April 3, 2011
Fighting off the muggers
Don't let Big Green use government to mug taxpayers
So you are walking along one bright, sunny day minding your own business and loving life when suddenly two strangers jump in front of you, one a bearded dude in a worn L.L. Bean canvas shirt, khaki cargo shorts and sandals, the other in a dark pin-striped suit waving a file labeled "Equal Access to Justice Act."
When they demand that you "hand it over," your first instinct is probably to grip your wallet while assuming a defensive stance. You are indeed about to be mugged, but don't bother fighting these characters. Resistance is useless because such muggers have the law on their side. EAJA payouts for lawyer fees and other settlement costs in environmental suits against the government are going to leave you much poorer.
But the day could be coming when you won't be entirely without recourse, thanks to Sen. David Vitter, R-La., and Rep. Rob Bishop, R-Utah. They have introduced the Domestic Jobs, Domestic Energy, and Deficit Reduction Act of 2011 (3-D). The sponsors claim their bill "would create more than 2 million jobs, $10 trillion in economic activity, and $2 trillion in federal tax receipts (conservative 30-year estimates)." Among 3-D's major features are provisions to prod the federal bureaucracy to speed up Outer Continental Shelf lease sales for oil and natural gas exploration and development off the U.S. coasts, as well as federal permitting for energy purposes on public lands. The measure also would fix time limits on environmental and judicial reviews of leases and permits.
So what has all that to do with the two menacing figures blocking your way? The 3-D proposal would cap EAJA payouts in environmental lawsuits against the government. Under EAJA, Big Green environmental groups like the Environmental Defense Fund and Center for Biodiversity file hundreds of suits against the government every year, knowing the odds are great the litigation will be settled out of court. Win or lose, the Big Green groups receive millions of dollars in settlements, including lawyers fees and other cost reimbursements. The settlements are paid by the Treasury Department's Judgment Fund. Vitter and Bishop estimate that at least $4.7 billion has been paid out since 2003, with much of it going to Big Green groups.
But here's the catch: According to the Treasury Department, "the Judgment Fund has no fiscal year limitations, and there is no need for Congress to appropriate funds to it annually or otherwise. Moreover, disbursements from it are not attributed to or accounted for by the agencies whose activities give rise to awards paid. Absent a specific statutory requirement, the agency responsible is not required to reimburse the Judgment Fund." In other words, EAJA invites Big Green attorneys to file suits regardless of merit, knowing their hefty fees will be covered in the settlement paid from the Judgment Fund.
Worst of all, taxpayers have virtually no way of knowing how much such suits cost because courts often seal the settlements. Plus, according to Vitter and Bishop, "since 1998 there has been no uniform method of reviewing EAJA and there is no public accountability or transparency in the program." Tomorrow's Examiner editorial will look at the victims of this legalized theft and the lengthy list of Big Green perpetrators assaulting them.