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How One Green Group Games the System for Headlines and Profit
This is the first in a series of “Monkey-Wrenching the West” reports to be published in the months ahead, which are aimed at measuring the economic, fiscal, judicial and human costs imposed on the American West by professional green extremists.
January 23, 2012 Americans for Prosperity-Colorado
Monkey-Wrenching the Courts
How One Green Group Games the Legal System for Headlines and Profit
Litigation Nation The extreme litigiousness of American society has by now been widely noted and remarkedupon. What was once decried as a “litigation explosion” has today become a routine, widelyaccepted state of affairs in the clogged U.S. court system, which most Americans now seem resigned to, even if not pleased about. But perhaps nowhere are these lawsuit-happy tendencies more on display than in the arena of environmental and land management policy, where virtually all decisions are made not through democratic action but by judges – many of them activist judges – who have been empowered to rule like royalty by hyperlitigious environmental groups and poorly-conceived and crafted environmental laws. That these endless (and endlessly expensive and time-consuming) judicial battles have become counterproductive and paralyzing is obvious to many, but not to all, unfortunately. Many of the nation’s largest environmental groups continue to turn to saturation litigation as their primary means of achieving objectives. Not a week goes by that the newspapers aren’t dotted with one or two reports of green-inspired lawsuits being threatened, implemented or settled. Federal judges, not federal legislators or federal land managers, make most management decisions on our vast federal land holdings -- lands that hold the key to the nation’s economic as well as ecological well-being. The threat of potential litigation hangs over virtually every decision a forest manager or park superintendent makes. Huge amounts of bureaucratic time and effort are invested in either guarding against lawsuits or complying with court orders. The everpresent specter of litigation contributes to what former U.S. Forest Service Chief Dale Bosworth called “analysis paralysis” – the tangle of bureaucratic and legal red tape that prevents federal agencies from taking action or accomplishing their missions, leading to the gradual deterioration and benign neglect of the very lands that greens claim to love. And many of these court cases can profoundly impact private land owners and private companies as well. The combined burden of this relentless judicial onslaught – a burden that falls not just on the warring parties and the court system, but on government agencies, private entities and entire communities and states -- is hard, maybe impossible to measure, or even fathom, when one attempts to grasp the whole picture. But there’s no question that environment-inspired
litigation imposes huge costs on the country and economy, and has real-world consequences for companies and property owners, even while achieving questionable ecological benefits. Greens Gone Wild This report attempts to highlight the problem by focusing on the activities of one relatively small but highly-litigious environmental group, Sante Fe-based-WildEarth Guardians, or WEG, which was formed with the 2008 merger of Forest Guardians and Sinupu. WEG is relatively new to the green lobbying game, as compared to longer-established players like The Sierra Club or Audubon Society, but it stands out in its eagerness to use litigation as a tool of intimidation, influence and policy-making. In one recent year, as an example, the group cranked-out lawsuits at a rate of roughly one per week. What’s also interesting -- and to some probably troubling -- about WEG is the group’s canny ability to tap into taxpayer dollars to help subsidize its activities, in the form of legal fee reimbursements and government grants. This may strike some as ironic, given that the subsidies frequently come from the same government agencies that WEG spends its days suing, lobbying, protesting or accusing of procedural or regulatory misconduct. While it might be unfair to say WEG makes money suing the government, or that it couldn’t support itself without government grants, the fact is that a growing share of the group’s annual revenue comes from legal fee reimbursements or government grants – money that’s coming from taxpayers who may adamantly oppose the group’s extreme agenda and view WEG as a threat to their property rights, jobs, access to public lands and so on. Equally disturbing is the fact that many of the group’s activities seem aimed at tying federal agencies in knots and generating even more paperwork, diverting funds that could go for conservation and preservation to defending lawsuits and complying with court orders. The direct government support the group receives thus represents only the tip of an extremely large iceberg, which remains largely submerged from public view. With that in mind, let’s learn more about what WEG is doing and what it might be costing us. Litigation Central, USA WEG was founded in 1989 as Forest Guardians, which originally organized in opposition to a New Mexico logging project but quickly expanded its areas of interest and activism to include opposition to public lands cattle grazing and the protection of riparian areas. It already was beginning to shift focus toward energy, opposing drilling and coal mining, at the time of the 2008 merger. Although only four years old in its present form, WEG has already made a considerable splash (and wreaked considerable havoc, depending on one’s viewpoint) by pursuing a strategy of saturation litigation.
WEG and sometime-collaborator Center for Biological Diversity are believed to be the two most litigious groups in the country. A March 2011 report in The New York Times (“Cascade of Petitions Overwhelms Fish and Wildlife”) notes that 90 percent of the 1,230 species that environmental groups petitioned for Endangered Species Act protection since 2007 have come from the two groups – with the two accounting for more than 100 lawsuits against the Interior Department alone. Issues of continuing focus for WEG are evicting ranchers from public lands, stopping coal extraction (particularly in Wyoming’s Powder River Basin), pushing the EPA to adopt ever more stringent and costly regulations, blocking drilling projects, fighting for the reintroduction of wolves and forcing the listing of hundreds of endangered species, sometimes in mass petitions. The group isn’t particularly large by green lobby standards, with less than 20 paid staff, including 3 attorneys, or wealthy: its 2010 budget was just over $1.6 million. But don’t be fooled by the group’s modest footprint and somewhat low profile. It’s a lawsuit-making machine. A Strategy of Saturation Litigation So just how litigious is WEG? Very, in one word. But let’s crunch the numbers. To help answer that question, we attempted to document all WEG legal activities between 2008 and 2011 in all federal courts, from the district court level to the United States Supreme Court, using the PACER legal research tool. Over this four year period, WEG initiated a total of 123 cases in federal district Number of Suits Brought by WildEarth courts and 17 in Guardians the Circuit USFS USDA Courts of Public Service Co. of Colorado NTSB Appeals. In NPS Lamar Utilities Board, total, WEG was FWS FEMA involved in 145 EPA DOJ cases across the DOI United States in DOE DOD that 4 year DOC City of Ward, Colorado period. Catron County, New Mexico
BLM Arkansas River & Power APHIS Number of Suits 0 10 20 30 40 50 60 70 80
WEG’s litigation strategy is exclusively aimed at
influencing government. Our analysis found that 100 percent of its cases were filed against governmental entities; 95 percent of them federal agencies. Consequently, the entire cost of defending, hearing and complying with these court actions falls directly on taxpayers. The graph above illustrates the number of suits brought by WEG against each governmental entity. The intensity of legal activity has fluctuated over time, but it reached fever pitch in 2010, when WEG filed 58 cases; a rate that roughly equates to one new lawsuit every week. As of mid-year 2011, WEG’s pace appeared to be slowing, with it filing just 19 cases by the end of September. Not too surprisingly, given WEG’s Western base of operations, and the fact that this region serves as ground zero for many environmental battles, most of the group’s litigation is concentrated in the West. In particular, WEG filed the majority of its suits in the District of Colorado, where it filed 38 cases; the District of New Mexico, where it filed 18; and the District of Arizona, where it filed 15. In addition, WEG participated in 32 suits in the District Court of the District of Columbia -- a number consistent with the fact that 95 percent of the parties WEG sued are headquartered in Washington. Causes of Action WEG primarily relies upon three laws for its causes of action: the Endangered Species Act (“ESA”), the Clean Air Act (“CAA”) and the Administrative Procedures Act (“APA”). At their most distilled, the ESA is intended to protect wildlife, the CAA is intended to ensure that the air is clean and the APA sets forth procedures that federal administrative agencies must follow in carrying out their duties. Each of these laws contains a citizen-suit provision that allows citizens, such as WEG, to sue the government by alleging that the government did not properly follow the laws. The APA is unique in that it allows citizens to sue for alleged violations of some other law, by claiming that the agency acted “arbitrarily and capriciously” in carrying out its duties under the other law. ESA’s citizen-suit provisions are also notably lenient: a lowering of the threshold for what “legal standing” a litigant must demonstrate that may have been wellintended at the time of ESA’s passage, but which in hindsight might be seen as an engraved invitation to lawsuit abuse and serial suing. Another likely invitation to litigation is the Equal Access to Justice Act, or EAJA, which might just as well have been called the Easy Access to Largesse Act, since it allows litigants to collect reimbursement for legal expenses if they’re deemed a “prevailing party” in a suit. (We explore EAJA and its implications in greater detail elsewhere in this report.) The most common cause of action relied upon by WEG is the ESA, under which WEG brought 65 cases. WEG relied upon the APA in 32 cases, basically asserting that an agency acted arbitrarily and capriciously in carrying out its duties under a variety of other laws. Following the APA, WEG utilized the CAA in 28 cases. In addition, WEG brought 5 suits under the Freedom of
Information Act, to compel the federal government to release requested records, often relating to decisions on levels of wildlife protection. Measuring “Success” WEG prevailed in approximately 77 percent of its cases. But that sounds better than it is. Few, if any, of WEG’s cases actually made it to trial. Instead, the cases were almost always resolved through some sort of summary procedure. “Prevailing” in a case routinely took the form of a settlement agreement or a consent decree; Disposition of WildEarth Guardians' while WEG’s losses were customarily in the Cases form of a summary judgment or stipulated 60 motion to dismiss with prejudice. WEG’s 50 success is at least partially attributable to the 40 fact that it commonly alleged discrete 30 procedural violations, such as failure to meet a 20 deadline, and recycled claims and pleadings 10 that had been successful in the past.
Number of Cases
Suing and “winning” on such procedural grounds is a no-lose proposition for hyperactive litigants, since federal bureaucracies (many of them struggling to cope with a mounting backlog of litigation and court orders) have a noted tendency to let deadlines slip. Wins on substantive grounds are much harder to achieve, which is why most WEG suits involve challenges on procedure rather than substance. The EAJA is blind on the question of legal fee reimbursements: groups get to claim them irrespective of whether they are suing on frivolous or more serious grounds. It Pays to Play An examination of WEG’s tax filings for the years 2008 through 2010 show $257,397 collected in legal fees. The 2008 filings show zero collected in legal reimbursements, because Forest Guardians outsourced Monetary Awards Made to the WildEarth Guardians its legal work, allowing the litigating entity to $143,918.20 $122,321.60 $122,114.70 collect and keep reimbursements (we $71,900.00 $63,252.47 $59,007.90 thus have no way of $22,420.00 determining fiscal $0 $0 $0 $0 $0 0 impacts from legal fee payouts dating back to
on a al ist ifo ri rn ct ia of Co lo D ra ist do ri ct D of ist D ri .C ct . of H D aw ist ai ri ct i D of ist Id ri ah ct D of o ist M ri on ct ta of na N ew D M ist ex ri ic ct o D of ist N ri ev ct ad of a Ok la D ho ist m ri a ct of D U ist ta ri h ct D ist of ri Te ct xa of s W yo m in g ct o ist D ist ri D D ct o ri fC fA riz
that group’s founding in 1989). In 2009, however, the first full year WEG brought more of its legal work in-house, it collected $94,361. That total jumped to $163,036 in 2010. Although the group’s 2011 tax filings won’t be public for months, last year and this year promise to be equally bountiful for WEG in terms of fee collections. John Horning, executive director of WEG, tells us the group expects to report 2011 legal fee reimbursements of “about” $130,000. But the really big payday may come this year, in 2012, when payout is expected for settlement of a case consolidating 22 separate lawsuits, involving more than 100 species. As the prevailing party in this unprecedented settlement, WEG will likely claim and be awarded its costs of litigation. The amount of this award could be sizable. If the award per case is the same as the average award for other cases in which WEG prevailed, the award would amount to $350,225.45. However, WEG’s Horning told us he expects a significantly smaller payout of “around” $140,000. Discussions are ongoing over the reimbursement amount and the public may not know the actual number until later this year. Biting the Hand that Feeds It But legal fee reimbursement isn’t the only way WEG is reaching into the taxpayer’s pocket. A significant and growing share of the group’s revenue comes in the form of government grants, which frequently come from the same agencies the group is fond of suing, including EPA, the U.S. Forest Service and U.S. Fish and Wildlife. According to IRS reports, WEG in 2008 received $319,796 in such grants; in 2009, $583,497; in 2010, $487,748 – together totaling nearly $1.4 million in a 3-year period. WEG’s John Horning told us in a phone interview that the group probably received “around” $500,000 in 2011, which would bring the 4-year total to nearly $2 million. Forest Guardians, in its last year before the merger, received $111,861 in grants – meaning the group saw more than a five-fold annual increase in such funding since then. Horning stressed during an interview that the government grant money is “earned” for streamside restoration work and other activities in New Mexico. He says safeguards exist to ensure funds are used for designated purposes. He also acknowledges that there’s irony in the fact that WEG is frequently suing the same agencies dispersing the grants. But perhaps this isn’t as odd or ironic as it seems, given the symbiotic relationship that sometimes seems to exist between green-leaning government regulators and private outside green groups. (For more about the cozy relations that seem to exist between federal agencies and the groups that sue them, see John Merline’s report in Investors Business Daily; also recommended is a somewhatdated but still-groundbreaking investigative series by the Sacramento Bee, “Environmentalism, Inc.”.)
On the Dole? WEG’s reliance on taxpayer support isn’t just significant; it’s growing, raising questions about how effective and active the group would be, and why it can’t sustain itself, without a government crutch. Many taxpayers might wonder why a group with which they adamantly disagree, and which they might even see as a threat to their property rights, jobs or Western way of life, is entitled to their support. Many tax-exempt groups in the country operate completely free from government support – indeed, many consider it a point of pride that they rely solely on private funds. But WEG seems to be heading in the opposite direction. Combined government support in 2008, including legal fees and grants, made up 19 percent of the group’s total revenue. By 2009, the combined taxpayer-supplied total (legal fees and grants) made up 35 percent of WEG’s total revenue. In 2010, that total increased to 41 percent (and these percentages would be slightly larger if calculated as a portion of the group’s total non-government contributions, as opposed to total revenue). This signals a growing reliance on government largesse as a means of support. Non-government contributions, in the meantime, seem flat or falling. The group enjoyed a slight increase in non-government contributions between 2008 and 2009, of $108,317, but saw a sharp drop in such revenue in 2010, by $314,537. We’ll have to wait for release of the 2011 filings to see if the downward trend continues: this is too small a sample size to draw long-term conclusions. But as it now stands, given the available data, it seems obvious that WEG is becoming increasingly hooked on taxpayer handouts, even while its private sources of support may be waning. It’s hard to say how much less litigious or how much less active WEG would be if you subtracted 41 percent from its bottom line and forced it to operate on private funds alone. But there undoubtedly are many taxpayers in the West, fed-up with the group’s relentless suing, agitating and monkey-wrenching, who wouldn’t mind seeing that happen. Just a Snapshot Of course, focusing narrowly on legal fee reimbursements tends to distract us from looking at the larger costs and fiscal impacts stemming from saturation litigation, which includes the cost of defending cases, adjudicating cases and complying with whatever court orders or rulings result. Nor does this calculate all the additional bureaucratic and analytic work agencies do in order to try and protect themselves against litigation. It may be impossible to measure these costs comprehensively and holistically, but we have a few clues as to what they might be. The Government Accountability Office (GAO), in a recent examination of green group litigation aimed at the Environmental Protection Agency, calculated that the Justice Department spent
approximately $1.83 defending itself for every $1 collected by prevailing plaintiffs through the EAJA. But Maryland attorney Lowell Baier, who has studied the issue closely, estimates that it costs the government 2 to 3 times what a plaintiff spends to defend such suits. Thus, the $257,397 in legal fee reimbursements reported by WEG over a three year period -- which will grow to roughly $527,000 by later this year if Horning’s estimates of pending payouts are in the ballpark -- represents just a fraction of the total burden these suits impose on taxpayers. Here, too, we only see a bit more of the iceberg, since we can’t ignore the cost to taxpayers of complying with court rulings in cases where the plaintiffs prevail. Wyoming attorney Karen Budd-Falen, who along with Baier has done the public an invaluable service my ferreting-out the facts behind green lawsuit abuse, estimates that the earlier-mentioned consolidated suit, in which 22 separate actions involving 113 species were settled en mass, could end-up burdening taxpayers with more than $206 million in compliance costs – not including legal fee reimbursements. (See Budd-Falen’s congressional testimony of Dec. 6, 2011, before the House Committee on Resources for a detailed explanation of how she calculated that figure). The Green Litigation Industry Even as prolific in the litigation department as it is, WEG is just one group among many that constitute the green lobby, most of which routinely (some, reflexively) go to court when they want to garner headlines or steer policy their way. This has raised a growing chorus of public questions, and some interest in Congress, about what larger fiscal impacts EAJA legal fee reimbursements are having. But as frequently becomes the case when wading into the fiscal and managerial morass that is the federal government, these numbers can be elusive, fragmented and alarmingly hard to find. Research by Budd-Falen, who looked for answers in the PACER legal tracking system, documented $42 million in EAJA payments to green groups over one 8-year period, for an annual average payout of $5.2 million. But she was focusing on just 14 of the most litigious groups (who together accounted for over 1,200 lawsuits during the timeframe she studied) in 20 states -- meaning this, too, is a partial snapshot. Maryland attorney Lowell Baier took a different tack in trying to get a handle on the number, by examining the annual tax filings of the 20 green groups he determined were most litigious. This showed the groups claiming $61.3 million in fees over a 6-year period, 2003 to 2009, for an annual average payout of $9.1 million. These annual payouts began to spike sharply upward after 1995, Baier notes, when annual federal reports on EAJA payments were discontinued by Congress in a “paperwork reduction” measure. “It is regrettably impossible to get a more precise breakdown,” Baier last year told Congress, “but clearly EAJA payments have exploded, at least to this group of litigants.”
A study by academics Michael J. Mortimer and Robert W. Malmsheimer, which attempted not just to quantify legal fee payouts but to explore whether EAJA encourages litigation, documented at least $6.1 million in fee reimbursements made by the U.S. Forest Service between 1999 and 2005, for an estimated annual payout of $876,798. But this is just one federal agency – albeit one that tends to get sued with frequency. (See the Mortimer/Malmsheimer study for a more detailed, in-depth look at their findings.) The GAO’s look at legal costs and fee payouts related to litigation against the EPA found that the Justice Department (DOJ) spent at least $43 million -- or $3.3 million annually – defending EPA in court between fiscal 1998 and 2010. “In addition,” reported GAO, “owing to statutory requirements to pay certain successful plaintiffs for attorney fees and costs, Treasury paid about $14.2 million from fiscal year 2003 through fiscal year 2010 — about $1.8 million per fiscal year—to plaintiffs in environmental cases. EPA paid approximately $1.4 million from fiscal year 2006 through fiscal year 2010— about $280,000 per fiscal year—to plaintiffs for environmental litigation claims under relevant statutes.” GAO noted considerable difficulty in combing-out these numbers, because DOJ “maintains data on environmental cases in two separate data systems and does not have a standard approach for maintaining the data.” As a result, said GAO, “it is difficult to identify and summarize the full set of cases and costs managed by Justice.” Still Searching As much as we would like to provide an accurate total on legal fee collections by WEG and their legal surrogates and partners, and to attach a reliable figure to the total amount of legal fee reimbursements the green lobby receives annually through EAJA, the disturbing truth is that it may be impossible at this point to get that number. Even the crack bean-counters inside the GAO, the non-partisan auditing and investigative arm of Congress, have been struggling to get a handle on the numbers, according to sources on Capitol Hill. In response to a request from Rep. Cynthia Lummis and Sen. John Barrasso, members of the Wyoming congressional delegation who are partnering on a piece of legislation designed to curb EAJA abuses (more on that later), GAO has been trying, so far unsuccessfully, to affix a firm dollar number on legal fee reimbursements paid out through the Departments of Agriculture and Interior. One congressional staff member familiar with the progress of this research told us that, try as it might, GAO has been frustrated in its efforts to penetrate the maze out of which these payments are made. GAO’s report, when published later this year, may indicate that insufficient data exists to put a reliable total on these expenditures. “It’s really a problem,” the congressional source told us, “because the agencies aren’t accountable and even the GAO can’t put its fingers on the data. Some serious sunshine and transparency is needed concerning this entire issue.”
Incentivized to Sue? WEG and other groups riding the EAJA gravy train naturally deny that fee reimbursements create an incentive to sue. All uniformly express shock, shock that anyone would suggest that they’re gaming the judicial system to pad their books. But Mortimer and Malmsheimer, in a previously mentioned study, express skepticism about such claims of innocence. While the two indicated that it’s impossible to conclusively determine motives, and unlikely that these groups would stop suing if they weren’t able to recoup legal costs, they nonetheless found it probable that the “one-way fee shifting” of EAJA “does alter litigation risk among potential plaintiffs” to an extent that could encourage lawsuits. Here the authors explain how EAJA’s one-way fee shifting (meaning plaintiffs can recoup fees but defendants cannot) may alter the calculations and incentives of potential litigants: “Partial fee shifting’s distortion of lawsuit risk presumably encourages both repeat plaintiffs and an increasing number of lawsuits. Our EAJA litigation findings – that frequent U.S. Forest Service litigators are also frequent EAJA claimants – provide evidence of this, although as we have noted several times this relationship is not well defined or understood. The potential to avoid paying their own fees (and never having to pay their opponent’s fees) means that EAJAeligible plaintiffs do not face the same risks as do typical defendants under the American Rule (Rowe 1984). Frequent U.S. Forest Service plaintiffs as rational, self-interested litigators would likely have some sensitivity to the monetary costs of lawsuits (Fein 1984, Greve 1990, Adler 1996, Barnett and Terrell 2001). The financial risk asymmetry created by EAJA would not be lost on such plaintiffs. Other factors must be considered as well: Malmsheimer et al. (2004, p. 24) hypothesized that groups secure other benefits from litigation “…such as publicity and delay of U.S. Forest Service action…” and Juni (2002, p. 93-94) likewise noted that “environmental groups’ donations may suffer if [they use a nonlitigation] …approach [that can be] viewed as less ‘splashy.’” Alternatively, it has been suggested that litigation is actually an effective means to facilitate cooperative bargaining and agreements between plaintiffs and agency defendants (Coglianese 1996). Regardless of the specific set of motivations facing a particular plaintiff – and on which we can only ponder – one-way fee shifting under the EAJA decreases the potential financial risk associated with national forest litigation.” And later: “The EAJA creates a litigation risk asymmetry that may cause stakeholders dissatisfied with U.S. Forest Service land-management decisions to embrace litigation. Enabling this behavior through one-way fee shifting is, of course, a public policy decision, but statutory reform of any perceived inequities or undesirability associated with EAJA and one-way fee shifting
would necessarily require plaintiffs to face some “…real prospect of out-of-pocket loss” (Guthrie 2000, p. 211).” While we tend to agree with the authors that green groups most likely would continue suing even without fee reimbursement, because it’s proven a reasonably effective (from their perspective) means of manipulating public policy and generating headlines, this begs the question of why taxpayers are obligated to subsidize radical special interest groups with which they may strongly disagree. And that’s particularly true when most of these groups clearly have the means to fund their own activities, privately, without the need for a taxpayer crutch. An Invitation to Litigation Finding a fix to the problems of saturation litigation and court-facilitated monkey-wrenching must begin by better understanding their root causes, which are three-fold according to most observers. The primary problem, lest we forget, are the anachronistic landmark environmental laws themselves, which were written decades ago, under vastly different circumstances and expectations, in ways that often served as an invitation to litigation. The Endangered Species Act, for instance, included language that so lowered the threshold for establishing legal standing, for purposes of bringing a “citizen suit,” that it virtually invites “serial litigants,” as Pacific Legal Foundation Staff Attorney Brandon Middleton pointed out in recent congressional testimony. (See Middleton’s complete testimony for a more detailed examination of ESA’s founding flaws). Green groups can’t completely be blamed for taking advantage of this or any other law that makes policy-making through judicial action so inviting, easy and, in some cases, almost lucrative. They’ll continue to abuse vulnerable laws until Congress musters the political will to repeal or rewrite them, in light of this and other flaws. A second major factor is the Equal Access to Justice Act (EAJA), which, while perhaps wellmeaning in concept, has been hijacked by the Monkey Wrench Gang in order to help subsidize judicial forays and fishing expeditions. As Lowell Baier has pointed out, a seemingly-minor, 11th-hour modification of the original legislation – a single sentence inserted by an unknown person, unbeknownst to those in Congress who were voting on the bill – opened the door to EAJA exploitation by making 501c3 groups eligible for fee reimbursements, irrespective of their financial means. That change, which waived eligibility limitations for non-profits that the Act applies to other groups, including small businesses (which it was primarily designed to help), corrupted the intent of the bill Congress approved and opened the door to the kind of gaming we see today.
Compounding the problem is the ill-defined meaning of the term “prevailing party,” for purposes of determining who qualifies for fee reimbursements. EAJA makes “prevailing parties” eligible to collect, but that term is open to interpretation and has become very malleable in the minds of the litigants, government agencies and judges who award and negotiate these payouts. Too much vagueness in the language, and too much discretion on the part of those negotiating the payouts, combined with the fact that these funds come from a seemingly bottomless reservoir of other peoples’ money, all encourage a rather freewheeling, unaccountable approach to dispensing and administering these funds. Worst yet is the fact that the federal government stopped keeping track of these payouts in 1995, as part of a paperwork reduction “reform.” EAJA fee disbursements were tracked, documented and annually reported between 1981 and 1994. A review of those records indicates that the annual reimbursement rate was relatively modest and consistent during those years. In 1995, however, the Paperwork Reduction Act eliminated funding for such reports. As a result, “Congress and the country thereafter have been totally in the dark on how much is actually being spent under EAJA,” as Lowell Baier explained at a July 12, 2011 briefing to the Congressional Sportsman’s Caucus. This lack of accountability created predictable problems. Research by Baier and Budd-Falen confirm that the suspension of reporting led to a sharp (and presumably still rising) upward spike in annual payouts, with the lack of transparency opening the fee reimbursement floodgates. Baier applauds the original intent of EAJA, which was giving disadvantaged entities and small businesses a fighting chance against big government regulators. But, said Baier, “when narrow special interest groups masquerade as representing the public interest, and strategically misuse the court system to get a second bite at the apple because that special interest group didn’t get what it wanted at the regulatory agency level, and then expects to get attorney’s fees reimbursed utilizing EAJA, I submit that is wrong as a matter of public policy.” The total absence of oversight involving EAJA funds is astounding, even by the federal government’s notoriously lax standards. Most of what the public now knows about EAJA abuse comes as a result of citizen watch-dogging, researching and determined truth-telling by Baier and Budd-Falen – and thanks to the relatively small group of Congresspeople who have responded to these revelations. Had it been left to government, or to most members of Congress, or to the groups that have been taking unfair advantage of EAJA, the American taxpayer would still be in the dark about these issues. (Readers interested in reading all BuddFalen’s investigative reports can find them here.)
Possible Fixes Revelations about how green groups are gaming the system to subsidize their legal activities, combined with impatience by some in Congress with the relentlessly-obstructive activities of the green lobby, using the courts as an ally, finally has some in Congress pushing for reform. Although all efforts to rewrite landmark environmental laws such as the ESA, CWA or NEPA have been fruitless, an effort is underway to curb EAJA exploitation, led by Wyoming Rep. Cynthia Lummis and Sen. John Barrasso. H.R. 1996, the Government Litigation Savings Act, aims to preserve EAJA’s original intent, while closing loopholes green groups have exploited. (The House version is co-sponsored by at least three members of Colorado’s delegation, including Republicans Mike Coffman, Doug Lamborn and Scott Tipton). Among other things, H.R. 1996 would 1.) require a return to annual reporting of EAJA payouts, 2.) means-test participants so that no group worth more than $7 million is eligible for reimbursements, 3.) restrict payouts to no more than 3 per calendar year per group, and 4.) require that plaintiffs demonstrate that they have some tangible stake in the issue, and that they would suffer some real consequence or harm depending on the outcome of the case. “Getting paid to repeatedly sue federal agencies over technicalities and recovering their attorneys’ fees in mass quantities is a job these obstructionist groups take seriously; and their actions are gumming up the works at federal agencies like the Bureau of Land Management, the Forest Service, and the U.S. Fish and Wildlife Service,” Lummis said recently, in explaining the bill’s intent. “The Government Litigation Savings Act will halt these groups’ use of EAJA to push their ‘stop everything’ agenda, and return EAJA to its original intent: to give individuals, small businesses or any other entity who has been wronged by the federal government the ability to seek reimbursement.” Though the Senate version of the bill has seen no action, the House version was the subject of an Oct. 11, 2011, House Judiciary Committee hearing and passed at the committee level with minor modifications. A staff member in Sen. Barrasso’s office says the chances of action by the U.S. Senate, while slim with Democrats in control, may brighten considerably if the bill passes the House. That remains a possibility, though stiff resistance is expected from the green lobby, not surprisingly. Conclusion Most reasonable people, on reviewing the facts and history just presented, almost certainly will conclude that WildEarth Guardians has been misusing the judicial system, exploiting poorlywritten laws and taking advantage of taxpayers to pursue a narrow, litigation-driven, special interest agenda. What little hands-on conservation work the group does (also at taxpayer expense) appears to serve as window dressing, meant to put a benign, grassroots face on a
mission that most Americans, if they knew more about it, would find radical and repellent – and certainly not something worthy of their financial backing. Moreover, WEG’s growing reliance on government funding, and its reluctance or inability to support itself through private means, raises questions about who or what the group really represents. Any “public Interest” group worth the name should be able to survive on public (meaning “private”), rather than government, support. The group’s excessive use of litigation and courts as tools of policy-shaping, shunning more democratic means of winning battles, seems like another admission that WildEarth Guardians is far out of the mainstream in its ideas and agenda. What they can’t win in the court of public opinion they instead seek to win in court, with the help of unelected judges. Perhaps that’s because elsewhere across the West, outside the urban areas, affluent resorts and college towns, WEG and other green groups aren’t generally viewed as benign crusaders for good, but as a noxious invasive species bent on destroying the West’s economy, culture and way of life. Much has changed in America since the late 1960s and early 1970s, when the modern environmental movement was still just emerging and the major environmental protection laws were put in place, with bipartisan support. Most significant of those changes, however, may be the transformation of the environmental movement itself, which has today become as big, powerful, well-funded and self-interested as any of the “industries” it traditionally employs as foils (many of which today hardly count as “industries” at all, thanks to relentless vilification and attacks by the green lobby). The agenda of many green groups is no less radical than it was back then: indeed, it might be even more radical, as the focus shifts from saving baby seals to monkey-wrenching the nation’s energy supply and dismantling the free enterprise system. But today’s institutionalized, corporatized, politically-polished and PR-savvy green groups have become part of the “establishment” they once railed against. This gives them a patina of respectability and credibility to Americans who don’t look too far beneath the surface. This new breed of professionalized, pinstripe-wearing environmentalist isn’t monkey-wrenching the system with tree spikes or letter bombs or gasoline cans and matches, but with legal briefs, lobbying tactics and a public relations savvy that would put the most ruthless corporate interests to shame. While that is their right, it’s wrong that the taxpayer is forced to underwrite this agenda, directly and indirectly. Although today’s environmentalists still frequently pose as the adversaries of government agencies, Big Green and Big Government in fact have developed a symbiotic relationship. Not only does the ever-growing regulatory power of government suit their interests, since government is the tool they bend to their will through court rulings and orders, but government also in many cases has become a significant source of funding and underwriting, as this report
demonstrates. “Green welfare” isn’t just the massive stimulus outlays and subsidies from which the “green energy” sector benefits, sometimes in scandalous ways. It’s also government grants and legal fee reimbursements to groups like WEG – something most taxpayers would find no less objectionable. The strategy of saturation litigation embraced by WEG and groups like it has by their measure been a “success.” It “works” in terms of generating headlines, intimidating policy-makers, manipulating regulatory mechanisms and convincing some Americans that these groups are really “fighting the good fight.” But the movement’s continued reliance on extra-democratic means (the courts) to advance its agenda – its determination to win in court what it wouldn’t win at the ballot box -- also seems an admission of failure, highlighting an inability to change hearts and minds. And how does the political and regulatory paralysis that results from all this conflict help achieve conservation goals or improve management of public lands? Not well, as evidenced by the scant success rate in recovering endangered species and the government’s passivity in response to the forest health crisis and wildfire threat. Even some within the movement are beginning to question whether these hyperlitigious, obstruct-everything tactics have reached a point of diminishing returns – whether they are alienating mainstream America and becoming detrimental to the goals greens long espoused. They understand, as George Santayana did, that “fanaticism consists in redoubling your efforts when you have forgotten your aim.” But WildEarth Guardians, by all indications, is having no such second thoughts, which means the group will continue to present a clear and present danger not just to the court system, and to the Western economy and way of life, but to the taxpayers who unwittingly bankroll its monkey-wrenching of the West.
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