Legal and regulatory experts agreed on several tactics for curbing excessive environmental litigation and the costly delays associated with the weaponized use of the courts at a House Oversight Subcommittee hearing yesterday.
“I think the biggest issue is the impact of litigation on getting federal practices and projects done,” Ryan Yates, Director of Congressional Relations at the American Farm Bureau told the House Oversight Subcommittee on the Interior, Energy, and Environment. “Certainty you’re looking at projects put in place by the Bureau of Land Management, Fish and Wildlife Service the Forest service, oftentimes you see litigation being used to halt projects or delay projects which ultimately have an impact on the rural economy.”
While the delays mean mounting costs for those seeking permits, experts also pointed to the fees litigants can claim as being costly for the United States Government. Currently provisions in most laws pertaining to environmental protection and natural resources, like the Clean Water Act, Endangered Species Act or Surface Mining Control Act, allow for citizens bringing suit to recover attorney’s fees from the federal government. Alternatively, recovery of legal fees is also stipulated under the Equal Access to Justice Act (EAJA).
But panelists said these laws are being abused by groups aiming to derail project approvals, who can amass settlements topping six figures from government agencies they challenge in court. Under EAJA, the law stipulates only groups with less than $7 million in assets and 501(c)3 organizations with fewer than 500 employees can be awarded fees. The law has been used as recourse by individuals who bring the government to court to obtain owed benefits from agencies like the Social Security Administration or Department of Veterans Affairs.
“Today, however, wealthy environmental organizations take advantage of the law’s loopholes and exemptions to obtain large fee awards from our federal agencies,” U.S. Rep. Greg Gianforte (R-Mont.), chairman of the subcommittee, said in his opening statement. “In these cases it is an abuse of taxpayer dollars and it’s a burden on agencies that are already devoting considerable resources to guarding against and responding to litigation.”
These settlements are based upon the number of attorney hours devoted to the litigation multiplied by a hypothetical market value, though the market value can differ depending on the court and jurisdiction.
“At this point the fee awards seem to be inconsistent in their application under the current statutes. If you go from place to place across the country depending on what the courts are you can get very inconsistent and unpredictable results,” said Deputy Assistant Attorney General of Environment and Natural Resource division Jonathan Brightbill told the subcommittee.
“What we see is the value of legal services as being provided is out of proportion to the fee awards. And courts are reluctant, not all courts have experience in determining rates and there’ve been a lot of changes in how the legal market operates.” Lawson Fite, general counsel at the American Forest Resource Council added. “The committee would make progress by continuing its work in looking at rate equalization across the country and I think the fact that if you file in Washington, D.C., versus the Ninth Circuit determines what kind of rate is going to be awarded, that just doesn’t seem fair,” he said.
Sara Colangelo, environmental law and policy program director at Georgetown University’s Law School took issue with the assertion that the fees were exuberant.
“The fee awards are so miniscule that the agencies don’t even track them for their internal purposes and their budget planning. So this is not substantially burdensome to the agency,” Colangelo said, pointing out that in 2010, the Fish and Wildlife Service devoted only 0.5 percent of its entire agency budget to endangered species work on litigation.
Panelists also spoke of the regulatory process and how interest groups have ample opportunity to disrupt the permitting process at various stages of planning.
“In two recent cases, the Ninth Circuit halted or overturned collaborative projects without recognizing the years of work that went into building consensus or the public interest in supporting collaborative work,” Fite said in his written remarks. “Instead, the court bought into dubious arguments made by fringe groups who reject even the idea of forest collaboration and oppose removal of so much as a single tree from the forest.”
There was a consensus among the panel that more data collection among agencies is necessary to inform next steps in improving the process. Currently, agencies do not track expenditures relating to attorney’s fees and settlements. There were also calls for more standardization so that procedural developments don’t change depending on which court is hearing a given case.
“One of the things Congress could look at is standardize and come up with more bright line rules regarding how these things are applied and take some of the discretion out of the hands of individual courts and judges because it leads to expensive and inconsistent collateral litigation,” Brightbill said.
Vice Chairman, U.S. Rep.Paul Gosar (R-Ariz.) noted during his line of questioning that the Energy and Natural Resources Committee passed a bill earlier in the day that would address many of the concerns raised during the hearing.
The bill, HR 3608, would amend the Endangered Species Act (ESA) and require the Fish and Wildlife Service to track, report to Congress and make publicly available data detailing expenditures made in relation to ESA litigation—including attorney’s fees, and number of staff personnel dedicated to these lawsuits. The bill would also impose “reasonable” caps on attorney’s fees and calls for the posting of the “best scientific and commercial data available that are the basis for each regulation.”
The bill passed through committee by a vote of 19-12.
