By Douglas T. Nelson
August 7, 2006
In recent years, the environmental activist community in
the U.S. has developed and perfected a very productive tactic of suing the
federal government and settling their claims for substantial attorneys' fees
and litigation costs.
Nowhere has this been more successful than the
recent settlement of the Washington Toxics Coalition vs. U.S. Environmental
Protection Agency. This complaint filed in January 2001 in Washington state
charged that EPA had not complied with provisions of the Endangered Species
Act by failing to carry out consultations with U.S. Fish and Wildlife and
the National Marine Fisheries Services. Such consultations are triggered
whenever a federal government entity like the EPA undertakes a "final
action." In this case, the court found EPA had not fully consulted when
registering certain pesticides and decided in favor of the plaintiffs.
Then, matters get interesting. After other legal
issues were dispensed with, the WTC played their trump card... they filed
for an award of the costs of litigation and attorneys' fees, in the amount
of -- get this -- $728,142.16. As an intervenor in this case, I can attest
that our legal fees for this action aren't anywhere close to this amount.
Amazingly, the U.S. Department of Justice agreed to settle with WTC in the
amount of $625,602.40, roughly 86 percent of the amount claimed, well above
the average award percentage.
The full amount of $625,600 and change was sent by
electronic transfer to Earthjustice, an environmental activist group based
in Seattle. Obviously, these monies used to settle the claim came from the
U.S. Treasury, provided from tax dollars from you and me. Of course, we had
no voice in the award decision.
Is this cozy arrangement in which the activists are
engaged -- suing, settling and recovering costs and fees -- in the best
interests of our judicial system and ultimately our national budget? Where's
the fairness in the seemingly endless cycle of lawsuits and awards that then
fuel the litigation machine for the next lawsuit?
It is especially vexing since in this case no harm
of an endangered species was even alleged because of the failure to consult,
nor any species "saved" by this result.
Provisions in the Clean Water Act and Endangered
Species Act for filing of citizen suits are designed to hold our
government's feet to the fire on issues, and this policy certainly has
merit. But exorbitant awards, as seen in the Washington Toxics case, lead
readily to judicial abuse and encourage more and more litigation to clog our
legal system. We need to apply greater equity in deciding award claims and
avoid giving up extra points for a "Hail Mary" pass play.
Douglas T. Nelson is executive vice president and
general counsel for CropLife America