Oct 19, 2021

Equal Access to Injustice

By Mark Holyoak

This article first appeared in the September/October 2021 of the Rocky Mountain Elk Foundations Bugle Magazine. Although primarily focused on the work of the RMEF, the topic is so significant that we are re-publishing a segment of the essay here. You can find Part 2 in the October 6 edition of Outdoor Wire and Part 3 in the October 7 edition. I hope you take the opportunity to read the entire article as it is worth your time. Our thanks to the RMEF for allowing us to share this story. – Michelle Scheuermann, editor, Archery Wire.

Congress created the Equal Access to Justice Act to give everyday Americans a fair shot. But it’s been hijacked into a lawsuit factory where environmental groups fuel their agendas with taxpayer money.

When the federal government listed grizzly bears as threatened in the Lower 48 under the newly minted Endangered Species Act (ESA) in 1975, an estimated 136 grizzlies remained in the nearly 6 million acre Greater Yellowstone Ecosystem (GYE). Since female grizzlies don’t reproduce until they’re at least four years old and only have litters of two to three cubs every three years or so, extinction loomed as a real possibility. Over time, though, those protections worked.

By 2007, U.S. Fish and Wildlife Service (USFWS) scientists estimated the GYE population had quadrupled to more than 500 bears and expanded its range by more than 50 percent. This exceeded all of the federal recovery criteria and the USFWS removed the Yellowstone grizzly population from threatened status. In short, the ESA functioned exactly as it was designed.

Of course, the story didn’t end there. Environmentalists immediately sued, citing uncertainty regarding food sources. A judge agreed and returned them to fully protected status.

Subsequent research showed that the bears adapted well, overcame the perceived food challenges and continued to grow in numbers and range. In 2017, citing an estimated population of 750 bears and further expansion of occupied range—again exceeding all delisting criteria— the Department of Interior removed grizzlies’ threatened species status once more, returning management of the great bears to the three state wildlife agencies in the Greater Yellowstone.

Once again, a slew of environmental groups took their arguments to court. In 2018, a federal judge cited technicalities and ordered the population be relisted again. The federal government and states of Idaho, Montana and Wyoming intervened on behalf of delisting, and the Rocky Mountain Elk Foundation and the Sportsmen’s Alliance Foundation filed a brief in support of delisting to the Ninth Circuit of Appeals. However, the court upheld the relisting decision in July 2020. In April 2021, biologists from both the USFWS and Interagency Grizzly Bear Committee revised the estimated grizzly population in the GYE to upwards of 1,000 bears. That’s almost a tenfold increase from where the population stood when they were listed as threatened 46 years ago.

The delist-relist ping-pong is frustrating enough. But here’s one more especially galling detail: you’re paying for it.

Citing the Equal Access to Justice Act (EAJA) in that most recent round of litigation, environmental groups filed requests to be reimbursed for “reasonable” attorney fees up to $460 an hour. A few of those groups include the Alliance for Wild Rockies, Center for Biological Diversity, Humane Society of the United States, Sierra Club and WildEarth Guardians. The total combined ask amounted to more than $1.4 million in taxpayer money.

“The really unfortunate thing is when these groups win, the Department of Justice negotiates the fees, but it’s the individual agency that must pay. So, in this case, it would impact the budgets of the U.S. Fish and Wildlife Service, but in other cases it could be the Forest Service, Bureau of Land Management or another federal agency,” said Blake Henning, RMEF chief conservation officer. “All of those agencies are already underfunded, and this just hurts them more, which means they don’t have staff to adequately review issues, which leads to more and more lawsuits. It’s become what amounts to a ridiculous, non-stop merry-go-round ride.”

Looting Agency Funding

Imagine discovering someone is picking your pocket without you even knowing about it. That scenario has played out time and time again in federal courts across the United States. It’s a ploy successfully utilized by environmental groups that take advantage of the Equal Access to Justice Act. A measure created four decades ago to serve and benefit everyday Americans has been transformed into something far different.

To gain a better understanding of the EAJA, we must examine its roots. In the 1950s, Americans demanded governmental action for better stewardship of our nation’s air, land and water. One of the first key pieces of legislation to result was the Air Pollution Control Act (1955) followed by the Clean Air Act (1963). The Water Quality Act came two years later, holding states responsible to meet standards for water in their rivers, lakes and streams, including those waterways that flowed beyond their borders. The Motor Vehicle Air Pollution Control Act (1965) amended the Clean Air Act and set standards for vehicle emissions. In 1966, the Endangered Species Preservation Act created regulations to protect fish and wildlife species in danger of extinction.

The 1970s saw the creation of the National Environmental Policy Act (1970), a requirement that federal agencies prepare an environmental impact statement for any action or legislation that could adversely affect land, water or wildlife. Later that same year, an executive order from President Richard Nixon created the Environmental Protection Agency (EPA), an independent executive federal agency with a mission to protect human health and the environment. Building on previous legislation, the Clean Water Act (1972) sought to further reduce and eliminate pollution in our nation’s waters, while the Endangered Species Act (1973) focused on protecting crucial ecosystems for imperiled wildlife, fish and plant species.

Those actions helped set the table for Congress to enact the Equal Access to Justice Act in 1980. It authorized the payment of “reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test or project which is found by the agency to be necessary for the preparation of the party’s case, and reasonable attorney or agent fees” to a party that wins a civil lawsuit against a federal agency by successfully demonstrating a threat of injury or irreparable harm.

“EAJA was passed primarily in response to demands from the small business community, which was laboring under the increased environmental, consumer and health and safety regulations of the 1960s and 1970s,” said Lowell E. Baier, an attorney in Washington, D.C., and the author of the 2015 book Inside the Equal Access to Justice Act: Environmental Litigation and the Crippling Battle Over America's Lands, Endangered Species and Critical Habitats. “The concern was that when an agency such as OSHA [Occupational Safety and Health Administration] or the EPA improperly fined a small business, the small business might win in court but be bankrupted by having to pay its lawyers.”

Baier points out that EAJA also applies to veterans seeking benefits from the Department of Veterans Affairs (VA) as well as the Social Security Administration (SSA). In fact, the vast majority of people garnering funds from the EAJA have been veteran or senior citizen beneficiaries suing the SSA or VA. Their awards average just a few thousand dollars each. But those payouts make a real difference for people who have no other remedy to receive the benefits they deserve. As a result, EAJA remains a critically important law for the everyday American.

According to Baier, the intent behind the law has not changed much over the 41 years since its passage, but the nature of its use certainly has. The EAJA included a cap on the net worth of any person or company that may benefit from it to make sure it serves real needs. However, in the final stages of establishing the EAJA, a last-minute amendment opened the door for nonprofit organizations to use it regardless of their net worth. This distinction grew murkier after 1995, when Congress eliminated a provision requiring annual reports of expenditures under EAJA. This opened the door for environmental groups to receive EAJA awards without the public ever realizing it.

“That set up a situation where environmental groups worth hundreds of millions of dollars could have their legal fees covered in cases where they used procedural laws like the National Environmental Policy Act to delay government projects they opposed for philosophical or political reasons. And in most cases, the money would be paid to the environmental group in a lump sum as part of a settlement agreement, with little if any oversight by the court, and then just disappear,” said Baier. “In theory, the law has a cap on fees, but that can be waived for lawyers with special expertise, such as in environmental law, when they’re paid market rates. We’ve documented numerous cases where payments were in the hundreds of thousands of dollars, and even over a million dollars in some cases.”

Beginning in 2012, a bipartisan Congressional effort required the Department of Interior to disclose EAJA payments, and the John D. Dingell, Jr. Conservation, Management, and Recreation Act of 2019 permanently restored EAJA reporting throughout the entire federal government. Baier says this greatly reduced litigation from many organizations because they did not believe the negative publicity was worth the money. He also quoted Justice Louis Brandies who said, “Sunlight is the best of disinfectants.” Still, such litigation does persist—with some groups continuing to thrive on it.