other pollutants identified by the State

5 of California as causing cancer or reproductive toxicity. (Id. at 1–2.) Plaintiff also alleges that

6 Defendant has improperly managed the treated wood products at its facilities such that the

7 pollutants contaminate nearby soil and are discharged with storm water into local water bodies,

8 including Lake Tahoe. (Id. at 3.)

9 Defendant’s alleged improper management “may present an imminent and substantial

10 endangerment to health and the environment,” in violation of the RCRA. (Id. at 60.) Plaintiff also

11 alleges that Defendant’s discharge of pollutants in storm water violates the CWA because

12 Defendant does not have the required permit for such discharges. (Id. at 9, 61.) Plaintiff further

13 alleges that the discharges violate Proposition 65 because the chemicals in those discharges

14 “pass[] or probably will pass into any source of drinking water.” (Id. at 62.)

15 On July 23, 2025, Plaintiff filed the complaint asserting three claims against Defendant:

16 (1) violations of the RCRA; (2) violations of the CWA; and (3) violations of Proposition 65.

17 (Doc. No. 1 at 60–62.) Plaintiff seeks an order enjoining Defendant from improperly discharging

18 pollutants into nearby waters and ordering Defendant to pay civil penalties, as well as Plaintiff’s

19 reasonable costs of suit, including attorneys’ fees. (Id. at 63-64.)

20 On August 2, 2025, just ten days after filing the complaint, Plaintiff filed a notice of

21 settlement to inform the court that “[t]he parties are in the process of executing a settlement in the

22 form of a [Proposed] Consent Decree.” (Doc. No. 6.)

23 On August 12, 2025, Plaintiff filed the pending motion to enter the parties’ consent

24 decree. (Doc. No. 9.) On August 22, 2025, Defendant filed a statement of non-opposition. (Doc.

25 No. 10.) On September 2, 2025, Plaintiff filed a reply in support of its motion. (Doc. No. 12.) On

26 September 30, 2025, Plaintiff filed a notice of expiration of 45-day agency review period that is

27 required under the CWA and Proposition 65. (Doc. No. 17.) On November 14, 2025, the parties

28 filed a joint request regarding the status of the pending motion. (Doc. No. 18.)

1 LEGAL STANDARD

2 “A consent decree is ‘essentially a settlement agreement subject to continued judicial

3 policing.’” United States v. Oregon, 913 F.2d 576, 580 (9th Cir. 1990) (quoting Williams v.

4 Vukovich, 720 F.2d 909, 920 (6th Cir. 1983)). “Before approving a consent decree, a district court

5 must be satisfied that it is at least fundamentally fair, adequate and reasonable.” Oregon, 917 F.2d

6 at 580. When reviewing a consent decree, a court must independently review its terms to avoid

7 “rubber stamp approval.” United States v. Montrose Chem. Corp. of Cal., 50 F.3d 741, 747 (9th

8 Cir. 1995).

9 In addition to these general requirements, a private enforcer must satisfy certain statutory

10 requirements under both the CWA and Proposition 65 before a court enters a proposed consent

11 decree. The CWA states that no “consent judgment shall be entered in an action in which the

12 United States is not a party prior to 45 days following the receipt of a copy of the proposed

13 consent judgment by the Attorney General and the Administrator.” 33 U.S.C. § 1365(c)(3).

14 Proposition 65 also requires that a private enforcer submit to the California Attorney General any

15 proposed settlement and supporting documentation at least 45 days before the hearing seeking

16 entry of the consent decree. Cal. Code Regs. tit. 11, § 3003(a).

17 ANALYSIS

18 A. Notice Requirements Under the CWA and Proposition 65

19 Here, Plaintiff provided the proposed consent decree to the California Attorney General,

20 the United States Department of Justice, and the United States Environmental Protection Agency

21 on August 4, 2025. (Doc. No. 9-4 at ¶¶ 19-20.) On September 30, 2025, Plaintiff informed the

22 court that the 45-day agency review period required under both statutes had expired. (Doc. No. 17

23 at p. 1.) Thus, Plaintiff has satisfied the notice requirements under both the CWA and Proposition

24 65.

25 B. Proposition 65 Private Enforcer Requirements

26 In addition to formal notice to the California Attorney General, Proposition 65 requires

27 that a court reviewing a private enforcer’s proposed Proposition 65 consent judgment make three

28 findings: (1) whether the warning required by the settlement complies with Proposition 65

1 requirements1; (2) whether the award of attorney’s fees is reasonable under California law; and

2 (3) whether the proposed penalty amount is reasonable. Cal. Health & Safety Code

3 § 25249.7(f)(4)(A)-(C). The “trial court must look at the three factors and if any of those factors

4 are not present it can’t approve the settlement.” Consumer Def. Grp. v. Rental Hous. Indus.

5 Members, 137 Cal. App. 4th 1185, 1207 (2006).

6 1. The Proposed Award of Attorneys’ Fees

7 Courts use the lodestar method to determine the appropriate attorney fee award. Staton v.

8 Boeing Co., 327 F.3d 938, 965 (2003). Under the lodestar method, “a district court must start by

9 determining how many hours were reasonably expended on the litigation, and then multiply those

10 hours by the prevailing local rate for the attorney of the skill required to perform the litigation.”

11 Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008). The court may “take into

12 account their overall sense of a suit, and may use estimates in calculating and allocating an

13 attorney’s time.” Id. Under California law, “the fact that the defendant agreed to pay the fee does

14 not automatically render the fee reasonable.” Cal. Code Regs. Tit. 11, § 3201(a).

15 Here, Plaintiff requests attorneys’ fees in the total amount of $283,421, allocated as

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17 Attorney Position/Years of Hourly Rate Total

Experience Hours

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Christopher Sproul Partner / 39 years $1170 10

19 Fredric Evenson Of Counsel / 27 years $1130 89

Brian Orion Associate / 20 years $1085 13.9

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Marla Fox Associate / 13 years $945 attorney work 271.33

21 $325 paralegal work

Stuart Wilcox Associate / 13 years $945 11.3

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23 (Doc. No. 9-4 at ¶ 33.)

24 1 Plaintiff’s claim is brought under California Health and Safety Code section 25249.5, which

does not require Proposition 65 warnings. (Doc. No. 9-1 at 5-6.) Thus, the proposed consent

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decree does not have any warning requirement for the court to assess.

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2 Plaintiff asserts that its lodestar in this matter is over $391,000, but pursuant to the parties’

27 agreement, Plaintiff requests an award of the reduced amount of $283,421.

28 3 Plaintiff does not indicate how many of Ms. Fox’s hours were spent on attorney work.

1 Every timekeeper except for Mr. Orion avers that they kept contemporaneous time records

2 in this matter using timekeeping software. (Doc. No. 9-4 at ¶ 32; Doc. No. 9-7 at ¶ 9; Doc. No. 9-

3 11 at ¶ 16; Doc. No. 9-13 at ¶ 11.) Plaintiff did not provide those records for the court’s review.

4 Based on the evidence before it, the court cannot determine that Plaintiff’s counsel

5 reasonably expended almost 400 hours litigating this matter. As noted above, the notice of

6 settlement was entered ten days after Plaintiff filed the complaint. While Plaintiff indicates that

7 substantial pre-litigation investigation took place before the filing of the complaint, the court

8 cannot determine whether such extensive work was appropriate without a more detailed record of

9 the hours expended and the tasks completed. See United Steelworkers of Am. v. Ret. Income Plan

10 for Hourly-Rated Emps. of Arasco, Inc., 512 F.3d 555, 565 (explaining that the party seeking

11 attorneys’ fees bears “the burden of documenting the appropriate hours expended in the

12 litigation” and must “submit evidence in support of those hours worked” such that “a neutral

13 judge can make a fair evaluation of the time expended, the nature and need for the service, and

14 the reasonable fees to be allowed.”) (citations omitted).

15 Moreover, Plaintiff does not cite any cases in this district holding that counsel’s proposed

16 hourly rates are reasonable considering the prevailing local rate for an attorney with the skill

17 required to perform this litigation. Upon the court’s initial review, Plaintiff’s counsels’ proposed

18 rates far exceed those approved for attorneys practicing environmental litigation in the Eastern

19 District of California. See Cal. Sportfishing Prot. All. v. Pac. Bell Tel. Co., No. 2:21-cv-0073-

20 JDP, 2025 WL 2799004, at *3-4 (E.D. Cal. Sep. 30, 2025) (approving hourly rate of $725.00 for

21 attorneys with 30+ years’ experience, but denying proposed rate off $650.00 for attorneys with

22 24+ years’ experience and $575.00 for attorneys with 15+ years’ experience in Proposition 65

23 claim) (collecting cases); Cal. Open Lands v. Butte Dep’t Of Pub. Works, No. 2:20-cv-00123-

24 DJC-DMC, 2024 WL 4819205, at *4 (E.D. Cal. Nov. 15, 2024) (reducing hourly rate of

25 $1,015.00 for attorney with 30+ years’ experience and $935 for attorney with 24+ years’

26 experience in case brought under Clean Water Act).

27 Thus, Plaintiff has not borne its burden of showing that the proposed attorneys’ fees are

28 reasonable in either the hours expended or the proposed hourly rate. Should Plaintiff choose to

1 submit a renewed motion to approve a consent judgment, it must substantiate the requested

2 attorneys’ fee award.

3 While the court’s finding that the proposed attorneys’ fees are not reasonable is alone

4 sufficient to deny this motion, the court will nonetheless address the reasonableness of the

5 proposed civil penalties, given that the parties may elect to return to the drawing board and refile

6 a request for entry of a consent decree.

7 2. Reasonableness of Civil Penalty Amount

8 Courts are tasked with reviewing proposed Proposition 65 settlements for reasonableness

9 because such settlements have preclusive effect on other private enforcers who may wish to bring

10 a future claim against the defendant. As a California appellate court has explained:

11 The legislature has expressed concern about such settlements, in

which a defendant attempts to insulate itself against future litigation

12 by entering into a comprehensive settlement with a private enforcer

on terms that enrich the private enforcer but do little to benefit the

13 public . . . In response to this concern, the Legislature did not strip

Proposition 65 settlements of preclusive effect, but instead increased

14 oversight of settlements involving private enforcers.

15 Consumer Advoc. Grp. v. ExxonMobil Corp., 168 Cal. App. 4th 675, 685 (2008). In determining

16 whether a civil penalty is reasonable, the court considers: (1) the nature and extent of the

17 violation; (2) the number of, and severity of, the violations; (3) the economic effect of the penalty

18 on the violator; (4) whether the violator took good faith measures to comply with Proposition 65

19 and when those measures were taken; (5) the willfulness of the violator’s misconduct; (6) the

20 deterrent effect that the imposition of the penalty will have on both the violator and the regulated

21 community; and (7) any other factor that justice may require. Cal. Health & Safety Code

22 § 25249.7(b)(2)(A)–(G).

23 If the proposed consent decree were entered as requested, Defendant would be ordered to

24 pay $35,000.00 in civil penalties under Proposition 65. (Doc. No. 9-2 at ¶ 38.) That penalty

25 amount would then be allocated in accordance with California Health and Safety Code sections

26 25249.12(c)(1), (d), such that 75% of the penalty ($26,250.00) would be paid to the California

27 Office of Environmental Health Hazard Assessment, and 25% of the penalty ($8,750.00) would

28 be paid directly to Plaintiff. (Id.) Additionally, Defendant would be ordered to pay Plaintiff

1 $30,000.00 for “oversight costs” of the settlement and pay $30,000.00 in mitigation fees to a

2 third-party nonprofit called the Tahoe Fund. (Id. ¶¶ 39, 36.) Thus, of the $378,421.00 in total

3 settlement funds contemplated by the proposed consent decree, $26,250.00 (roughly 7% of the

4 total amount) will be paid in civil penalties to the Office of Environmental Health Hazard

5 Assessment, while $322,171.00 (roughly 85%) of the settlement amount, will be paid directly to

6 Plaintiff and Plaintiff’s counsel.

7 To support this proposed amount of civil penalty, Plaintiff argues that Defendant “denies

8 any violation of Proposition 65,” “will remove sources of Listed Chemicals,” and will “take

9 further actions that will further reduce or eliminate the discharge or release of Listed Chemicals

10 from the three facilities.” (Doc. No. 9-1 at 15.) Additionally, Plaintiff notes that Defendant

11 “negotiated the [Proposed] Consent Decree in good faith,” and “incurred its own attorneys’ fees

12 and costs and agreed to reimburse [Plaintiff] for a portion of its attorneys’ fees and costs,” such

13 that the total cost “demonstrates to [Defendant] that it must be aware of and must comply with

14 Proposition 65, [but] is not so severe that it will unduly impede [Defendant’s] business

15 operations.” (Id.) Finally, Plaintiff argues that “it is reasonable to expect that other utilities that

16 use similar utility poles treated with Listed Chemicals will become aware of this settlement and

17 the financial costs to [Defendant], providing incentive for them to avoid discharges or releases of

18 Listed Chemicals from their operations as well.” (Id.)

19 However, Plaintiff fails to provide any evidence as to the profitability of Defendant’s

20 enterprise from which the court could determine the extent of the economic effect of the

21 $35,000.00 penalty.4 Plaintiff also fails to provide any evidence of the nature or extent of

22 Plaintiff’s alleged violations, and fails to indicate whether Defendant’s violations were willful

23 (other than to say that Defendant continues to deny any violation).

24 Finally, while the proposed consent decree does include injunctive measures requiring

25 Plaintiff to institute best management practices relating to the storage and disposal of potential

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27 4 Plaintiff argues in the motion that the payment of attorneys’ fees is further deterrence to

Defendant, but does not cite to any authority stating that proposed attorneys’ fees should be

28 considered in this manner when determining the reasonableness of the civil penalty.

1 pollutants in its facilities, the court is concerned that emails Plaintiff exchanged with the

2 California Attorney General’s office appear to have been inadequately addressed. Specifically, in

3 an email dated August 30, 2025, a staff member expressed “concerns” related to the proposed

4 best management practices and said that “it would be advisable for [Plaintiff] to take the

5 settlement off calendar and try to address the issues raised.” (Doc. No. 12-7 at 2.) In response,

6 Plaintiff’s Counsel indicated that Plaintiff would like to schedule a call with the Attorney

7 General’s office to address those concerns ahead of the hearing on the motion, which was

8 scheduled for October 3, 2025. (Doc. No. 12-8 at 2.) Plaintiff filed its reply brief attaching those

9 emails as exhibits on September 2, 2025, and there is no mention in that brief of any follow-up

10 phone call or discussion that assuaged the concerns that had been raised. The notice Plaintiff filed

11 on September 30, 2025 regarding the expiration of the agency review period likewise does not

12 mention any further discussions with the Attorney General’s office. Further, the joint request for a

13 status update that the parties filed on November 14, 2025 does not provide any additional

14 information. Thus, the court has not received any indication that such a conversation took place,

15 nor that the concerns raised had been sufficiently addressed such that there was no need for any

16 modifications to the proposed consent decree. Therefore, in addition to lacking sufficient

17 evidence to determine whether the proposed civil penalty is reasonable, the court finds that the

18 Attorney General’s concerns relating to the proposed injunctive measures, and the apparent

19 failure of Plaintiff to address those concerns, constitute another consideration that counsels

20 against approving the parties’ proposed consent judgment. Accordingly, the court will deny

21 Plaintiff’s motion to enter the parties’ consent decree.

22 CONCLUSION

23 For the reasons explained above,

24 1. Plaintiff’s motion to enter consent judgment (Doc. No. 9) is DENIED, without

25 prejudice;

26 2. Plaintiff may file a renewed motion to enter a consent judgment that provides the

27 court with sufficient evidence to determine whether the requested attorneys’ fees

28 are reasonable, whether the proposed civil penalty is reasonable, and addressing

1 the California Attorney General’s concerns relating to the proposed injunctive

2 relief; and

3 3. The parties’ joint request for a status update regarding Plaintiff's motion (Doc. No.

4 18) is DENIED as having been rendered moot by this order.

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7 IT IS SO ORDERED. □

g | Dated: December 10, 2025 EIU Os

Dena Coggins

9 United States District Judge

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