November 5, 2009
By Oregon Tax News,
The federal government spends about the same amount of money funding environmental lawyers as it does to protect endangered species according to an investigation conducted by a Wyoming lawyer who defends farmers and ranchers involved in environmental lawsuits.
According to the Capital Press, Karen Budd-Falen was curious how much money the federal government paid the lawyers who initiated cases against her clients and uncovered more than $4.7 billion in taxpayer money that the government paid to environmental law firms between 2003 and 2007. That represents an average of $940 million a year, compared to $922 million spent directly on the 986 endangered and threatened species, according to the U.S. Fish and Wildlife Service’s annual report.
According to her research, Budd-Falen found that three environmental groups—Western Watersheds Council, Forest Guardians and the Center for Biological Diversity—filed more than 700 lawsuits against the U.S. government between 2000 and 2009.
“That money is not going into programs to protect people, wildlife, plants and animals,” Budd-Falen told the Capital Press, “but to fund more lawsuits.”
According to Budd-Falen, environmental groups are eligible for government funds under the Equal Access to Justice Act, which provides for the award of attorney fees to “prevailing parties” in cases against the government. The firms also are accessing government funds through the Judgment Fund, which is a line-item appropriation in the federal budget used for paying claims against the government.
“We tried to track the fees paid to environmental groups in certain federal courts. These guys are charging between $350 and $450 an hour in legal fees.” Budd-Falen told Now Public.
“If you just look at the raw number and say ‘why in the world is the United States paying a million dollars bankrolling them to sue us,’ well that’s what congress set up through EAJA. That’s the law, we’re bound by it,” Assistant U.S. Attorney Mark Haws of Boise told Now Public.
Budd-Falen found in one 15-month-long case that Earthjustice Legal Foundation and the Western Environmental Law Center filed for $479,242 in attorneys’ fees.
Brian Smith, a spokesman for Earthjustice, told the Capital Press that the foundation counts on those fees because it represents groups free of charge and that if the government had been doing its job under the Bush administration, the foundation wouldn’t be so active. He believes the current Obama administration will reduce the need for environmental lawsuits.
However, Budd-Falen doubts the steady stream of lawsuits will stop, or even slow. “Why would you stop filing litigation when you can get that kind of money? They are not filing these suits to try and protect the environment. They are filing these suits to make money.”
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They sue because members like me want them to challenge abuse of the federal lands when the agencies go off the rails. I worked for BLM myself and saw how necessary these suits are. Without them, BLM would still be a captive of the logging, mining, and grazing industries. The industries also sue BLM or the Forest Service when they don’t like a decision.
Regarding her figure of 4.7 billion, Ms. Budd-Falen dramatically misleads the public. That figure is the total amount paid from the “Judgment Fund” from 2003 to the first half of 2007. As a practicing attorney she knows, or should know, that the Judgment Fund pays judgments and awards ? not just attorney fee awards ? under 96 statutes, including the Federal Tort Claims Act; Foreign Claims Act; Fair Labor Standards Act; and the Religious Freedom Restoration Act. The Judgment Fund also pays judgments and awards for cases involving patent, copyright and trademark infringement; military separation and disability retirement pay; civil and criminal forfeiture; and fair housing. In fact, from a total of 96 statutes, the Judgment Fund only authorizes payment under seven different environmental statutes. Indeed, the United States Treasury Department states that the Judgment Fund is available for “most judgments” ? not just attorney fee awards - against the federal government(www.fms.treas.gov/judgefund/background.html)].
Therefore, to claim that environmental organizations have received “billions” in attorney fees is not only inaccurate, it is misleading regarding a matter of public concern.
Budd-Falen also misleads readers regarding the EAJA. She fails to state that under the EAJA, a prevailing party may recover fees only if the agency’s position was NOT “substantially justified.” Therefore, an environmental group may recover attorney fees only when the defending agency clearly violated the same laws it was charged with enforcing. In fact, that’s why EAJA was created, so that citizens may act as private attorney generals to enforce the laws that federal agencies fail to enforce, an unfortunately all-too-common practice under the former Bush administration.
Again, by conveniently failing to note the high threshold that all prevailing parties must meet to recover attorney fees, Budd-Falen paints a falsely negative picture of an important and very democratic statute. In fact her position, like the unreasonable position of agencies forced to pay attorney fees under the EAJA, is clearly not “substantially justified.”
Brent Hendricks
General Counsel
Center for Biological Diversity
It is sad to see the misuse of funds. The CBD and others throw lawsuit after lawsuit with nothing to lose.98% of the public that use the land are responsible people who are for responsible use.
This is another instance of greedy lawyers ripping off billions of tax dollars. What makes this even more shameful is the fact that these people have championed themselves as ‘do-gooders’. Bottomline our tax dollars are not protecting the environment, but lining the pockets of these carpetbaggers. Its shameful and sick…I wonder how much Mr. Hendricks makes as General Counsel for the Center of Bio Diversity. It saddens me to think us taxpayers are paying his six-figure salary. We need to ask Congress to shut down this shameless, lawyer gravy train.
Let me first say that I am an avid dirt biker. So I am all too familiar with frivolous environmental lawsuits. That being said, I am not against the government being held accountable. What I am against is how groups such as CBD and the Sierra Club exploit the system for their own personal gains. It makes me sad more than anything. You see, my 8yr. old daughter loves dirt bikes too. She has competed in motocross races and hillclimbs, but what she really loves is the time we spend together just riding trails and camping in the woods. Now, due to this rampant greed, we are losing our spots to legally ride left and right. Being a Marine, it makes it even harder to explain to her why as Americans we can no longer ride on public lands. Like I said, it’s really a sad state of affairs. On the positive side, at least she is learning the importance of voting. ;o)
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The taxpayers would certainly benefit if the government would follow the law and protect imperiled species and their habitat. They would both save money and have a healthier environment. I am glad that advocates of law and order out there holding the government accountable.