Vitter and Bishop Bills Aim to Weaken Enforcement of Existing Environmental Protections

A student-run environmental group operating out of a 150-square-foot office at Lewis and Clark Law School in Portland, Oregon has an important lesson to teach congressional Republicans.

In 2004, the Northwest Environmental Defense Center – a small group with an annual budget of a few thousand dollars and a single staff member – secured more fines for violations of pollution control laws than the collective efforts of 110 enforcement personnel at the State of Oregon’s Department of Environmental Quality. NEDC student volunteers investigate illegal polluters – as well as actions by state and federal agencies that violate environmental laws – and turn over worthwhile cases to local attorneys who work for the group on a pro bono basis. The attorneys recruited by NEDC, many of whom are recent law school grads still paying off their own student loans, are able to spend the long hours necessary to press the group’s enforcement cases because the volunteer lawyers can recover their fees if they ultimately prevail – which they often do.

It is a perfect example of the polluter pays principle. Polluters and government agencies which themselves ignore environmental regulations are forced to foot the bill for enforcement of the laws they’ve flouted. And Oregonians come out ahead by getting cleaner air and water at no cost to state taxpayers.

Similar scenarios play out across the country. Many of the most significant federal environmental enforcement actions are brought by citizen groups and their volunteer attorneys. Many law school environmental law clinics, which provide both hands-on experience to law students and no-cost representation to public interest groups, also rely on fee recoveries to fund their enforcement work (such as at the Pacific Environmental Advocacy Center, a clinic that I work with at Lewis and Clark). Now, however, Republicans in Congress are trying to severely limit citizen enforcement of environmental laws.

Last week, Senator David Vitter and Representative Rob Bishop, along with a host of conservative co-sponsors, introduced legislation that would prevent plaintiffs from recovering attorneys fees from the federal government if they win a lawsuit that stops or slows energy production, irrigation, fishing, grazing, or logging; if a successful lawsuit diminishes the value of private property; or if a suit eliminates or prevents one or more jobs. If passed, the bill would cripple citizen enforcement of environmental laws against federal agencies (the bill also features a number of other anti-environmental actions).

Most organizations working to protect the environment cannot afford to hire attorneys. And lawyers generally can’t afford to work for free; without the possibility to recover fees if they win, most attorneys will be unable to take on government agencies no matter how egregious those agencies’ conduct. Even most non-profit organizations that can afford staff attorneys rely heavily on fee awards garnered by their attorneys to be able to afford a legal staff.

Proponents of the legislation to eliminate fee awards portray environmental groups and their attorneys as obstructionists getting rich on taxpayer dollars while dragging down the economy and standing in the way of federal agencies doing their jobs. But reality reveals a very different picture. Most attorneys working for public interest groups, or on staff at non-profit organizations, get by on a small fraction of the salaries of their downtown law firm counterparts. More importantly, however, attorney fee awards to environmental plaintiffs do not reward obstructionist tactics – courts by law may grant such fees only when they determine that the federal government has violated the law and its actions were not “substantially justified.”

This fact reveals the true intent behind the proposed legislation – to allow drilling for oil, cutting down trees, spewing toxics and other pollution, and paving over natural areas and habitat without worrying too much about complying with the legal safeguards Congress established protect the environment and the health of the American public. In other words, the proposal to eliminate fee awards to those who enforce environmental regulations represents a willingness to selectively wink at the rule of law in American society. Though they’re willing to lock up criminals, Republicans in Congress are driving to take away the most effective tools for holding the government – and those it allows to pollute and develop – accountable for meeting the environmental standards set out under federal law.