WASHINGTON (Legal Newsline) - "Big Green" groups and their "Big Green" lawyers have raked in millions by virtue of the citizen suit provisions of the Clean Air and Clean Water Acts - but that wasn't the original intent of the laws.
Environmental groups being awarded taxpayer money as attorneys' fees has outraged Sen. James Inhofe (R-OK), ranking member of the Senate Committee on Environment and Public Works (EPW) and Sen. David Vitter (R-LA), a committee member.
The senators had asked the Government Accountability Office (GAO) for a report that examined environmental litigation for fiscal years 1995 through 2010.
Among the findings in the report released in 2011 was that environmental groups profited more than any other plaintiff in litigation against the Environmental Protection Agency (EPA).
"The GAO report uncovers, for the first time, the millions of taxpayer dollars that are going to attorneys' fees for environmental litigation against the Environmental Protection Agency," says an EPW statement about the report. "Yet, the report is limited because GAO, the government watchdog, was unable to obtain information from several federal agencies during the requested time period from 1995-2010."
The report includes litigation costs for all EPA environmental statutes except the National Environmental Policy Act (NEPA).
For example, the report's data table indicated that Earthjustice - the legal arm of the Sierra Club - received $4,655,425.60 or 32 percent of all attorneys' fees paid to EPA litigants.
When combined with the attorneys' fees the Sierra Club received outright ($966,687.34), the Sierra Club and its affiliates received $5,622,113 or about 39 percent of all the attorneys' fees awarded to EPA litigants.
The Natural Resources Defense Council (NRDC) was also a big recipient, raking in $252,004.87. When adding the NRDC amount to the Sierra Club/Earthjustice gains, the three represent a whopping 41 percent of all the attorneys' fees awarded to EPA litigants.
The report also said that from fiscal year 2006-the first year for which EPA specifically tracked the payments by type of claim-through fiscal year 2010, 84 percent of all the payments the EPA made for attorney fees and other costs under the Equal Access to Justice Act (EAJA) went to claims filed by local and national environmental groups.
The EAJA authorizes the payment of attorney's fees to a prevailing party in an action against the United States absent a showing by the government that its position in the underlying litigation was substantially justified.
"In addition to attorneys' fees awarded, the GAO found that the Department of Justice (DOJ) spent at least $43 million in taxpayer dollars defending EPA in court from 1998 - 2010," the EPW committee noted. "Further, the report uncovered that most of the attorneys' fees paid to environmental organizations were paid under the Clean Air Act, followed next by the Clean Water Act."
Inhofe issued a statement after receiving the report.
"(This) GAO report is the tip of the iceberg as we work to get to the bottom of just how many taxpayer dollars are going to pay attorneys' fees in environmental suits," he said.
"It is outrageous that these agencies couldn't provide the requested information and it is even more concerning that we have yet to get the full story. Not surprisingly, we have learned from the data provided in the GAO report that several big green groups have benefited financially from citizen suit provisions, which was not the original intent of the law.
"We have also discovered a glaring lack of transparency on the part of EPA, DOJ, and the Department of Treasury as GAO was unable to obtain information for several years of litigation payments."
Vitter also issued a statement about the report, condemning the money trial lawyers were receiving suing the government.
"The GAO report shows that taxpayers have been on the hook for years while 'Big Green' trial lawyers have raked in millions of dollars suing the government," Vitter said. "Even worse, because of sloppy record keeping by the EPA and other agencies and a lack of cooperation by the Justice Department, we're not even sure how bad the problem really is."
According to EPW committee, the GAO discovered "a lack of transparency and accountability about environmental litigation expenses incurred in EPA litigation." Apparently, the EPA could provide data from recent years only, rather than the requested 15 years.
Some of the significant findings of the GAO were that there was "inconsistent formatting of key data elements," the report stated. This "produced significant problems" for the GAO's analysis and required significant manual review.
The GAO also noted that the Department of Justice "does not have a standard approach for maintaining key data on environmental litigation cases." The GAO also said that the EPA does not track its attorneys' time or costs.
The GAO indicated it could not calculate the total number of hours that Justice attorneys worked on environmental litigation.
The GAO said there were no plans to improve transparency and accountability.