United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
–———— No. 99–1268 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 99–1270, 99–1274, 99–1276, 99–1277, 99–1279, 99–1280, 99–1281, 99–1286, 99–1287, 00–1169, 00–1187, 00–1189, 00–1190, 00–1191, 00–1192, 00–1194
On Motion for Attorneys’ Fees –———— Before: EDWARDS and SENTELLE, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
ORDER Upon consideration of the motion for attorneys’ fees, the response thereto, and the reply, it is ORDERED that the motion be denied. A remand occa- sioned by an agency’s failure to respond to comments is a
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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