With substantial justification test not met, EAJA expenses awarded.

Byline: Barry Bridges

Plaintiffs who spent years fighting water pollution citations are entitled to reasonable litigation expenses from the Department of Environmental Management pursuant to the state's Equal Access to Justice for Small Businesses and Individuals Act, the Rhode Island Supreme Court has decided.

The EAJA, recognizing the "tremendous power" of state agencies, provides for the reimbursement of reasonable litigation expenses "when [an] individual or small business prevails in contesting an agency action, which was without substantial justification."

That last element was the crux of the case at hand, with the Supreme Court determining that DEM was not "substantially justified" in pursuing the charges, as the agency knew or should have known that environmental problems at the plaintiffs' property were actually caused by the state Department of Transportation.

While working on a nearby project, DOT, without the plaintiffs' knowledge, had replaced a 15-inch discharge pipe with an 18-inch pipe, resulting in an increased discharge of turbid (sediment-laden) water into a stream.

"With respect to the [notice of violation to the plaintiffs] concerning [the] alleged violations of [water pollution statutes and regulations], we are of the opinion that DEM was not substantially justified in its actions leading up to the adjudicatory proceedings," Chief Justice Paul A. Suttell wrote for the unanimous court. "As we have explained DEM knew or should have known of DOT's involvement, and that DOT, not plaintiffs, should have been held responsible."

In quashing a lower court judgment denying expenses, Suttell said the Supreme Court was convinced that "this is the type of 'unjust action by the state' that the EAJA was designed to ameliorate."

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"In a civil situation, we don't often get to use the term 'justice,' but if there is any case where there is an abuse of power by the state, this is it."

Joelle C. Rocha, Providence

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The 25-page decision is Rollingwood Acres, Inc., et al. v. Rhode Island Department of Environmental Management, et al., Lawyers Weekly No. 60-082-19. The full text of the ruling can be found here.

Joelle C. Rocha of Providence represented the plaintiffs.

"In a civil situation, we don't often get to use the term 'justice,' but if there is any case where there is an abuse of power by the state, this is it," Rocha said.

She said her clients were willing to take the litigation as far as it could go, which is...

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