EAJA ‘blackmails’ tax dollars, rewards environmetal lawsuitWritten by Christy Martinez
Wheatland – Cheyenne attorney Karen Budd-Falen and the Western Legacy Alliance (WLA) keep digging, and the more they dig the more dollars are added to the figure awarded to U.S. environmental groups under the Equal Access to Justice Act (EAJA).
“In this issue we’re working with, certain environmental groups are being paid by the federal government to sue the federal government to eliminate you,” Budd-Falen told a group of farmers and ranchers gathered in Wheatland Jan. 22.
EAJA was passed with the premise that if an individual sues the federal government, and wins, and the federal government is determined to have taken an “unjustified position,” then the federal government should pay the attorney’s fees.
“The federal government used to account for the attorney’s fees, and one could see how much money went to who,” noted Budd-Falen, adding, “In 1995 Clinton signed the Paperwork Reduction Act, which said the accounting wasn’t needed, but they kept paying the money.”
There are two basic statutes that fund the lawsuits. The passage of EAJA created a “Judgment Fund,” and between 2003 and 2007 the federal government spent $4.7 billion from that account, which is supplied by taxpayers. The Judgment Fund is an “offline Congressional fund,” which means Congress reauthorizes the fund with no dollar figure attached.
The second funding source EAJA takes money from is the losing agency’s budget.
“It’s a self-perpetuating cycle, and it’s no wonder the agencies can’t get anything done. Their budget is being spent on attorney’s fees,” said Budd-Falen.
“We wrote the Justice Department and asked what the money was spent on,” said Budd-Falen. “They wrote back and said they had no idea. They couldn’t tell us how many suits, by whom they were filed, or the hourly rate paid for attorney’s fees.”
“We figured out through EAJA and the Judgment Fund environmental groups are collecting law fees at $650 per hour for their attorneys to litigate against the federal government,” she added.
Although EAJA caps hourly attorney fees at $125 per hour, the environmental groups have convinced the courts that environmental law is a specialty and they should get paid additional funds, says Budd-Falen.
Additionally, EAJA sets forth a $7 million net worth cap, which means that an individual or business worth more than $7 million doesn’t qualify for attorney’s fees.
“But if you’re a ‘non-profit’ like the Sierra Club, there’s no qualifying cap,” explained Budd-Falen. “At last count, Sierra Club’s net worth was $100 million, but they can get attorney’s fees because they’re ‘non-profit public interest.’”
Budd-Falen added the president of the Environmental Defense Fund makes $500,000 per year, while the Natural Resources Defense Council president takes home $432,000.
“The real killer is these groups aren’t suing over whether a species should be listed, but rather over procedure,” said Budd-Falen of the cases that take issue with the federal government’s failure to deliver 90-day findings on the multiple petitions to list. “The U.S. Fish and Wildlife Service gets hundreds of petitions, and can’t get them done in 90 days. They wait until day 91, sue in federal court and get their money back.”
According to Budd-Falen, the grand total of tax dollars awarded under EAJA, including attorney’s fees and court-ordered “donations” to environmental groups by both private industry and the federal government, comes to $41,870,398. And that doesn’t include an estimate of the one-third of cases in which the settlement is undisclosed.
“That’s your tax dollars,” she noted. “And an amazing waste of money to a bunch of groups that don’t care about the environment and won’t say they’re capitalists.”
The $41.8 million payment includes 20 states and 14 environmental groups, including the Wyoming Outdoor Council. Of the 1,269 total cases filed, there were 579 in which attorney’s fees were paid and 55 of those indicate attorney’s fees were paid, with no figure on how much.
Of the $41.8 million, the federal government paid up $37,154,410, while private companies contributed $4,156,488 – $555,000 of that ordered for straight donations to environmental groups.
“Until we started attaching actual dollars to EAJA, nobody paid much attention,” said Budd-Falen. “When we attached dollars, we got traction.”
Wyoming has had 14 cases filed by the Wyoming Outdoor Council in the last nine years, and $187,000 has been paid for attorney’s fees in the state. In that same time period two environmental groups in Washington State have received $2,730,000, while groups in Oregon have been paid $4,278,000, plus requirements that the federal government make $523,500 in donations.
“That’s blackmail,” said Budd-Falen. “And the federal government’s agreeing to it. Your tax dollars are being blackmailed.”
She said Wyoming Representative Cynthia Lummis is expected to bring a bill, along with two Democratic and one Republican House member, to Congress by mid-February to address EAJA.
“Their bill will deal with the accountability part of the problem,” said Budd-Falen. “It would force the federal government to track and publish the numbers. It will shed public light on how much money we’re talking about.”
The WLA is also continuing work on the Eco Cowboy Program, which is a reality series that began filming in Arizona and will cover the EAJA issue and ranchers in the West. It’s expected to air in Fall 2010.
Another project focuses on correcting misinformation spread from environmental groups following court decisions.
“If you read the press releases from the environmental groups about what the court does, and the actual court decision, you’d think you’re reading two different things,” said Budd-Falen. “They don’t just shorten the decision for the press release.”
To set things right, WLA has a public relations person on staff who reads the court decisions and the environmental groups’ press releases, then issues information to clarify what really happened.
“They’re trying to get some of that accurate information out, because the general public reads the press releases and doesn’t know the difference,” said Budd-Falen.