Posted on 10/16/2014 6:48:52 AM PDT by Cincinatus' Wife
In 1980, Congress passed the Equal Access to Justice Act (EAJA) to protect the "little man" from government agencies that break their own rules. Under EAJA, if the courts find that the government violated its own policies, the government pays the litigation costs to the winners.
A loophole in the law has enabled "Big Green" environmental groups to broker a self-serving bargain with the government. Wealthy nonprofits receive millions in EAJA reimbursements, no matter how much money those organizations are worth, completely defeating the original intention of the law.
This law promotes widespread injustice and is harming the very people it was intended to help.
After Congress passed the Sunset Act in 1995, reporting provisions for EAJA payouts disappeared. Currently, EAJA lacks any sort of recordkeeping, which means no government agency knows which organizations are receiving payouts or how much they are receiving. With no records, nonprofit groups are taking advantage of the fact that no one would know how much money the groups are making by suing federal agencies.
Politicians from both parties are trying to combat EAJA's shortcomings. Rep. Cynthia Lummis (R-Wyo.) is spearheading legislation to address the lack of recordkeeping and place limits on reimbursements.
In 2013, Lummis stated, "[EAJA] was a good idea when it passed Congress. It remains a good idea today so long as it is operating as Congress intended."
But with no records on where the money is going, Lummis continued, "litigious environmental groups use EAJA to fund repeated procedural lawsuits. Whether those lawsuits result in a $1 or $1 million reimbursement, it is contrary to Congressional intent. EAJA was written for the little guy to fight a once-in-a-lifetime substantive lawsuit."
The multimillion-dollar Sierra Club Foundation is one of many organizations using the EAJA loophole. In the 55 trials linked between the Sierra Club and the Environmental Protection Agency (EPA), $2.4 million was given to cover lawyer fees and court costs. From 2000 to 2009, the Sierra Club requested fees in 194 cases and was awarded more than $19 million. No one knows the exact amount because in two of the cases, the reimbursement amount remains totally unreported.
EAJA is also hurting average Americans. Tim Lequerica is a full-time rancher living on his 320-acre ranch in Malheur County, Ore. His company holds a permit to graze 444 cattle on Bureau of Land Management (BLM) land and uses water from the protected Owyhee River. In 1998, two environmental groups found a BLM paperwork error and sued the BLM to review the grazing practices on Lequerica's allotment. They also sued the BLM for "fail[ing] to protect streams, fish, sage grouse, and other Owyhee resources" by allowing ranchers to use the river to water their cattle. The groups ultimately won their case, and Lequerica had to stop watering his cattle at the Owyhee, where his family had grazed and watered their cattle for nearly a century.
In the end, Lequerica paid over $42,000 of his own money in legal fees fighting to protect his business. Those environmental groups, however, had their legal fees, totaling $128,000, voluntarily paid for by the government under EAJA.
Lequerica said, "My tax money paid for every part of the litigation. I paid my personal attorneys to represent me. My tax dollars paid the federal government who failed to do all the paperwork correctly; and my tax dollars paid [the environmental groups] to sue the federal government." EAJA has become antithetical to its own name. It does not promote equal access to justice; rather, it promotes self-serving organizations' access to easy government money.
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Simmons, Ph.D., is director of the Institute for Political Economy and professor of political economy at Utah State University. He also serves as president of Strata Policy, a public policy think tank headquartered in Logan, Utah. Lofthouse is a policy analyst at Strata Policy.
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