October 2011

The Government Accountability Office (GAO) has released a report on the Equal Access to Justice Act (EAJA).  The report was requested by Senators Jim Inhofe and Jim Vitter they wanted to know how much the government was paying out, who was receiving these fees and, basically, if the law was working. The GAO report concentrated mostly on the Environmental Protection Agency (EPA) and the litigation fees paid just by that agency. The report found just what we had thought it would—environmental groups are by far the biggest recipients, receiving 82% of their attorney fees reimbursed by the government.

The request made by these two senators for the GAO to investigate the possible abuse of EAJA by some environmental groups was a direct result of research done by a small group called the Western Legacy Alliance (WLA) along with the help of Karen Budd-Falen from the Budd-Falen Law Firm.

 WLA was formed about four years ago by a group of individuals concerned with what they saw happening in the courts with cases lead by radical environmental groups. They saw federal land management agencies and federal land users constantly being put on the defense by radical environmental groups that continually filed lawsuits and land management decisions that were being made by judges instead of resource specialists. These extreme groups seem to think that all human activity on federal lands is bad and they can somehow turn back the clock to before the evil Europeans came to America. Western Legacy Alliance started by looking at how radical groups were able to fund all these lawsuits and how come these environmental groups were being so successful in the courts when we weren’t. What WLA found was that the anti-everything groups and their lawyers had figured out the system. They realized that by “court shopping” they could increase their odds of winning. These groups made sure to file their cases in courts with judges that have been the most sympathetic to their causes in the past and with judges that have said they don’t believe the BLM and Forest Service are doing their jobs like they should be. WLA was not only surprised, but angered as well, when they uncovered how these anti-everything groups were funding their litigations. These groups had discovered a bottomless government funded money pit that lacked any oversight or accountability for where the money went. Through their research, WLA discovered that we resource users are not only paying for our own lawyers to fight these guys in court, but we are paying for their lawyers as well with our tax dollars. WLA also found that the government was paying the lawyers for these groups very well,  at $500 plus per hour, and many times they were getting paid when they didn’t go court because the government’s lawyers decided to settle out of court instead.  

Congress’ original intent for EAJA was to provide the average citizen more accessibility in order to defend themselves against unreasonable federal regulations, to compensate citizens for injuries caused by government actions and to deter the overreach by government regulators.

The GAO report, which looked at just the litigation against the EPA from 1998 to 2010, shows that 82% of all attorney fees reimbursed by the government went to environmental groups compared to just 7% to industry. The three environmental groups that benefited the most were the Sierra Club with net assets of $49,000,000, Earthjustice with assets of $32,000,000 and Natural Resources Defense Council with assets of $181,000,000. All together the Justice Department spent at least $43,000,000 of tax payer dollars defending just the EPA in court. I seriously doubt that Congress ever envisioned that multi-million dollar organizations would benefit the most from EAJA.

Western Legacy Alliance is no longer just public land grazers. Other groups like sportsmen, conservationists, farming organizations, logging and mining interests have all joined WLA to continue the push for EAJA reform; not seeking the repeal of EAJA because they still believe the original intent of the Act was a good one. All these groups have been working with Congress, or maybe I should say working on Congress, to make some changes to the Act. Senator John Barrasso (R-Wyo) and Rep. Cynthia Lummis (R-Wyo) have introduced a bill called the Government Litigation Savings Act (GLSA).

This is what Rep. Lummis had to say when asked why she is introducing this bill, “I am fighting to put a stop to the radical environmental communities’ best-kept secret. I recently wrote and introduced the Government Litigation Savings Act (GLSA) in the U.S. House of Representatives. GLSA returns transparency to EAJA and relieves taxpayers of the burden of paying for the litigation machines of deep-pocketed environmental organizations.

My legislation will allow EAJA to continue to work the way it was intended—veterans, seniors trying access social security, and the small business around the corner will not see EAJA change for them—but it will end the abuses that have led to such significant waste of resources and tax dollars.

Correcting the problem of repeated lawsuits is a clear money-saver for the taxpayer—but it also frees federal land managers to do the work they are supposed to do. Rather than scurrying around to meet the never-ending demands of the perpetual lawsuit crowd, the GLSA will free land managers to do the job they sign up to do—ushering through the regulatory process the types of activity on federal lands that will help our economy grow and get Americans back to work.”

I’m pretty sure these environmental groups and especially their lawyers aren’t going to let this cash cow get away from them easily. Each of these groups individually has lots of money, put them all together and they really have lots of money. Much of their money is spent on lobbying and political campaigns so we shouldn’t be so naive to think all the politicians will do the right thing and vote to reform EAJA. I think we are like David and they are like Goliath and hope what is right will prevail and it better happen sooner rather than later. If Congress is serious about eliminating the waste of taxpayer dollars then EAJA reform would be a good place to start.

Quote of the month:

“What is objectionable, what is dangerous, about extremists is not that they are extreme, but that they are intolerant.  The evil is not what they say about their cause, but what they say about their opponents.”

Robert F. Kennedy (U.S. Attorney General)