We ran a story in January 2011 exposing environmental groups’ abuse of a federal law known as the Equal Access to Justice Act (EAJA). This exploitation has resulted in American taxpayers literally paying groups with affirmed anti-hunting, animal rights agendas untold millions of dollars in legal fees so that they can repeatedly sue our own government.
Now, as reported by the Boone and Crockett Club, two new studies have been released that shed additional light on the scope of this problem.
Studies released independently by Notre Dame Law School and the Government Accountability Office (GAO) show that environmental groups pad their claims for reimbursed legal fees using the EAJA, and the United States government is not keeping track of these expenditures.
The Notre Dame law review article shows that when the EAJA was passed in 1980 it was intended to provide seniors, veterans, and small businesses—essentially plaintiffs without deep pockets—with the financial wherewithal necessary to take the federal government to court if they felt their rights or interests were being violated. The EAJA accomplishes this by allowing certain classes of plaintiffs to be reimbursed for attorney’s fees if they successfully sue the government.
However, the EAJA is now being utilized by environmental groups to get pay-backs for their lawsuits as well.
Furthermore, the GAO study shows that no one really knows how much money has been handed over to these groups, but the amounts are at least several million dollars a year.
The way these groups have been able to abuse the system is by flooding federal agencies with bulk lawsuits on environmental and wildlife issues, many of which center around Endangered Species Act (ESA) petitions. For example, the Center for Biological Diversity filed a petition in April 2010 requesting that the U.S. Fish and Wildlife Service (USFWS) review 404 species in the Southeastern United States for ESA consideration. Another group, WildEarth Guardians, submitted two petitions that year totaling 1,156 species that it felt warranted ESA protections.
By law, the USFWS has 90 days to consider each species considered in a petition, and it must make a final determination in one year. The groups filing these bulk petitions know the government doesn’t have the resources to meet such strict deadlines, and the anti-hunters sue the government for missing the deadline. In the end, they profit by requesting—and receiving—huge EAJA payouts for their legal fees.
In another example, an animal rights group won a legal ruling in 2008 regarding wolves and petitioned a federal court in Missoula, Mont., for $388,370 in attorney’s fees. The judge awarded $263,099, which was based on an hourly rate of $300—even though the EAJA limit for attorney’s fees is $125 per hour. In 2007, the same group got back $280,000 over a similar case involving Great Lakes wolves.
Oftentimes, the litigation is based on procedural technicalities—such as a missed deadline—and not on an actual environmental or wildlife issue of substance.
“This study made me a strong supporter of the Equal Access to Justice Act for its intended beneficiaries,” said Lowell E. Baier, the author of the Notre Dame law review article and President Emeritus of the Boone and Crockett Club. “This law is for seniors, veterans, and small businesses that have trouble getting their legal fees reimbursed, yet many environmental lawsuits are reimbursed without ever showing a violation of environmental law. Environmental law is clear about which lawsuits should be repaid under environmental statutes; we should stick to that clear direction and follow the intent of Congress.”
In order to restore the original intent of the EAJA, NRA and a coalition of more than 100 groups—including the Western Legacy Alliance and Boone and Crockett—are supporting H.R. 1996, the Government Litigation Savings Act, which will reform the EAJA to prevent such abuse in the future. A similar bill, S. 1061, has been introduced in the Senate.
“Litigation has become a routine step in environmental policy because much of it is about lobbying against decisions and forcing do-overs,” said Jennifer Ellis, president of the Western Legacy Alliance. “It’s not that so many environmental policies are wrong, it’s that people disagree over them. Businesses protect themselves—especially against those who admit they want to destroy us—and activists try to get their way instead. Whoever files that kind of lawsuit should pay their own way.”
Introduced by Sen. John Barrasso (R-Wyo.) and Rep. Cynthia Lummis (R-Wyo.), the Government Litigation Savings Act would implement various measures to restore fairness to the EAJA and end the practice of perpetual litigation. Specifically, the bill would improve legal fee reimbursements to seniors, veterans, and small businesses, enforce attorney fee reimbursement under environmental law, and reinstate tracking and reporting requirements to make EAJA more transparent.
The GAO report confirms the obvious need to resume accounting, which stopped in 1995. Some of the highlights of that report include:
-- GAO asked 75 bureaus and agencies at USDA and the Department of the Interior (DOI) for records on payments, but only 10 of these 75 could provide data on cases and attorney fee reimbursements. Even the records provided were incomplete and unreliable, based on manual calculations from older files, and the memory of career employees. Moreover, some records may overlap, so GAO is not even certain of their totals.
-- Even these sparse records show that millions of dollars are going out the door. GAO identified $4.4 million per year of EAJA payments to environmental groups during the period of 2000-2010 from suits against the 10 units of USDA and DOI that had any records at all.
-- GAO’s minimum numbers do not add up to totals available from public court records and tax returns over the same period. Public federal court records from just 13 federal courts revealed $5.2 million in legal fees per year, compared to GAO’s estimate of $4.4 million, as tabulated by legal staff for the Western Legacy Alliance. A broader analysis including additional federal court records and public tax returns from just 20 environmental organizations showed $9.1 million reimbursed during FY2010 alone, as demonstrated by attorneys for the Boone and Crockett Club.
“Clearly, the more you look, the more money you find,” said Baier.
Ellis added, “There are two problems here: getting the money to the right people for the right reasons, and keeping track of the money.”
This GAO report, which was requested by the U.S. House and Senate, is the 10th Congressional directive or proposal introduced since 2010 on EAJA payments. Some of these measures address only accounting for funds. H.R. 1996, as reported from the House Judiciary Committee, is now the latest and most comprehensive proposal on both use of and accounting for EAJA payments.
“When the government stopped tracking EAJA payments in 1995, it was a dream come true for radical environmental groups,” said Lummis. “Lack of oversight has fueled the fire for these groups to grind the work of land management and other federal agencies to a halt—and it does so on the taxpayer’s dime.”
For additional background on EAJA abuse, please read:
Anti-Hunting Lawsuits and the Cost to Taxpayers
Bill Would Prevent Extremists from Abusing EAJA