Restoring balance to environmental litigation is vital to America’s farmers and ranchers, who embrace an ethic of resource conservation while producing food and fiber. But they are frustrated by inequity and lack of transparency in environmental activist groups’ misuse of litigation fee-shifting laws, according to the American Farm Bureau Federation (AFBF).
Testifying before a congressional subcommittee, AFBF Director of Congressional Relations Ryan Yates said the need for oversight and reform regarding environmental litigation cannot be overstated.
Yates told the House Committee on Oversight and Government Reform’s Subcommittee on the Interior, Energy and Environment that a review of how environmental organizations take advantage of the legal system is ripe for timely review.
He noted the misuse of federal fee-shifting statutes by environmental groups has had harmful consequences that Congress never intended.
The Equal Access to Justice Act and other fee-shifting statutes, Yates said, were intended to rebalance the scales and restore equity to the “David-vs-Goliath” task individuals and small businesses and organizations face when suing the federal government. But this principle has been abused in a way that greatly surpasses the measure’s intent of protecting individual rights when holding government accountable, he told the subcommittee.
“Congress wanted to make it possible to challenge an unjust cost or penalty, or an unjust denial of hard-earned benefits, without paying more in attorneys’ fees than what an individual would stand to lose or gain in litigation [against the government]. But almost 40 years on, the result is anything but equitable,” Yates said.
He detailed examples where attorney fee awards in environmental litigation have “gone off the rails” regarding transparency, fairness and cost.
Yates also said citizen-suit provisions in many environmental laws allow for fee shifting, and those fees come out of an unlimited judgment fund pool, instead of agency budgets. In the 2016 fiscal year, that fund paid out more than $3.8 million in attorney fees for environmental litigation alone.
He encouraged members of Congress to restore requirements to track and report attorney fees paid in litigation and make that reporting more transparent by posting it online.
“To fully understand what is necessary to reform fee-shifting statutes, taxpayers need to know where their money is going,” Yates said.
Additional safeguards should also ensure more fairness. Yates said courts have interpreted current law “in a way that overwhelmingly favors environmental groups in terms of their ability to recover attorneys’ fees—and recover handsomely, even without prevailing on the merits of their claims.”
A last-minute “technical change” to the law, for example, allows certain non-profits, including most environmental organizations, to recover their legal fees regardless of the wealth held by those organizations. According to Yates, this exception “means that environmental groups funded by millionaires can get taxpayer dollars to sue the government, whereas those millionaires would have to pay if suing on their own.”
Such groups often recover fees even if they fail to prove the government was in the wrong. According to Yates, a “prevailing party” recovering fees from the government has come to mean “essentially anyone who gets the government to do something it wants, whether or not a judge has actually determined that the agency made an error.” This was not the purpose of the law, which was to compensate litigants who hold the government accountable for misdeeds.