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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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 […]
Yee Huang | March 22, 2010
This post is the first in a monthly series on topics of international environmental law and environmental laws in other countries. Today’s post looks at the evolution of Australia’s water laws. Australia is one of the driest continents on the planet, making the country a necessary laboratory for innovative approaches to water management and governance. […]
Ben Somberg | March 19, 2010
The Texas Commission on Environmental Quality has recently proposed to weaken water quality standards in the state. As the Austin American-Statesman reported earlier this week, The proposal would draw new categories for Texas’ waterways, basing regulations on how much humans have contact with them. And it would raise the amount of allowable bacteria in the […]
Sidney A. Shapiro | March 19, 2010
The Workforce Protections Subcommittee of the House Education and Labor Committee held a hearing Tuesday on the Protecting America’s Workers Act of 2009, legislation that would, among other reforms, modernize workplace health and safety penalties. More than a decade ago, I testified at a similar hearing in the House of Representatives on the same subject. […]
Shana Campbell Jones | March 18, 2010
Tuesday, the White House Council on Environmental Quality (CEQ), the White House Office of Science and Technology Policy (OSTP) and the National Oceanic and Atmospheric Administration (NOAA) released an Interim Progress Report of the Interagency Climate Change Adaptation Task Force, a group charged by President Obama in Executive Order 13514 to develop (by Fall 2010) […]
Yee Huang | March 17, 2010
This week Water Policy Report (subs. required) reported on EPA’s exercise of residual designation authority (RDA) over stormwater discharges and a pilot stormwater-reduction trading program in Massachusetts. Together, these actions have the potential to significantly reduce stormwater discharges into local waterways. If successful, this pilot trading program could be a template for similar trading programs […]
Ben Somberg | March 16, 2010
A few congressional hearings today we’re keeping an eye on: Catch Shares. The House Natural Resources’ Subcommittee on Insular Affairs, Oceans and Wildlife will discuss “catch shares” as a fisheries management policy. Previously, CPR Member Scholar Rebecca Bratspies discussed the limitations of catch shares, and in December applauded NOAA for moving forward cautiously. Protecting America’s Workers […]
Ben Somberg | March 15, 2010
The Wall Street Journal had what seemed like a major scoop over the weekend: A federal safety investigation of the Toyota Prius that was involved in a dramatic incident on a California highway last week found a particular pattern of wear on the car’s brakes that raises questions about the driver’s version of the event, […]
Ben Somberg | March 15, 2010
A year after the contaminated drywall story went big, a “test trial” over damages from the material begins today in the U.S. District Court for the Eastern District of Louisiana. The court has posted documents regarding the case here, and outlets covering the case include the New Orleans Times-Picayune, Bradenton Herald, and Palm Beach Post.