Fresh Tracks Weekly - Reform the EAJA for wildlife

[bayoublaster7527]

Maybe judges should do better in limiting this type of litigation. That may be a separate issue from EAJA reform though. Clearly the EAJA writers had the best of intentions when crafting this legislation, protecting the ability of citizens with little means to challenge the government in court. I don’t think they had the multi-million (or even billion?) dollar environmental advocacy behemoths like Sierra Club and Center for Biological Diversity in mind when they crafted this bill. And the unintended consequence of creating a lucrative cottage industry for environmental law groups. That’s not to say that EAJA reform may also cause unintended consequences we are not accounting for. I don’t necessarily see EAJA reform as limiting the ability of citizens to pursue litigation, you can still sue the government. Just don’t expect the agency you sued to cover your legal fees if you are a multi-million dollar advocacy group.

I am going to research further, maybe I am missing something. Based on that I may write my Congressional reps. Thanks for start point MtEngineer.

 

[Ben Lamb]

Maybe judges should do better in limiting this type of litigation. That may be a separate issue from EAJA reform though. Clearly the EAJA writers had the best of intentions when crafting this legislation, protecting the ability of citizens with little means to challenge the government in court. I don’t think they had the multi-million (or even billion?) dollar environmental advocacy behemoths like Sierra Club and Center for Biological Diversity in mind when they crafted this bill. And the unintended consequence of creating a lucrative cottage industry for environmental law groups. That’s not to say that EAJA reform may also cause unintended consequences we are not accounting for. I don’t necessarily see EAJA reform as limiting the ability of citizens to pursue litigation, you can still sue the government. Just don’t expect the agency you sued to cover your legal fees if you are a multi-million dollar advocacy group.

I am going to research further, maybe I am missing something. Based on that I may write my Congressional reps. Thanks for start point MtEngineer.

While groups like the big nationals tend to soak up a lot of the attention on EAJA payments, the bigger issue is the small groups like Native Ecosystems Council, Alliance for the Wild Rockies, etc. These are really small operations that are primarily in existence to sue the gov't and stop any tree project they can under the auspices of saving the grizzly bear, wolf, spotted buttnugget, whatever. 9 times out of 10, their objections have little to do with the actual issue they want to market for donations & press, and the very pedantic process of writing an EA, EIS or any other NEPA document.

Those small serial litigators deliberately play the game of no financial assets so that they don't fall under the watchful eye of the politicos who would rather grandstand on issues than get anything done. The Sierra Club doesn't need EAJA funding to complete it's mission. As @Elky Welky pointed out, litigation is expensive, and the EAJA is absolutely correct in allowing people of honest intent to recover their legal costs to fight their own government.

What we have here is a loophole created by multiple laws, across the NEPA, EAJA, ESA spectrum. Changing NEPA might be the better approach than to try and limit freedom to seek redress against our government. Means testing is likely unconstitutional (as that was part of the issue with the bill Jake mentioned earlier), so I think that a tactical approach with a scalpel to change those organic acts for citizen involvement is the best path forward. Fully recognize that I'm no expert here, and others are much better informed than I.

 

[Ag_2006]

This is a topic that I've almost had to compartmentalize, given how much it raises my blood pressure. Marcus knows it gets me worked up and he convinced me to sit down and give some thoughts on how the Equal Access to Justice Act is being abused by environmental litigators (drive by litigators as I learned to call them from @Ben Lamb).

The deeper dive segment of this FTW video goes into the EAJA, what it was intended to do, how it is abused, how the Feds get the blame for everything, and how the law is a cash cow for the litigators.

Should a group like the Sierra Club with $167million of revenue and $144 million of net assets be allowed to make a profit by suing the Federal Government under an obscure law that was intended for Grandma to be able to sue for her social security benefits?

Of the $36 million of revenue the Center For Biological Diversity had on their most recent IRS Form 990, should $9.8million come from legal settlements and reimbursements? These are coming in large part from the EAJA. Shouldn't they be able to pay their legal expenses out of their $32 million of net assets?

You and I cannot seek reimbursement if we have net assets over $2 million. The law doesn't need to go away, it needs reformed to change how non-profits are using this law to kill most of the management actions on Federal lands. The reform needs to be in changing how 501(c)(3) groups use it for reimbursement and profit models.

Enjoy. Go to the video link and contact your Senator or Congress Member to remove the exemption for non-profits to use the Equal Access to Justice Act.

Thx!

 

[Nameless Range]

This came through my email today. Thought it was interesting:

Executive Summary​

Ongoing permitting reform debates in Washington, DC, have mostly orbited around the National Environmental Policy Act (NEPA). A procedural environmental regulatory “umbrella law,” NEPA creates significant and complex requirements for all major infrastructure projects and federal activities affecting the environment.

Broadly, NEPA requires that federal agencies conduct environmental reviews of proposed activities and their potential effects. For complex projects, agencies can either prepare an environmental impact statement (EIS) or an environmental assessment (EA). Alternatively, simpler projects can be afforded a categorical exclusion (CE) which fast-tracks the review process. After permits are granted through these review mechanisms, they may be challenged in the judicial system. The courts then have the authority to reaffirm, bolster, or otherwise improve the project plan to prevent or limit environmental damage. Of course, lawsuits to challenge EISs, EAs, and CEs necessarily extend project timelines. Particularly in the wake of the Infrastructure Investment and Jobs Act (2021), the Inflation Reduction Act (2022), and the CHIPS and Science Act (2022), federal policymakers and policy advocates have drawn increased attention to the regulatory burden and delay imposed by this judicial review.

However, the NEPA litigation debate has suffered from a deficit of empirical evidence. Our analysis helps fill this knowledge gap, documenting and sorting hundreds of NEPA litigation cases to assess trends, patterns, and impacts on various types of major infrastructure projects.

Breakthrough Institute analysts, in collaboration with legal experts at Holland & Knight, compiled and analyzed 387 NEPA cases brought to the U.S. appellate court system over the 2013-2022 period and categorized them by project type, environmental review, length of judicial review, federal agency, and plaintiff. Our results indicate that NEPA litigation overwhelmingly functions as a form of delay, as most cases take years before courts ultimately rule in favor of the defending federal agency.

As Congress deliberates reforms to NEPA, it is essential that policymakers recognize the degree to which the legal status quo prioritizes procedure over outcomes. To enable more effective environmental review, reforms should minimize the potential for extended, unproductive legal battles while still promoting the fair assessment of environmental impacts.

Key findings:​

• Between 2013 and 2022, circuit courts heard approximately 39 NEPA appeals cases per year, a 56% increase over the rate from 2001 to 2015.
• Agencies won about 80% of the 2013-2022 appeals cases, 11% more per year than from 2001 to 2004, 8% more than from 2001 to 2008, and 4% less than from 2009 to 2015. The rate at which agencies’ reviews are upheld is high, meaning these environmental reviews are seldom changed as a result of litigation.
• On average, 4.2 years elapsed between publication of an environmental impact statement or environmental assessment and conclusion of the corresponding legal challenge at the appellate level. Of these appealed cases, 84% were closed less than six years after the contested permit was published, and 39% were closed in less than three.
• Among the challenges, 42% contested environmental impact statements, and 36% contested environmental assessments. Agencies won about 80% of challenges to both.
• NGOs instigated 72% of the total challenges. Of those, just 10 organizations initiated 35% and had a success rate of just 26%, merely 6% higher than the average for all types of plaintiffs.
• Only 2.8% of NEPA litigations pertained to agency assessment of environmental justice issues.
• Public lands management projects were the most common subject of litigation (37%), the greatest share of which (47%) challenged forest management projects. Just 10 groups filed 67% of the challenges to forest management projects and collectively won only 23% of those cases, adding 3.7 years on average to the process of implementing the 77% of projects on cases they lost.
• Energy projects were the second most common subject of litigation (29%). Litigation delayed fossil fuel and clean energy project implementation by 3.9 years on average, despite the fact that agencies won 71% of those challenges. NGOs filed 74% of energy cases, with just 10 organizations responsible for 48% of challenges.
  
  
  
  https://thebreakthrough.org/issues/...udicial review, federal agency, and plaintiff.

 

[Chama Grande]

This came through my email today. Thought it was interesting: [...]

That's an interesting report, thanks for passing it along

"Even the most well-resourced NGOs rarely won cases when challenging NEPA decisions. Just 10 NGOs initiated 35% of the total challenges (Table 4) and they had a success rate of just 26%, merely 6% higher than the average success rate for all types of plaintiffs." [...] The Sierra Club advertises itself as having “perfected the art of campaign litigation and ‘lawyer-organizing.’” The Center for Biological Diversity claims that it melds “cutting-edge legal strategies with grassroots organizing.” The Natural Resources Defense Council helped start the environmental legal movement and maintains significant litigation activities today.

"These and other groups make clear that their NEPA litigation is not solely utilized to improve environmental outcomes associated with infrastructure projects, but to obstruct and delay projects themselves, often for the purpose of preventing the project from ever moving forward at all."