Feature:Opinion

Biting the hand that feeds them

Photo of Jacob Laksin
Jacob Laksin
Co-Author, "The New Leviathan"

While the economy limps along, one industry is thriving: Environmental lawsuits against the federal government are moving ahead at a steady pace — and taxpayers are picking up the tab for the expensive litigation.

Fox News reports this week that left-wing environmental groups are using a little-known 1980 law called the Equal Access to Justice Act (EAJA) to sue the federal government on a wide range of fronts and then collect millions of dollars in legal fees from the very federal agencies they are suing. Not only that but, according to a recent study by the Government Accountability Office (GAO), the government is not even tracking in any organized fashion how much it’s paying out to these groups. For example, only 10 of 75 agencies with the U.S. Department of Agriculture and the Department of Interior could provide the GAO with data on attorney fee reimbursements. The government agencies that do keep track of their attorney fee reimbursements signed some $44.4 million worth of checks between 2001 and 2010.

Still, we have some clues about the amounts at stake. In an August 2011 study, the GAO reported that between 2003 and 2010, the Treasury Department paid $14.2 million in attorneys’ fees just to those plaintiffs suing the Environmental Protection Agency (EPA). That means that the total for all federal agencies is in the tens of millions of dollars every year. EAJA thus serves as a hugely expensive vehicle of collusion between the government and environmental groups to advance the environmental movement’s political agenda on the taxpayer’s dime.

Ironically, the legislation that is now being exploited by powerful environmental groups seeking government payouts was initially intended to help small businesses fend off the burden of big government. In 1980, facing a chorus of complaints from the business community that government regulations were squeezing their profits, as well as an opponent in Ronald Reagan who promised to dramatically cut the government’s role in the economy, Jimmy Carter launched a panicked effort to reduce the regulatory imposition on small firms. Parallel to that effort, Congress passed several pieces of legislation designed to make it easier for small businesses to challenge the government. One was the EAJA, which ordered federal agencies to pay the legal costs of firms that successfully challenged their rulings.

The act’s original purpose was sound and indeed admirable. Small businesses and private citizens that might be deterred from bringing suit by the prospect of facing off against a phalanx of government lawyers would now have a legal incentive to forge ahead with their challenges. But the EAJA’s provisions were also extended to cover 501(c)(3) nonprofits, including environmental groups. Before long, some of the country’s most powerful environmental law firms were availing themselves of the EAJA to force the government to bend to their political agenda and pay their legal fees — sometimes as much as $750 an hour — in the process. The result was a gross perversion of the political process, paid for by the unknowing American public.

Consider one group that has sued the government under the aegis of the EAJA, the National Resources Defense Council (NRDC). With $88 million in annual revenue and $181 million in net assets, the NRDC can hardly be seen as a stand-in for the little guy. In fact, the group is so politically powerful that it styles itself as the “shadow EPA.” But that hasn’t stopped the NRDC from collecting government reimbursement for its litigious activities. In 2008, for instance, the NRDC filed suit to get the U.S. Navy to suspend use of mid-frequency active sonar during its training exercises, which the group claimed had a possible, if unproven, deafening effect on whales. The suit reached as high as the Supreme Court, which rejected the NRDC’s arguments in the case of Winter vs. NRDC, ruling that the evidence of environmental damage was dubious at best and that the nation’s security outweighs the need to protect whales from high-powered sonar.