“Justice” has long been a core value and the legal backbone of American society. Its tenets are woven into the U.S. Constitution and the Bill of Rights. These documents protect our natural rights of liberty and property, guarantees a number of personal freedoms, and limits the government’s power in judicial and other proceedings. However, to sue the federal government, in an effort to protect these rights, one has to have pretty deep pockets. We would all agree that the lack of financial means should not bar access to protect our rights in court.
To that end, Congress passed the paradoxically named, Equal Access to Justice Act (EAJA) in 1980, ensuring that citizens had just that, equal access to justice; that the vast financial resources of the federal government would not prevent individuals from having their day in court. The Act served the purpose as intended until Congress amended the Act in 1985, giving tax-exempt corporations the same equal access to the federal court system as the individual or the small business owner.
The EAJA only applies to a subset of all plaintiffs, namely, tax-exempt organizations, small business owners and individuals whose net worth falls below certain categorical thresholds. Access to the federal courts has turned out to be a windfall and the new business model for environmental organizations. The Government Accountability Office (GAO) tracked 525 legal fee reimbursements from 2001 through 2010 and discovered a $44.4 million price tag. However, only 10 of 75 agencies within the U.S. Departments of Agriculture and Interior could even provide data on cases and attorney fee reimbursements. The amount actually paid by the taxpayer is undoubtedly much higher.
Although the EAJA was designed to protect the ability of ordinary citizens to seek redress for government misconduct, allowing tax-exempt corporations to sue the federal government has wrecked havoc. This one-way, fee-shifting, arrangement is one of very few exceptions to the American rule of law. Usually each party in a lawsuit bears its own legal expenses. As former chief of the U.S. Forest Service Jack Ward Thomas stated once, “paying litigants to sue certainly encourages legal action.” Basically, the Forest Service will pay you to sue them.
From 1999 through 2005, the Forest Service paid over $6.8 million dollars in attorney fees to environmental organizations. Region 1’s portion – which includes Montana – exceeded $1.6 million.
Settlement funds are a direct reimbursement out of the timber program budget. Because of the increase in lawsuits since 1985, approximately 60 percent of Region 1’s timber budget is spent on planning and trying to bulletproof analysis under the National Environmental Policy Act. Meaning, 40 percent of the timber budget is actually available to get work done on the ground. No wonder we in the timber industry are fed up!
Giving tax-exempt corporations access to the U.S. Treasury has resulted in excessive abuse of the system and a shift of power. Congress must act. Aggressive reforms must be implemented, such as:
1) Uphold the intent to maintain or restore the long-term ecological health of the land, air or water.
2) Statutorily limit the hourly legal fee to $125.
3) End the one-way, fee shifting arrangement and implement a “loser pay” system.
4) Limit the total amount that an agency can pay in a fiscal year; and most importantly,
5) Require plaintiffs to post a bond.
As Americans, we do value justice and the ability to take our grievances to court, but abuse is not just either. Interestingly, in an effort to counteract criticism, the executive director of the Center for Biological Diversity stated that environmental groups collect only a small portion of overall fees under the EAJA.
$44.4 million dollars is not a small portion.
A recent Notre Dame Journal of Legislation article stated the EAJA had a noble purpose once, but has produced – in addition to all but shuttering the timber industry in the West – an “incalculable waste of taxpayer money.” Where is the justice in that?
Julia Altemus is the executive vice president of the Montana Wood Products Association.