Appalachian Power Co v. EPA

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

–————
No. 99–1200 September Term, 2002
Filed On: March 7, 2003

APPALACHIAN POWER COMPANY, ET AL.,
PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF
ENVIRONMENTAL PROTECTION, ET AL.,
INTERVENORS

Consolidated with
99–1205, 99–1206, 99–1246, 99–1266, 99–1285, 99–1289,
99–1291, 99–1292, 99–1293, 99–1295, 99–1299, 99–1300,
99–1301, 99–1303, 99–1304, 99–1306, 99–1307, 00–1013,
00–1021, 00–1022, 00–1024, 00–1038, 00–1042, 00–1050,
00–1071, 00–1074, 00–1077, 00–1083, 00–1087, 00–1088,
00–1096, 00–1097, 00–1098, 00–1099, 00–1102, 00–1103,
00–1105, 00–1106, 00–1107, 00–1108, 00–1109, 00–1110,
00–1113, 00–1114, 00–1119, 00–1122,
00–1123, 00–1125, 00–1128

On Motion for Attorneys’ Fees
–————
Before: GINSBURG, Chief Judge, SENTELLE, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.

ORDER
Upon consideration of the motion for attorneys’ fees, the
response thereto, and the reply, it is
 2

ORDERED that the motion be denied. A remand occa-
sioned by an agency’s failure to respond to comments is a
purely procedural victory for the petitioner and is therefore
insufficient to support an award of attorneys’ fees under 42
U.S.C. § 7607(f). See Sierra Club v. EPA, 769 F.2d 796, 806
(D.C. Cir. 1985). In the most similar case in which this court
did award attorneys’ fees, Michigan v. EPA, 254 F.3d 1087,
1091 (D.C. Cir. 2001) (vacating EPA rule for want of notice
and comment before promulgation), the Agency had to reopen
the record or receive new comments on remand, thus creating
a greater probability that it would alter the rule.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk

BY:
Deputy Clerk