September Term, 2012 EPA-70FR15993 EPA-70FR28606 EPA-71FR33388 Filed On: December… v. Environmental Protection Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 05-1097 September Term, 2012
EPA-70FR15993
EPA-70FR28606
EPA-71FR33388
Filed On: December 19, 2012
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
BEFORE: Rogers, Tatel, and Brown, Circuit Judges
O R D E R
Upon consideration of Tribal petitioners’ petition for panel rehearing, it is
ORDERED that the petition be denied. It is
FURTHER ORDERED that the opinion in New Jersey v. EPA, 687 F.3d 386
(D.C. Cir. 2012) (per curiam) be amended as follows:
(1) Pages 390-91, delete the paragraph beginning with “Intervention motion: . . .”
and insert in lieu thereof the following paragraph:

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 05-1097 September Term, 2012
Intervention motion: Movants request fees for 35 hours of partner time spent on their
ultimately unopposed motion to intervene. Urging us to award compensation for only 15
hours, EPA insists that Movants’ request is excessive for an unopposed motion and that
the work should have been done by attorneys billing at lower rates. We agree partly with
EPA and partly with Movants. Contrary to EPA, the fact that the motion was ultimately
unopposed is not dispositive because the lack of opposition was unforeseeable at the time
the motion to intervene was filed. See API, 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.”). In his declaration, Tribal
Intervenors’ counsel states that he asked EPA counsel whether the agency would oppose
the Tribes’ motion to intervene, and counsel “indicated that the United States would not be
in a position to make a decision regarding the motion until after it was filed.” Kanji Reply
Decl. ¶ 32. EPA does not challenge this representation. With regard to EPA’s second point,
Movants explain that their law firm, Kanji & Katzen, used a partner for the motion because
the associates were “extremely busy.” Kanji Reply Decl. ¶ 33. This justification is entirely
unacceptable. Indeed, we suspect that had the firm been charging a private client for these
hours, it would have billed the partner time at the hourly rate of the “extremely busy”
associates. The taxpayers are surely entitled to the same courtesy. Accordingly, we shall
award compensation of 25 hours, the midpoint between what the parties each believe was
the value of the work performed.
(2) Page 393, line 27, delete the number “355.95” and insert in lieu thereof the
number “365.95.”
(3) Page 393, line 29, delete the amount “$108,609.24" and insert in lieu thereof
the amount “$111,660.49.”
It is
FURTHER ORDERED that the order filed July 20, 2012, which accompanied the
opinion, be amended to reflect that the costs awarded to movants are $111,660.49.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Michael C. McGrail
Deputy Clerk
Page 2

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