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Alabama Power Co. v. Gorsuch

Citation: 12 ELR 20218
No. No. 78-1006, 672 F.2d 1/16 ERC 2121/(D.C. Cir., 02/05/1982) Attorneys fees awarded

The District of Columbia Circuit, applying the standard it enunciated in Sierra Club v. Gorsuch, 12 ELR 20213, grants in part and denies in part petitions for recovery of attorney fees and court costs under §307(f) of the Clean Air Act. The court denies the environmental groups' requests for attorney fees in those of the consolidated cases in which they were intervenors on the Environmental Protection Agency's (EPA's) behalf. Without deciding whether an intervenor can recover attorney fees from a party on whose side it participates, the court states that the intervenor must, at a minimum, demonstrate that its intervention made a unique contribution to the strength of that party's legal position. Since environmental groups failed to do so, their fee requests must be denied. Next, the court grants attorney fees for the environmental groups' activities as petitioners and their time spent on their request for fees. The court rejects EPA's objection to Sierra Club's claims for time spent researching an ex parte contacts issue that was subsequently withdrawn from the litigation since it was originally raised in good faith and its resolution would have made a significant contribution to the administration of the Clean Air Act. In determining whether a fee request is appropriate, a court cannot substitute hindsight for the legitimate expectations of the parties. The court also grants the District of Columbia's request for attorney fees, ruling that recovery under §307(f) is not limited to "pro-environment" entities, nor is recovery precluded where a governmental entity litigates in furtherance of its own economic interests. The court grants the environmental groups' requests for court costs pursuant to §307(f) for the same activities for which it granted their requests for attorney fees. However, the court rejects the industry parties' requests for court costs under the general costs statute and Rule 39(a) of the Federal Rules of Appellate Procedure, since those provisions are limited to prevailing parties and they did not prevail in the consolidated cases. The District of Columbia is entitled to recover its court costs under the general costs statute since it prevailed on both of the issues it raised in its petitions.

Counsel for Petitioners
Joseph Brecher
506 15th St., Oakland CA 94602
(415) 763-3594

Louis Robbins
Corporation Counsel
District Bldg., Washington DC 20004
(202) 727-6250

Michael Glenn
Chadbourne, Parke, Whiteside & Wolff
1612 K St. NW, Washington DC 20006
(202) 872-8050

Counsel for Respondent
Elizabeth Stein
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2750

Before ROBINSON, Chief Judge, and WILKEY and GINSBURG, Circuit Judges.