New Jersey et al.v EPA.

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. 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. The Appeals Court vacated the mercury rules because it agreed with petitioners that the rules violated the Clean Air Act. Id. Petitioners sought fees, and EPA agreed to pay. The Appeals Court indicated, "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. . . we conclude that Tribal Intervenors merit a fee award. We decline, however, to weigh in now on the appropriate amount; instead, we direct the parties to our Appellate Mediation Program."