National Chicken Council v. Environmental Protection Agency
687 F.3d 393
D.C. Cir.
2012
Check Treatment
Docket

NATIONAL CHICKEN COUNCIL, et al., Petitioners v. ENVIRONMENTAL PROTECTION AGENCY, Respondent Growth Energy, et al., Intervenors.

No. 10-1107

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 13, 2012. Decided July 20, 2012.

393, 394, 395, 396, 397

banc,” Movants have failed to meet their burden to show that all hours requested were reasonably expended and avoided duplication. We shall therefore make the requested reduction.

Attorney fees: Movants seek compensation for 227.5 hours spent on their motion for fees, including 42.5 hours for the initial motion and 185 hours for their efforts responding to EPA‘s opposition. EPA argues that these hours are “grossly excessive,” Updated Opp. 17, pointing out that we have previously treated 69 hours for fee work as “perhaps excessive for a fee petition of relatively ordinary difficulty,” . Although, as our earlier opinion in this case readily demonstrates, Movants’ request was hardly one of “ordinary difficulty,” Movants have nonetheless failed to demonstrate that the undertaking was so herculean that it required nearly six weeks of attorney time. Given this, we shall award compensation for the 91 hours suggested by EPA.

In sum, Movants reasonably expended 355.95 hours on the litigation. Multiplying this by $305.125 per hour, we award Movants $108,609.24 in compensation for attorney time. We also award Movants the $3,186.50 in costs they seek and that EPA does not contest.

So ordered.

BROWN, Circuit Judge, concurring:

An old song laments that “nothing from nothing leaves nothing.” BILLY PRESTON, Nothing from Nothing, on THE KIDS AND ME (A & M Records 1974). Logically, it should follow that nothing plus nothing leads to the same result. But, in the rarefied atmosphere of attorneys’ fees litigation and in light of this Court‘s divided decision in , nothing times nothing is apparently worth a great deal. Since I believe that no matter how carefully we parse the separate parts of the intervenors’ request, anything above zero is excessive, I hope the en banc court will revisit this question in the near future. Meanwhile, under compulsion of our earlier case, I reluctantly concur.

Catherine E. Stetson argued the cause for petitioners National Chicken Council, National Meat Association, and National Turkey Federation. With her on the briefs were Mary Helen Wimberly, William L. Wehrum, and Lewis F. Powell III.

James B. Dougherty, Jonathan F. Lewis, Helen D. Silver, and Ann B. Weeks were on the briefs for petitioners Friends of the Earth, Inc. and National Wildlife Federation.

Daniel R. Dertke, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief was Ignacia S. Moreno, Assistant Attorney General.

John C. O‘Quinn argued the cause for intervenors in support of respondent. With him on the brief were William H. Burgess, David B. Salmons, Sandra P. Franco, Bryan M. Killian, Charles H.

Knauss, Shannon S. Broome, Christopher D. Jackson, Alex D. Menotti, Roger R. Martella, Jr., Thomas G. Echikson, and Rachel D. Gray. Jeffrey B. Clark, Sr., Stuart A. Drake, and Thomas R. Lotterman entered appearances.

Alan Kashdan was on the brief for amicus curiae Government of Canada in support of respondent.

Before: HENDERSON, BROWN, and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge:

The National Chicken Council, National Meat Association, and National Turkey Federation petition for review of EPA‘s interpretation of a provision in the Energy Independence and Security Act of 2007 (“EISA“). Because the petitioners fail to show that a favorable ruling would redress their claimed injuries, we dismiss their petition on standing grounds.1

The EISA directed EPA to promulgate regulations ensuring that transportation fuel sold in the United States contains certain minimum levels of renewable fuel on an average annual basis. See 42 U.S.C. § 7545(o)(2)(A)(i), (o)(2)(B)(i). To fulfill that mandate, EPA modified its existing trading program, under which producers generate credits called Renewable Identification Numbers (“RINs“) for each gallon of renewable fuel. See 40 C.F.R. § 80.1426. EPA required refiners and importers of transportation fuel to purchase the number of RINs needed to satisfy their proportional share of the EISA‘s annual targets. See 75 Fed. Reg. 14,670, 14,676 (Mar. 26, 2010).2

Ethanol qualifies as a “renewable fuel” under certain circumstances. Ethanol from a production plant that commenced construction after December 19, 2007 (the date of the EISA‘s enactment) counts as renewable fuel if it “achieves at least a 20 percent reduction in lifecycle greenhouse gas emissions” in comparison to fossil fuels. 42 U.S.C. § 7545(o)(2)(A)(i). Ethanol from a plant that commenced construction on or before December 19, 2007 is not subject to that requirement; it counts as renewable fuel whether it reduces emissions or not. In policy speak, these older ethanol plants are “grandfathered in.”

The statutory provision at issue in this case is an extension of the EISA‘s grandfather clause. It states that, “[f]or calendar years 2008 and 2009, any ethanol plant that is fired with natural gas, biomass, or any combination thereof is deemed to be in compliance . . . with the 20 percent reduction requirement [in 42 U.S.C. § 7545(o)(2)(A)(i)].” 42 U.S.C. § 7545, Transition Rules. In its Notice of Proposed Rulemaking, EPA claimed the provision was ambiguous because it did not specify whether [ethanol plants fired with natural gas and/or biomass] are deemed to be in compliance only for the period of 2008 and 2009, or indefinitely.” 74 Fed. Reg. 24,904, 24,925 (May 26, 2009). After considering public comments, EPA adopted the latter interpretation in its Final Rule. It read the provision to mean that ethanol plants fired with natural gas and/or biomass that commenced construction in 2008 or 2009 (“qualifying ethanol plants“) are deemed compliant with the 20 percent greenhouse gas reduction requirement “indefinitely.” 75 Fed. Reg. at 14,688. Functionally, that meant qualifying ethanol plants could generate RINs indefinitely without having to ensure that their ethanol met the emissions-reduction requirement.

The petitioners argue EPA‘s interpretation of the provision is inconsistent with the statutory text, and they ask us to set it aside. To establish their Article III standing to seek such relief, they must show that they have suffered (or will soon suffer) a “concrete” injury in fact; that their injury is or will be “fairly . . . trace[able]” to EPA‘s interpretation of the provision; and that there is a “substantial likelihood” their injury would be redressed if we set EPA‘s interpretation aside. .

The petitioners represent members of the meat industry who purchase corn to use as animal feed. Their theory of injury rests on three factual claims: (1) by permitting qualifying ethanol plants to generate RINs indefinitely without having to meet the emissions-reduction requirement, EPA‘s interpretation of the provision will lead qualifying ethanol plants to produce more ethanol than they otherwise would have; (2) this increase in ethanol production by qualifying ethanol plants will lead to an increase in the overall demand for corn; and (3) this increase in overall corn demand will lead to an increase in the price of corn. The petitioners contend their injury would be redressed if we vacated EPA‘s interpretation because a narrower interpretation would cause qualifying ethanol plants to reduce ethanol production, thereby decreasing corn demand and reducing the price of feed.

After oral argument, we ordered the parties to submit supplemental briefs (and affidavits, if needed) on standing. See Feb. 14, 2012 Order. As we stated in that Order, under , the petitioners can only meet their burden of proof on the redressability element of standing if they “set forth specific facts in the form of an affidavit or other evidence which show a substantial probability that vacatur of [EPA‘s interpretation] would cause corn prices to [fall].” Feb. 14, 2012 Order, at 1.

We now find the petitioners have fallen short. If we were to vacate EPA‘s interpretation, the only consequence for qualifying ethanol plants is that they would no longer be able to generate RINs without complying with the EISA‘s emissions-reduction requirement. The petitioners fail to show a “substantial probability” that qualifying ethanol plants would reduce their ethanol production as a result of that change. True, EPA claimed in the Final Rule that “many of the current technology corn ethanol plants may find it difficult if not impossible to retrofit existing plants to comply with the 20 percent [greenhouse gas] reduction threshold,” and that “[g]iven the difficulty of meeting such threshold, owners of such facilities could decide to shut down the plant.” 75 Fed. Reg. at 14,689-90. But that statement referred to all grandfathered plants, not just the qualifying ethanol plants, and there are good reasons to think the qualifying ethanol plants will find it much easier than the other, older grandfathered plants to meet the emissions-reduction requirement should they have to. See Declaration of Geoff Cooper, ¶ 9 (deeming it “very likely” the qualifying ethanol plants could meet the emissions-reduction requirement because of their more advanced and eco-friendly processes).

The petitioners also cite several comments ethanol producers submitted during the rulemaking proceeding. See Petitioners’ Supplemental Br. 2-4. These comments assert it would be difficult to retrofit ethanol plants to meet the emissions-reduction requirement, but the comments do not satisfy the petitioners’ burden of proof for one of two reasons: they are either not specific to qualifying ethanol plants, or they do not claim ethanol plants would be forced to shut down or reduce production if they had to comply with the emissions-reduction requirement to generate RINs. Read most generously for the petitioners, the comments establish that some grandfathered ethanol plants might struggle to meet the emissions-reduction requirement, and some of those plants might be forced to shut down as a result. They do not establish a substantial probability that qualifying ethanol plants would be forced to close down or reduce corn demand, and they are not nearly as strong as the evidence found sufficient to confer standing in , the case on which the petitioners rely most heavily.

We should not be understood to foreclose any challenge to EPA‘s interpretation of the provision; a different petition, properly supported, could allow us to address the merits of EPA‘s reading. But the petitioners here have failed to establish their standing, and their petition for review is accordingly

Dismissed.

BROWN

CIRCUIT JUDGE

Notes

1
This consolidated appeal originally also included Friends of the Earth‘s and National Wildlife Federation‘s petitions for review, but we granted their motion to voluntarily dismiss their petitions on February 10, 2012.
2
For example, in 2012, the EISA‘s annual renewable fuel target is 15.2 billion gallons. 42 U.S.C. § 7545(o)(2)(B)(i)(I). If a company produces 10% of all transportation fuel produced in the United States in 2012, then that company would have to obtain RINs equivalent to 10% of the EISA‘s 2012 renewable fuel target, or 1.52 billion gallons. See 75 Fed. Reg. at 14,676.
Read the detailed case summary