St NJ, et al v. EPA
Filing
OPINION filed [1348593] (Pages: 10) for the Court by Judge Tatel, DISSENTING OPINION (Pages: 8) by Judge Brown [05-1097, 05-1104, 05-1116, 05-1118, 05-1158, 05-1159, 05-1160, 05-1162, 05-1163, 05-1164, 05-1167, 05-1174, 05-1175, 05-1176, 05-1183, 05-1189, 05-1263, 05-1267, 05-1270, 05-1271, 05-1275, 05-1277, 06-1211, 06-1220, 06-1231, 06-1287, 06-1291, 06-1293, 06-1294]
USCA Case #05-1097
Document #1348593
Filed: 12/20/2011
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided December 20, 2011
No. 05-1097
STATE OF NEW JERSEY, ET AL.,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
UTILITY AIR REGULATORY GROUP, ET AL.,
INTERVENORS
Consolidated with
05-1104, 05-1116, 05-1118, 05-1158, 05-1159, 05-1160,
05-1162, 05-1163, 05-1164, 05-1167, 05-1174, 05-1175,
05-1176, 05-1183, 05-1189, 05-1263, 05-1267, 05-1270,
05-1271, 05-1275, 05-1277, 06-1211, 06-1220, 06-1231,
06-1287, 06-1291, 06-1293, 06-1294
On Tribal Intervenors‘ Motion for Costs of Litigation
Including Attorney Fees
Riyaz A. Kanji and David A. Giampetroni were on the
Tribal Intervenors‘ motions for costs of litigation including
attorney fees and the reply.
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Matthew R. Oakes, Attorney, U.S. Department of Justice,
was on the opposition to the Tribal Intervenors‘ motion.
Before: ROGERS, TATEL, and BROWN, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
Dissenting opinion filed by Circuit Judge BROWN.
TATEL, Circuit Judge: This is a motion for fees and costs
under section 307(f) of the Clean Air Act, which authorizes
courts to ―award costs of litigation (including reasonable
attorney and expert witness fees) whenever [they] determine[]
that such award is appropriate.‖ 42 U.S.C. § 7607(f). In the
underlying litigation, movants, a group of Native American
tribes and tribal associations, intervened on behalf of
petitioners who were challenging EPA rules regulating
mercury emissions from power plants. See New Jersey v.
EPA, 517 F.3d 574 (D.C. Cir. 2008). The Tribes also filed a
petition for review challenging an ancillary regulation not at
issue here. We vacated the mercury rules because we agreed
with petitioners that the rules violated the Clean Air Act. Id.
Petitioners sought fees, and EPA agreed to pay. EPA‘s Fees
Br. 1.
Tribal Intervenors, who also pressed for vacatur, albeit on
the basis of different arguments that we never reached, now
ask us to order EPA to pay their fees and costs. EPA objects,
claiming that Tribal Intervenors are ineligible for fee shifting.
EPA also argues that even were Tribal Intervenors eligible,
the size of their fee request is unreasonable and should be
reduced by more than two-thirds. For the reasons explained
below, we conclude that Tribal Intervenors merit a fee award.
We decline, however, to weigh in now on the appropriate
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amount; instead, we direct the parties to our Appellate
Mediation Program.
I.
In support of its argument that Tribal Intervenors are
ineligible for fees, EPA relies on two cases, Donnell v. United
States and Alabama Power Co. v. Gorsuch, in which we
limited intervenor fee recovery to circumstances where
intervenors had influenced the outcome of the litigation. But
these two cases have no applicability here because intervenors
in those cases had entered the litigation on behalf of the
government—a fact essential to the disposition in both cases.
See Donnell v. United States, 682 F.2d 240, 248 (D.C. Cir.
1982) (holding that fees should not be awarded under the
Voting Rights Act fee-shifting provision where an intervenor
entering the litigation on behalf of the Justice Department
contributes ―nothing of substance in producing th[e]
outcome‖ of the litigation); Alabama Power Co. v. Gorsuch,
672 F.2d 1, 4 (D.C. Cir. 1982) (per curiam) (rejecting fee
request under Clean Air Act section 307(f) because ―[i]f ever
an intervenor can recover attorneys‘ fees from a party on
whose side it participated,‖ it must at least make a ―unique
contribution . . . to the strength of that party‘s legal position‖).
In Donnell, we explained that when a party has intervened on
behalf of the government, the fee-shifting provision‘s
―objective is far less compelling‖: ―when the Justice
Department defends a suit . . . it is acting on behalf of those
whose rights are affected.‖ 682 F.2d at 246. Because ―[w]e
will not lightly infer that the Justice Department has violated
this statutory obligation,‖ id. at 247, the protection of
intervenors‘ interests in such cases normally requires no
intervention—and thus no fee shifting to incentivize
intervention.
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This case is very different. Here, the Tribes intervened on
the side of petitioners, not the government, and they offered
two substantial arguments based on EPA‘s alleged failure to
consider intervenors‘ treaty rights, arguments that petitioners
lacked standing to make. True, we never reached the Tribes‘
arguments, but that is immaterial. By giving us alternative
bases for resolving the case—bases petitioners were unable to
offer—Tribal Intervenors contributed to the ― ‗proper
implementation and administration of the act or otherwise
serve[d] the public interest.‘ ‖ Sierra Club v. EPA, 322 F.3d
718, 722 (D.C. Cir. 2003) (quoting Ruckelshaus v. Sierra
Club, 463 U.S. 680, 687 (1983)). Indeed, if petitioners had
been able to make the Tribes‘ arguments, the fact that we
never reached them would provide ―no basis for reducing
the[ir] fee.‖ Kennecott Corp. v. EPA, 804 F.2d 763, 766 (D.C.
Cir. 1986) (per curiam); see also Hensley v. Echerhart, 461
U.S. 424, 435 (1983) (explaining that ―[l]itigants in good faith
may raise alternative legal grounds for a desired outcome, and
the court‘s . . . failure to reach certain grounds is not a
sufficient reason for reducing a fee‖); Am. Petroleum Inst. v.
EPA, 72 F.3d 907, 911 (D.C. Cir. 1996) (awarding fees to
petitioners for all arguments supporting ―the invalidity of the
regulation at issue‖ where the court reached only one of the
five arguments).
EPA‘s view, embraced by the dissent—that we should
allow fee shifting only where an intervenor affected the
outcome of a case as determined after the fact—would
discourage interventions that play a useful role. ―It is usually
impossible to determine in advance of trial which issues will
be reached or which parties will play pivotal roles in the
course of the litigation. To retrospectively deny attorney‘s
fees because an issue is not considered or because a party‘s
participation proves unnecessary would have the effect of
discouraging the intervention of what in future cases may be
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essential parties.‖ Seattle Sch. Dist. No. 1 v. Washington, 633
F.2d 1338, 1349 (9th Cir. 1980), aff’d on other grounds, 458
U.S. 457 (1982); see also Am. Petroleum Inst., 72 F.3d at 912
(―It is not necessary that a fee-petitioning client and its
attorney have acted with the 20/20 acuity of hindsight in
developing their arguments in order to collect attorneys‘
fees.‖).
Of course, while incentivizing interventions that
contribute to the proper administration of the Act, we want to
be sure that we are not simultaneously encouraging feeseeking interventions. But we believe that courts have all the
tools they need to prevent that from happening. First, to
intervene a party must have standing in its own right, see
Military Toxics Project v. EPA, 146 F.3d 948, 953 (D.C. Cir.
1998), and thus be able to file directly as petitioner. Fee
seekers who have standing can already file their own suits, so
our decision, at most, encourages them to participate as
intervenors rather than as petitioners. See Massachusetts v.
Microsoft Corp., 373 F.3d 1199, 1235 (D.C. Cir. 2004)
(―[E]fficiency gains . . . ordinarily make intervention
worthwhile when there are common issues[.]‖); see also King
v. Ill. State Bd. of Elections, 410 F.3d 404, 421 (7th Cir. 2005)
(―[A]warding attorneys‘ fees to the intervenors promotes
judicial efficiency. Parties . . . should be encouraged to
intervene in suits such as this one, rather than bringing their
own claims in subsequent suits.‖). Second, once in the
litigation, intervenors may recover fees only insofar as they
avoid wasteful duplication of effort. As we have said about
awards of costs pursuant to Federal Rule of Appellate
Procedure 39, ―insofar as [intervenors‘] briefs duplicate what
is presented by‖ the party on whose behalf they have
intervened, their ―costs are essentially for their own account, a
kind of extra insurance for which they pay the premium.‖ Am.
Pub. Gas Ass’n v. FERC, 587 F.2d 1089, 1099 (D.C. Cir.
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1978). The same applies in the fee-shifting context, as other
circuits have held. See, e.g., Shaw v. Hunt, 154 F.3d 161, 168
(4th Cir. 1998) (―Courts should certainly deny fees to
meddlesome or officious intervenors whose services have
been counterproductive or have, at most, been duplicative of
work better left to plaintiff‘s counsel.‖). Thus, intervenors
who offer duplicative arguments in violation of our circuit
rules, Handbook of Practice and Internal Procedures of the
United States Court of Appeals for the District of Columbia
Circuit 37 (2011), may not recover for those efforts. Here,
intervenors wasted no time duplicating petitioners‘
arguments. EPA‘s Fees Br. 6. Instead, they focused on
arguments petitioners did not and could not make. In our
view, their contribution is precisely the type section 307(f)
seeks to incentivize. Third, our case law protects against
wasteful litigation by barring recovery of fees for arguments
not reached where those arguments are frivolous, and so, from
the outset, added nothing. Am. Petroleum Inst., 72 F.3d at 912
(―[S]ome issue might be so frivolous that all time spent on it
was unreasonable[.]‖). In this case, EPA never claims that
Tribal Intervenors‘ arguments were frivolous. Nor could it,
for Tribal Intervenors raised weighty issues with which EPA
vigorously engaged. See EPA‘s Merits Br. 68–80, 86–98.
Finally, under Clean Air Act section 307(f), courts retain
broad authority to deny fees when they deem them not
―appropriate‖—authority courts can exercise in a way that
ensures that intervenors get fees only where, aside from its
impact on the litigation‘s outcome, intervention assists the
judicial process.
II.
The dissent argues that Tribal Intervenors‘ challenge was
―based on a different claim for relief.‖ Dissenting Op. at 5.
The dissent is mistaken. Petitioners challenged two
regulations, the Delisting Rule, 70 Fed. Reg. 15,994 (Mar. 29,
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2005), and the Clean Air Mercury Rule, 70 Fed. Reg. 28,606
(May 18, 2005), claiming that both violated Clean Air Act
section 112. In support, they argued that the regulations ran
afoul of the statute‘s plain language and were arbitrary and
capricious. Tribal Intervenors challenged the exact same
regulations, arguing that they violated the exact same section
of the exact same statute. Embracing (but not repeating)
petitioners‘ arguments, they added their own—that the
regulations violated the statute‘s plain language and were
arbitrary and capricious because of their effect on tribal
fishing rights. If accepted, their arguments would have
produced the exact same relief that petitioners sought, i.e.,
vacatur of the regulations. See Tribal Merits Br. 44 (―Tribal
[Movants] ask that this Court: (1) vacate the section 112(n)
Revision Rule; (2) vacate the Clean Air Mercury Rule[.]‖).
Under American Petroleum, these arguments are all in
support of a single claim. There, petitioners challenged EPA
regulations on five separate grounds. Am. Petroleum Inst., 72
F.3d at 911. Much like the parties here, they argued that EPA
violated the Clean Air Act, failed to consider certain
environmental impacts, and acted arbitrarily and capriciously.
See Am. Petroleum Inst., 52 F.3d 1113, 1116 (D.C. Cir.
1995). In the end, we reached only one of their arguments,
invalidating the regulations under the statute‘s plain meaning.
Am. Petroleum Inst., 72 F.3d at 911. Rejecting EPA‘s
contention that the non-dispositive arguments were in fact
distinct claims, we explained: ―Petitioners did not raise any
claims distinct and separate from the one on which they
prevailed. They pursued only one claim for relief—the
invalidity of the regulation at issue. They argued five
defensible bases for that invalidity.‖ Id. That is precisely the
case here. Petitioners and Tribal Intervenors ―pursued only
one claim for relief—the invalidity of the regulation at issue,‖
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id. And, as in American Petroleum, they offered several
―defensible bases for that invalidity,‖ id.
According to the dissent, ―[i]t is difficult to see how an
argument is especially helpful . . . when it in no way
contributes to the resolution of a case.‖ Dissenting Op. at 6
(internal quotation marks omitted). But our case law is to the
contrary. In American Petroleum, we awarded fees for each
argument not reached, including the narrowest, finding that
none was ―so frivolous that all time spent on it was
unreasonable.‖ 72 F.3d at 912. In doing so, we recognized
that alternative arguments, though ultimately not dispositive,
may nonetheless be helpful to the judicial process and thus to
―the proper implementation and interpretation of the Act.‖ Id.
at 911. In Alabama Power, we even awarded fees for an
argument petitioners withdrew because ―had it remained in
the case, [the argument‘s] resolution would have contributed
importantly to the administration of the Act.‖ 672 F.2d at 4–5
& n.18. ―[W]e will not use hindsight to deny an otherwise
appropriate recovery.‖ Id. at 5 n.18. Indeed, ―narrow‖
arguments of the kind belittled by the dissent, Dissenting Op.
at 5, can be especially helpful, offering the court a basis for a
disposition that makes as little law as possible, best preserves
agency discretion, or otherwise promotes the purposes of the
Clean Air Act. We cannot imagine why we would want to
discourage that kind of assistance by drawing an arbitrary line
between petitioners and intervenors.
Here, had we not disposed of the case on the basis of
petitioners‘ contentions, the Tribes‘ arguments, which sought
to force EPA to comply with its Clean Air Act obligations,
would, like petitioners‘ withdrawn arguments in Alabama
Power, have ―contributed importantly to the administration of
the Act,‖ 672 F.2d at 5 n.18. And rather than summarily
dismissing these supposedly ―anemic‖ arguments, Dissenting
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Op. at 3, EPA devoted twenty-four pages of its brief
responding to them. EPA‘s Merits Br. 86–98 (Part IV, arguing
entirely that ―EPA Properly Considered Tribal Treaties in the
Section 112(n) Rule‖); id. at 68–80 (defending itself against
―Tribal Petitioners[‘] conten[tion] that EPA‘s freshwater
health hazard assessment‖ is arbitrary and capricious). Only
by measuring Tribal Intervenors‘ contribution against our
ultimate decision—a measure we have rejected for evaluating
a petitioner‘s eligibility for fees—could one discount the
significant role they played in this litigation.
Further attempting to marginalize Tribal Intervenors‘
contribution, the dissent criticizes them for ―br[inging] a
narrow, fact-based challenge to an ancillary regulation,‖
unlikely to ―play a critical role in this case.‖ Dissenting Op. at
5. But this conflates the Tribes‘ role as intervenors, in which
they challenged the Delisting and Mercury Rules, and their
role as petitioners, in which they challenged a third
regulation, the ancillary Reconsideration Rule. Tribal
Intervenors seek no fees for the latter. They seek fees only
with respect to the vacatur of the Delisting and Mercury
Rules—the regulations lying at the very heart of this case. See
Tribal Fees Br. 3–4.
The dissent claims that today‘s decision takes an
―extraordinary step.‖ Dissenting Op. at 1. Again, the dissent is
mistaken. Other courts have awarded fees in similar
circumstances. For instance, the Fourth Circuit rejected an
outcome-based rule (like the one urged by the dissent),
awarding fees to intervenors who, though ultimately found to
lack standing, had nonetheless ―play[ed] an active role‖ in the
litigation. Shaw, 154 F.3d at 163. The Ninth Circuit likewise
awarded fees to intervenors whose arguments it never
reached. Seattle Sch. Dist. No. 1, 633 F.2d at 1350. In that
case, in which plaintiffs challenged an initiative banning race-
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conscious school desegregation, the district court bifurcated
the litigation: Phase I would consider plaintiffs‘ argument that
the initiative was unconstitutional, and Phase II would
consider a separate argument—made by intervenors—that the
school districts were operating racially dual school systems.
Id. at 1341. Because plaintiffs prevailed at trial, the court
never even had to hear intervenors‘ Phase II arguments. The
court nonetheless awarded fees for the ―substantial time and
effort‖ intervenors spent ―prepar[ing] for trial on the Phase II
issues,‖ declining to ―retrospectively deny attorney‘s fees‖
solely because intervenors‘ participation ultimately ―prove[d]
unnecessary.‖ Id. at 1349–50.
III.
Tribal Intervenors seek a total of $305,389 in fees and
costs. EPA insists that the request is excessive and should be
reduced to $64,793. Rather than sorting through the parties‘
competing claims, we direct the question to our Appellate
Mediation Program. See, e.g., Clifton Power Corp. v. FERC,
No. 94-1775 (D.C. Cir. Feb. 12, 1997) (per curiam order
referring consideration of motion for attorney fees to the
Appellate Mediation Division).
So ordered.
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BROWN, Circuit Judge, dissenting: In today’s decision,
the court takes the extraordinary step of awarding fees to
Tribal Intervenors, who intervened on the side of a petitioner
in a Clean Air Act challenge and offered an argument that
other petitioners lacked standing to make. As the court
acknowledges, we never reached the Tribal Intervenors’ claim
and their argument had no effect on the outcome of the
litigation. Nevertheless, the court finds the Petitioners are
entitled to a fee award for contributing to the “proper
implementation and administration” of the Act or otherwise
“serv[ing] the public interest.” (Op. at 4).
Section 307(f) of the Clean Air Act, 42 U.S.C. § 7607(f),
permits the award of attorneys’ fees in certain proceedings
“whenever [the court] determines that such award is
appropriate.” In an early case dealing with this fee provision,
Judge Wilkey warned that such broad and ill-defined
authority was likely to lead to an “all-but-the-frivolous”
standard—a result he considered deeply at odds with
Congressional intent. Alabama Power v. Gorsuch, 672 F.2d
1, 16–17 (D.C. Cir. 1982) (Wilkey, J., dissenting). “If
Congress meant for ‘appropriate’ to mean that all nonfrivolous [applicants] would recover, it surely would have
said so.” Id. Despite Judge Wilkey’s pessimism, this Court
initially resisted the temptation to use the “vagueness of the
statute . . . to validate the whim of any judge.” Id. at 16. And
other courts, interpreting similarly worded provisions, have
generally avoided establishing such a dramatic alteration in
the fee award structure, concluding that intervenors are
eligible for fees only when they play a “significant role in the
litigation.” See Shaw v. Hunt, 154 F.3d 161, 168 (4th Cir.
1998); Wilder v. Bernstein, 965 F.2d 1196, 1204 (2d Cir.
1992); Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528,
1535 (9th Cir. 1985); see also Donnell v. United States, 682
F.2d 240, 248 n.16 (D.C. Cir. 1982) (noting even a prevailing
party would not be entitled to fees where it merely caught “a
train on its way out of the station,” played “no part in firing
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the boiler, getting up a head of steam, or opening the throttle,”
but “just went along for the ride”).
In Shaw, for example, the court concluded that a fee
award was appropriate in the exceptional circumstances
where intervenors, deprived of standing during the course of
the litigation, had taken an active, unique role in the litigation
and contributed to its success. Shaw, 154 F.3d at 166.
However, the court emphasized the narrowness of its holding:
“Moreover—and this is a point we stress—it is not every
permissive intervenor who will be entitled to fees. Courts
should deny fees to intervenors who have failed to play a
‘significant role in the litigation.’” Id. at 168. Similarly, in
Seattle School Dist. No. 1 v. Washington, 633 F.2d 1338,
1341 (9th Cir. 1980), plaintiff school districts and intervenors
challenged Initiative 305, an anti-busing initiative. Although
the court concluded that a fee award was permissible for an
issue that had not been fully litigated, it pointedly avoided
making any broad generalization about the propriety of such
an award under different circumstances. In fact, the court
declined to award fees for intervenors’ participation in Phase I
of the litigation—during which the case was resolved—
because the school districts were fully capable of litigating the
unconstitutionality of Initiative 305 and the intervenors’ role
was de minimis. Id. at 1349. By contrast, the court found
intervenors’ substantial time and effort spent preparing for
Phase II could be compensated because the intervenors’
essential role in that phase of the litigation was “apparent
from the onset of [the] case.” Id. If Initiative 350 was found
to be constitutional in Phase I, which was a “substantial
likelihood,” the school districts would be unwilling to argue
they were operating discriminatory school districts. Id. at
1349–50. In that case, the entire burden of litigating Phase II
would have fallen on intervenors. Id. at 1349. Tellingly, no
other court has ever determined an intervenor merited a fee
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award for the sort of anemic effort the court rewards today.
After more than two decades, the “all-but-the-frivolous”
standard Judge Wilkey feared has become a reality in this
circuit.
Apparently, the court opts for such a radical departure
simply because it can. The court says our precedent—which
has consistently imposed the more exacting “significant role”
standard— is distinguishable. That much is true. In Alabama
Power v. Gorsuch, 672 F.2d at 4, we rejected a fee request
under section 307(f) of the Clean Air Act—the same section
at issue here—because an intervenor seeking to recover fees
from the party on whose side it participated had failed to
make any “unique contribution . . . to the strength of that
party’s legal position.” In Donnell v. United States, 682 F.2d
at 248–49, we rejected a request for fees under the Voting
Rights Act where an intervenor on behalf of the Justice
Department had “contributed nothing the Government did not
also contribute.” That case focused heavily on the fact that
the party had intervened on behalf of the government, a
circumstance that made the fee-shifting provisions’ objectives
“far less compelling.” Id. at 246. But it also endorsed the
broader principle that “[i]f a lawsuit is successful, but the
intervenor contributed little or nothing of substance in
producing that outcome, then fees should not be awarded.”
Id. at 248.
I find the analytical force of those earlier
precedents—particularly the principles articulated in
Donnell— undiminished by the factual differences in this
case.
The broad grant of statutory discretion in Section 307(f)
has usually been interpreted as a narrow exception to the
traditional rule that only prevailing parties are entitled to fees.
“Section 307(f) was meant to expand the class of parties
eligible for fee awards from prevailing parties to partially
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prevailing parties—parties achieving some success . . .”
Ruckelshaus v. Sierra Club, 463 U.S. 680, 682-88 (1983).
But the Court was careful to note that neither “trivial success
on the merits” nor “purely procedural victories” would
automatically justify fee awards. Id. at 688 n.9. Tribal
Intervenors can claim only a procedural victory. As the
government points out, they challenged a regulation that was
eventually overturned solely on grounds raised by other
parties. This makes their claim much more akin to the wholly
unsuccessful plaintiffs whose claim was rejected in
Ruckelshaus. More significantly, nothing about Tribal
Intervenors’ fact-based challenge to the EPA’s compliance
with treaty fishing rights had any impact on EPA’s authority
to administer and implement the delisting rule under Section
7412(c)(9)—the basis on which the case was resolved.
We have held that the court need not parse the success of
each separate argument in support of a single claim when
determining eligibility for fees. See Am. Petroleum Inst. v.
EPA, 72 F.3d 907, 912 (D.C. Cir. 1996). But that does not
mean every separate claim—even one completely unrelated to
the successful strategy—must be deemed a success because it
sought the same remedy. New Jersey and fourteen additional
states and environmental organizations challenged the
“Delisting Rule,” which had removed power plants from the
list of sources whose emissions are regulated under Section
7412. See 70 Fed. Reg. 15,994 (Mar. 29, 2005). Tribal
Intervenors elected not to file a petition for review of the
Delisting Rule, but rather challenged the ancillary
“Reconsideration Rule,” a proceeding in which the EPA made
two substantive changes to the Clean Air Mercury Rule but no
substantive change to the Delisting Rule. See 71 Fed. Reg.
33,388 (June 9, 2006). They participated in the challenge to
the Delisting Rule only as intervenors, and made no
arguments with respect to the determinative issue in the case.
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Tribal Intervenors’ claim, a fact-based challenge to the
Reconsideration Rule based on treaty rights, was not resolved
by the Court, even though the Court ultimately granted the
remedy they sought. See City of Sherill v. Oneida Indian
Nation of N.Y., 544 U.S. 197, 213 (2005) (explaining
difference between a claim and a remedy). Intervenors should
not be rewarded simply for challenging the same regulation
based on a different claim for relief arising out of a different
legal theory. See Hensley v. Eckerhart, 461 U.S. 424, 434-35
(1983); Sierra Club v. EPA, 769 F.2d 796, 801-02 (D.C. Cir.
1985).
The court attempts to justify its decision by claiming that
denying attorneys’ fees to Tribal Intervenors would
discourage future intervenors from bringing “useful” claims
(Op. at 4). Its concern is overblown. While it is admittedly
impossible for parties to determine in advance what issues
will be reached by the court, it is entirely possible for a
litigant to make a reasonable estimation of how large an
impact his issue is likely to have on the litigation, in light of
the other challenges being raised. See Seattle Sch. Dist. No. 1,
633 F.2d at 1349–50 (noting there was a “substantial
likelihood” that the initiative at issue would be found
constitutional and that intervenors’ role would therefore be
critical). In this case, the petitioners raised a sweeping
challenge to the EPA’s authority to administer and implement
the Delisting Rule—a claim that, if successful, would resolve
all of Tribal Intervenors’ issues. The likelihood that Tribal
Intervenors, who brought a narrow, fact-based challenge to an
ancillary regulation, would play a critical role in this case was
infinitesimally small from the outset. Refusing to reward
them for their decision to pile onto the petitioners’ different—
and much more substantial—claim would cause little danger
of discouraging “useful” interventions in the future. It would
merely force potential intervenors to conduct a basic cost-
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benefit analysis to determine whether their claim is
sufficiently likely to make an actual impact to justify the risk
they will bear their own costs. While “20/20 acuity of
hindsight” isn’t required, Am. Petroleum Inst., 72 F.3d at 912,
willful blindness should not be permitted.
The court also claims that Tribal Intervenors assisted the
process by providing an alternative basis for its disposition
(Op. at 8). It is difficult to see how an argument is “especially
helpful,” however, when it in no way contributes to the
resolution of a case. In fact, tangential arguments piled on by
self-interested intervenors force the agency—and the court—
to waste valuable resources evaluating and addressing
arguments that will have no impact on the court’s ultimate
decision. The Court seems to forget that the EPA must
respond to all arguments lest it be deemed to have conceded
them. Here, the EPA spent twenty-four pages of its reply
brief addressing arguments made by Tribal Intervenors,
wasting valuable resources that might otherwise have been
devoted to rebuttal of the petitioners’ much more
substantial—and ultimately victorious—claims. Were Tribal
Intervenors’ arguments costless, it might be tempting to grant
their request. However, “we live in a world of scarce
resources and the question inevitably becomes how best to
allocate them.” Alabama Power, 672 F.2d at 29 (Wilkey, J.,
dissenting). In this case, it was clear from the outset that
Tribal Intervenors’ fact-based objection to the ancillary
Reconsideration Rule would not play a substantial role in
petitioners’ sweeping and substantial challenge to the
overarching Delisting Rule. Moreover, allowing all but the
most frivolous or duplicative intervenors to recover attorneys’
fees encourages “additional filings of dubious value in suits
already of notorious complexity.” Alabama Power, 672 F.2d
at 30 (Wilkey, J., dissenting).
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7
The court seeks to reassure us that its holding will not
encourage fee-seeking interventions, pointing out “all the
tools” courts have to prevent that from happening (Op. at 5).
The tools, though, turn out to be few and frail. The majority
overstates the value of the standing requirement because it
fails to recognize the substantial practical difference between
participating in litigation as a petitioner or as an intervenor.
Our litigation system forces the petitioner to literally “put his
money where his mouth is” by bearing all costs associated
with his suit. Even where Congress departs from the
“American rule” by allowing recovery of attorneys’ fees, a
petitioner must attain some success on the merits of its claim
to warrant reimbursement. Ruckelshaus, 463 U.S. at 682–84.
Thus, a rational plaintiff will bring suit if and only if the
expected judgment would be at least as large as his expected
legal costs, i.e. the total legal costs discounted by his
probability of losing at trial. See Steven Shavell, Suit,
Settlement, and Trial: A Theoretical Analysis Under
Alternative Methods for the Allocation of Legal Costs, 11 J.
Legal Stud. 55, 58 (1982). Because intervenors bear far fewer
costs—and thus shoulder far less risk—than petitioners, a
party with a marginal claim would be substantially more
likely to intervene than it would be to file suit in its own right.
The majority skews the calculus even further by allowing an
intervenor to hitch its completely unrelated claim to a
promising challenge to the same regulation. Its holding
encourages parties to pile on claims that are not sufficiently
meritorious to justify filing in their own right.
The majority conflates, and ultimately eviscerates, the bar
against “frivolous” litigation and the court’s discretion to
determine what is “appropriate.” Under the court’s newly
minted standard, it is no impediment to a fee award that an
intervenor’s argument is irrelevant to the outcome,
nonsubstantive, and does nothing to strengthen the primary
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8
legal position. The court defines “appropriate” so broadly that
an intervenor is now entitled to fees unless the challenge is
patently frivolous.
It is hard to see what is inappropriate about requiring
intervenors to carefully consider what is likely to enhance and
promote the purposes of any given litigative effort. Creating
a risk—even a small one—that intervenors will be required to
bear their own costs will at least force them to undertake a
basic cost-benefit analysis to determine when to avoid
spending money. See Richard L. Revesz and Michael A.
Livermore, Retaking Rationality 12 (2008) (“In the absence
of an obvious endpoint [for spending], we need a mechanism
that tells us when to stop spending money. Cost-benefit
analysis is that mechanism[.]”). And if parties want to pile on
just for the sake of piling on—to pursue some frolic of their
own—why would it be inappropriate to require them to pay
the costs of that indulgence?
Since preserving the public fisc from unreasonable
depredations also serves the public interest, I would not be so
eager to find new ways to waste Other People’s Money.
I dissent.
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