Republicans Senators Target Fee Recoveries in Public Interest Suits Against Federal Agencies

by Dan Rohlf

March 23, 2010

A small group of Senate Republicans – most from conservative western states – have introduced a bill (available via E&E, subs. required) that would require the federal government to annually disclose a list of attorney fee awards it has given to allow public interest plaintiffs to recover expenses when they have successfully challenged decisions of federal agencies. Introduction of the bills was prodded by allegations from Karen Budd-Falen, a Wyoming-based attorney whose firm represents a variety of resource user groups, that environmental organizations are receiving “billions” of dollars from the federal government through attorney fee awards authorized under fee-shifting provisions of federal law, as well as through the Equal Access to Justice Act (EAJA).

EAJA and similar fee-shifting statutes play a key role in allowing public interest organizations to challenge decisions by the federal government in court. Fee awards go to attorneys who successfully litigate a case against a federal agency, allowing lawyers to represent organizations that otherwise could not afford counsel. Some organizations also have in-house legal departments that can receive such awards, which generally cannot be shared with the organization’s non-legal staff.

Environmental groups were quick to point out that Budd-Falen’s “billions” claim was fanciful, but noted that the proposed disclosures could lead to efforts to intimidate plaintiff organizations and their counsel. Congress enacted EAJA and other fee-shifting provisions of federal law to enable and encourage interested groups and individuals to vindicate their rights when the federal government acts unlawfully. Lawsuits supported through such attorney fee awards help prevent arbitrary government actions, enforce civil rights and protect consumers, public health and safety, and the environment. Non-profits that support resource users are also eligible for awards when they succeed in court.

"If organizations are profiting by suing the federal government, American taxpayers deserve to know about it," remarked Wyoming Senator John Barrasso in announcing his introduction of the Senate version of the disclosure bill – demonstrating his ignorance of fee shifting in environmental cases. Many plaintiff organizations do not receive any money for their participation in lawsuits against the federal government, and their attorneys often work for non-profit law firms or other non-profit organizations. Additionally, the average plaintiff lawyer makes far less money than the law firms that represent resource users and industries that often benefit from decisions of federal agencies. Senator Barrasso might spend his time more fruitfully by investigating why federal agencies’ actions are so often overturned in court.

Finally, the politicians getting worked up about the fee awards in favor of environmental groups and others who bring successful court challenges neglected to mention that the federal government has a foolproof way of avoiding such payouts: agencies could simply stop violating the law in the first place.

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Daniel Rohlf is a Professor of Law and Of Counsel, Earthrise Law Center at the Lewis and Clark Law School.

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