Budd-Falen
WASHINGTON (Legal Newsline) - A little known provision contained in federal environmental laws known as the "citizen lawsuit" is funding political special interest groups, critics say.
"It is the environmental law equivalent of ambulance chasing," said Karen Budd Falen, a Wyoming attorney who represents litigants in cases involving the Endangered Species Act, the Federal Lands Policy and Management Act the National Environmental Policy Act, the Clean Water Act and other environmental statutes.
The citizen lawsuit provision was first included in the Clean Air Act (CAA), but was also added to the Clean Water Act (CWA) and to subsequent environmental laws. It allows environmental activist groups to sue energy companies and other businesses which they claim have violated environmental regulations. It also permits suits against the Environmental Protection Agency (EPA) and state environmental bureaus for failure to enforce environmental regulations.
There is one unusual aspect to these legal actions, not only do groups such as the Sierra Club and similar activists sue the EPA, they are often joined by the EPA as intervenor. If they win, they are awarded attorneys fees and very often receive donations from the very company that was sued.
Professor David Schoenbrod, a trustee professor of law at New York Law School and a visiting scholar at the American Enterprise Institute, explained how the system works.
"Normally law enforcement is done by the government but most environmental statutes contain provisions that allow any citizen affected by a violation to bring an enforcement action against the violator," Schoenbrod said.
Schoenbrod, who also worked as an attorney for the National Resources Defense Council, noted that if the plaintiff can get an injunction against a company found to be in violation, a fine is paid to the government, and also attorney's fees are paid to whoever is representing the plaintiff. The plaintiff, of course, is the environmental organization that brought the suit.
The attorney fees received, Schoenbrod observed, are often greater than the actual cost to the organization of bringing the case.
"So, if the Sierra Club has a member that is affected in some way by a power company's emissions, then they are entitled to sue," Schoenbrod said.
"I used to do this when I was at the Natural Resources Defense Council. There are thousands of such suits brought. Environmental groups would crank these out by the hundreds. They get an intern to look at a company's emissions reports and compare those figures with what the permit authorized.
"Once brought, the EPA can intervene."
This is how, for example, the Sierra Club - which sued the Dairyland Power Cooperative (DPC) of Wisconsin in 2010 - was joined in the suit by the EPA. The case settled last month.
As part of the settlement it was ordered that, "DPC shall pay Sierra Club's reasonable attorneys' fees and costs... for activities prior to entry of this Consent Decree by the Court is hereby extended until 30 days after this Consent Decree is entered by the Court. ... Sierra Club and DPC shall seek to resolve informally any claim for costs of litigation (including attorneys' fees), and, if they cannot, will submit that issue to the Court for resolution."
Editor's note: This story has been updated and corrected. In the original report, the article implied that Schoenbrod made a statement that companies named in environmental citizen lawsuits "not wanting to pay a fine that is not tax deductible opt to settle by making a tax deductible donation to the suing group, thereby funding the environmental activist organization."
Schoenbrod, who also is a former Natural Resources Defense Council (NRDC) attorney, did not make that statement.
NRDC Litigation Director Mitchell S. Bernard wrote, "NRDC was formed 42 years ago. I am aware of no instance in which NRDC accepted settlement funds from a defendant. In some settlements a defendant agrees to fund an environmental project to help mitigate the harm that prompted the suit in the first instance. Those funds do not go to NRDC. We litigate to protect the environment and human health, not to make money."