Op-ed by Katie Baltzor
What began as a law with good intentions to “protect the small business community from governmental overreach” and to “make sure that a party cannot be harassed by unjustifiable government activity solely because of the prohibitive expenses of attorneys’ fees”, the Equal Access to Justice Act (EAJA) has morphed into a revenue source for litigious environmental groups.
EAJA was signed into law in 1980 and originally, EAJA dollars were tracked and reported to Congress. However, in 1995, the tracking and reporting requirements were eliminated due to the small amount of payouts. Once these requirements were excluded, the number of lawsuits filed by extreme environmental groups soared and the payouts became enormous. The lack of traceability precludes anyone from knowing where the money actually goes.
From 2001-2010 the General Accounting Office (GAO) attempted to track EAJA funds and found $44.4 million was paid out on 525 different cases. This information was based on only 10 of 75 agencies within the Department of Agriculture and Department of Interior that kept records. Sixty-five of these agencies didn’t have a tracking method to know the amount they paid in attorney and legal fees. Between September 2009 and August 2010, $5.8 million in legal fees were paid to 20 environmental groups in suits against the U.S. Fish & Wildlife and the Bureau of Reclamation. In that same year, the U.S. Forest Service paid over $6 million.
So where does this money come from to pay these legal fees? Directly out of the federal agencies’ budgets! Money that could be allocated for water development, range health improvement, prescribed burns, juniper encroachment or Sage Grouse habitat are being used instead to pay the attorney fees of environmental groups. Federal agency employee time is required to be spent on paperwork to prevent lawsuits more than ever before, as environmental groups have become very adept at finding reason to sue.
Environmental groups utilize several tactics to gain EAJA dollars. Many times they use a “sue and settle” method. They file a lawsuit against a federal agency and then work out a settlement agreement. This is just as legally binding as a court decision, but by design, the settlement is negotiated in private, thus effectively eliminating public participation or comment by affected individuals.
Another tactic is to overload an agency with requests or protests. An example of this is when WildEarth Guardians (WEG) proposed over 600 species at one time to be listed as endangered or threatened. This caused the agency to miss a timeline, thus providing the WildEarth Guardians basis to sue. The Fish & Wildlife Service couldn’t possibly achieve the required paperwork and research to complete their reports in the time requirement, thus WEG sued the agency for the missed timeline.
Often environmental groups join forces in a lawsuit and if they win on even one point, they could each be reimbursed for their legal fees. Currently, Western Watersheds Project (WWP), WildEarth Guardians, Center for Biological Diversity and Prairie Hills Audubon Society has joined forces to file a lawsuit against Assistant Secretary Schneider, BLM and USFS regarding the Sage Grouse Plan. They list many issues and have the potential to have each of their legal fees paid due to the Equal Access to Justice Act. Environmental groups have found certain federal judges that are much more sympathetic to their cause and attempt to have their cases heard by those judges. Meeting the eligibility criteria and prevailing on even one issue, does not guarantee the court will grant you the EAJA award.
Individuals, local governments, associations, and businesses have a cap of their net worth for eligibility for EAJA funds. However, non-profits (501(c) (3)) are eligible regardless of their net worth. For example, Sierra Club has a net worth over 80 million dollars and can still tap EAJA funds and has found a loophole to exceed the hourly attorney rate stated in the law.
EAJA caps the rate for attorney fees at $125 per hour; however, the court may determine an increase in this amount due to cost of living or other “special factors”. Environmental lawyers meet this criterion according to several courts. Karen Budd-Falen, a Wyoming attorney, found with Endangered Species Act cases, the average reimbursement of attorney fees is approximately $491 per hour. Her research has shown the highest hourly fee for environmental attorneys has been $775 per hour. While this is an obvious problem with EAJA, it is not the only one. The lack of accountability costs taxpayers millions each year. Our tax dollars are supporting these litigating environmental groups, many of which strive to limit, if not eliminate, multiple uses of public land.
There are other issues with EAJA and some changes have been proposed. In late 2015, The House of Representatives passed HR3279 Open Book on EAJA. This requires EAJA funds to be tracked, create a searchable database with award information and require a report to Congress of all transactions. The Senate version of this bill is S350 Judgment Fund Transparency and currently sits in the Senate Judiciary Committee. I encourage you to write your Senators to encourage them to support this bill. This abuse of a well-intended law needs to end!
Katie Baltzor
Burns, OR
Katie Baltzor is a rancher in Burns, Oregon and a member of NCBA, Oregon Cattlewomen's, Oregon Cattlemen's, Oregon Farm Bureau and Harney County Cattlewomen's.
Photo credits to Joe Gratz, Flickr Public Domain photo
