September 18, 2020

Feds ordered to pay costs in landmark EPA case


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Smokestacks_3958-Article-201409101352By Tony Mauro, From Supreme Court Brief

Debate continues over which side really won the landmark U.S. Supreme Court ruling on greenhouse gases issued on June 23. But court clerk has made his own judgment, of sorts; it was a half-win for each side.

In an order filed with the U.S. Court of Appeals for the D.C. Circuit, Harris said the government should pay the six energy industry plaintiffs one-half of certain printing and filing costs in the case.

That means $27,332.75 will be distributed from a U.S. Department of Justice fund to the industry groups that challenged the authority of the Environmental Protection Agency to regulate greenhouse gases in Utility Air Regulatory Group v. .

The court ruled that the EPA does have the power to regulate greenhouse gases emitted by stationary sources that already are required to obtain permits for more traditional pollutants like lead. But it also ruled that the EPA had no authority to require permits from pollution sources based solely on their emissions of greenhouse gases.

In announcing the ruling, Justice Antonin Scalia said, “the EPA is getting almost everything it wanted in this case.”

The little-noticed award of costs on July 25 by the Supreme Court’s clerk affirms, in a small way, that the case was at least a partial win for industry, Sidley Austin partner said. “My clients were very, very happy with the result,” said Keisler, who argued the case before the justices. “And the court ordered the government to pay one half of our costs.”

43 allows the winning party to recover costs of filing fees and printing the joint appendix, but not the cost of printing briefs or other documents, or legal fees. When six industry groups brought the case to the Supreme Court, they paid $52,865.50 to print the joint appendix—an unusually high amount, Keisler said, because of the extensive rulemaking that was at issue in the case. The clerk fees totaled $1,800, for a total of $54,665.50 in costs. Harris gave the petitioners “recovery of one-half costs,” or $27,332.75.

Sean Donahue of Donahue & Goldberg, who represented environmental groups supporting the EPA in the case, did not dispute the clerk’s award of half the costs to the other side.

“I think all parties would agree that the result was a partial victory for each side,” Donahue said, “although I expect different participants would characterize exactly what was won or lost somewhat differently.”

For his part, Donahue said, “the overall picture still seems pretty indisputably a big win for proponents of action on greenhouse gases under the Clean Air Act.”

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