Federal agencies have paid out more than $49 million to groups suing the government under major environmental laws since 2009, according to a Daily Caller News Foundation analysis of the Department of Treasury’s Judgement Fund.
Agencies have been hit by 512 “citizen suits” since 2009, and paid out millions to lawyers often suing to increase regulations on businesses and landowners. Three major environmental laws allow groups to bring citizen suits against federal agencies: the Clean Air Act (CAA), the Clean Water Act (CWA) and the Endangered Species Act (ESA).
Federal agencies paid out $30 million to attorneys for 237 citizen suits under the ESA. Citizen suits under CAA paid out the second most, at $13 million for 224 suits, and the 51 CWA suits resulted in $6.7 million in federal payments.
The Department of the Interior (DOI) paid out the most — $14 million — to groups suing the agency, followed by the Environmental Protection Agency (EPA) with more than $12 million in payments. The Department of Commerce was third, paying more than $12 million from citizen suits.
The agency totals are undercounted, as they don’t include the numerous occasions where departments multiple were listed in a single suit.
“These settlements happen behind closed doors, with little or no input from affected states, local entities or stakeholders,” Utah Republican Rep. Rob Bishop told TheDCNF.
“Citizen suits” are often brought by environmentalists looking to force a federal agency to issue more regulations. Environmentalists not only use such lawsuits to further their own policy goals, they can also get tax dollars, since federal environmental laws allow them to recoup attorneys fees from the government.
Bishop has been one of the biggest critics of environmentalists’ use of “citizen suits” to collude with agencies. They work with agencies like the EPA and the Interior Department to issue new regulations without any input from industry or states. These are called “sue-and-settle” lawsuits.
“Sue-and-settle” happens when environmentalists sue a federal agency for missing a regulatory deadline under the CAA, CWA or ESA, and the federal agency opts to quickly settle the case and issue a new rule instead of fighting it out in court.
The House recently passed legislation preventing federal agencies from entering into “sue-and-settle” agreements with environmental groups as part of a DOI appropriations bill.
“There is zero accountability,” Bishop, the chairman of the House Committee on Natural Resources, said. “The American people are stuck with the bill and economic consequences while receiving no real conservation benefit.”
A 2013 study by the U.S. Chamber of Commerce found 71 lawsuits between 2009 and 2012 qualified as “sue-and-settle.” These suits resulted in more than 100 new regulations, many of which imposed more than $100 million in compliance costs every year.
The Chamber found the Sierra Club used “sue-and-settle” the most of any environmental group. The group sued the government 34 times from 2009 to 2012. The Sierra Club is often represented by Earthjustice, a Sierra Club spin-off formed in 1997 that focuses on environmental litigation.
Earthjustice has received $4 million from suing federal agencies 39 times since 2009, according to TheDCNF’s findings. The group declined to speak with TheDCNF when asked about getting attorney’s fees paid for when suing the government.
The Chamber’s report noted how difficult it was to fully grasp how many such lawsuits were filed against federal agencies.
The report said “we do not know if the list of cases we have developed is a truly complete list of recent sue and settle cases.”
It’s impossible to say how much of the $49 million was paid out as a result of “sue-and-settle” suits, since the Judgement Fund has missing and inconsistent information.
TheDCNF analysis found that each of the 512 “citizen suits” paid out more than $96,000 on average for attorneys fees. The largest payout for attorneys fees was $5.6 million in 2010 as part of a settlement with DOI under the Endangered Species Act.
It’s unclear, however, who took in that $5.6 million. In fact, no one can say where the full $49 million went. The database conceals the names of the plaintiffs, and even typically hides the law firms and attorneys fighting the government, even though they’re paid with public funds.
An attorney adviser for the Judgement Fund told TheDCNF the names of plaintiffs and even of some of the attorneys and law firms being paid were redacted because of the Privacy Act.
More than 300 cases excluded the names of the lawyers and their firms and paid out nearly $26 million – more than half the total payouts and nearly seven times more than Earthjustice.
TheDCNF also found the Department of Justice’s database underestimates how much taxpayers paid out to environmentalists, due things like missing or redacted information and other inconsistencies.
The database also frequently names the plaintiff’s counsel, but doesn’t list the firm that employs them. Consequently, TheDCNF’s analysis likely undercounts the number of lawsuits firms were involved in.
See the citizen suit data below:
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