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Industry Pot Calls Enviro Kettle Black

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Marian Lyman Kirst | Sep 08, 2011 09:00 AM

Environmental groups like the Center for Biological Diversity and the Chesapeake Bay Foundation are notorious targets for media label makers that live to pigeonhole with prose. courtroomWhen discussing enviro groups, conservative media and industry lobbyists delight in tossing around terms like “radical,” “activist” and “left-wing.” Lately though, and particularly after U.S. Fish and Wildlife Service’s recent settlement with two powerful wildlife conservation groups--which was itself spurred by a lawsuit and aimed, in part, at reducing future ones--the term most often Sharpie'd on paper and taped high school-style to environmentalists' backsides is “litigious.”

But if the USFWS is the enviros’ legal whipping boy, then the Environmental Protection Agency is industry’s. A report released this week from the Government Accountability Office — a non-partisan, investigate arm of Congress — says that, in fact, it's trade associations and private companies — not environmentalists — that most often sue the EPA. Industry group suits comprise nearly half (48 percent) of the agency’s caseload. Meanwhile, local environmental citizens' group and national environmental group lawsuits, combined, account for 30 percent of EPA's legal labors; the rest were filed by states, municipalities, individuals, universities, unions and tribes.

What's more, only 1 percent of the 2,500 cases filed against the EPA between fiscal years 1995 and 2010 were brought under the Endangered Species Act. Most cases (59 percent) were filed under the Clean Air Act. Twenty percent were filed under the Clean Water Act, and 6 percent under the Resource Conservation and Recovery Act, a statute that gives the EPA authority to control the production, movement, treatment, storage and disposal of hazardous waste.

The GAO completed the report at the request of David Vitter, R-LA, and James M. Inhofe, R-OK, two in a seething heap of Republican legislators who have spent the last year scheming up ways to dismantle the agency because of “what they see as an activist agenda that is costing jobs and hurting Industrycorporate profits,” writes newsdaily.com reporter Malathi Nayak.

Not surprisingly, Vitter and Inhofe have ignored the frequency of industry lawsuits against the EPA and focused, instead, on how much "litigious" environmental groups are costing the taxpayer. The senators have latched on to GAO findings that say the Justice Department's Environment and Natural Resources Division—which handles EPA cases—spends an average of $3.3 million a year defending itself against lawsuits (about 3 percent of the division's budget).Vitter and Inhofe are also concerned about how much the EPA pays out in "legal returns," which, according to the report, includes attorneys fees and court costs to plaintiffs who win against the agency.

Interestingly, the GAO found that, while industry sued the EPA more often in the last 16 years, environmental groups received more payouts. According to the Washington Times, Earthjustice, a non-profit environmental law firm, received "more than $4.6 million in attorney fees during the period GAO examined--32 percent of the total. The Sierra Club and Natural Resources Defense Council accounted for another 9 percent."

The EPA makes these payouts under the EPA1980 Equal Access to Justice Act, which was passed to prevent legal expenses from deterring groups who want to challenge unreasonable government actions. The fees are also designed to bridge the resource gap between individuals, non-profit groups and the government.

These fees are paid only to successful litigants, and, as Vitter and Inhofe excitably point out, environmental groups, as the most successful litigants, received the majority of payments.

You can't help but wonder, then, if the senators aren't suffering sore-loser syndrome; or whether the bluster and bombast they fire at environmental groups and the EPA would subside if the industry lobby simply had a stronger case…say…public health before corporate profit.

Marian Lyman Kirst is an intern for High Country News

From top to bottom, images courtesy of flicker users Erin Nealy, Stefan Gara, and neoyogrt

Robb Cadwell
Robb Cadwell Subscriber
Sep 08, 2011 12:34 PM
Somehow I think we might have lost sight of the whole point here. We expect industry to maybe have agendas at odds with the Environmental Protection Agency (EPA). The EPA is our protection against industry trashing our environment. What we don't expect is for supposed environmental groups to try to hinder our Fish and Wildlife service from trying to save species.

Industries and senators whom they have in their pockets wish to pollute more, I understand that. The EPA and the USFWS acting on behalf of the citizens of the USA try to mitigate the effects of pollution and save species. What are the motivations of the supposed environmental groups?

The environmental groups don't manufacture like industry does, they aren't a part of our government who works for us, they don't actually purchase habitat or pay for field work, (or it's a tiny portion of their budget) they litigate and have huge public relation fund raising budgets.

To me, and this is strictly my opinion, it seems like most environmental groups wish to eliminate hunting and ranching, and they have an elitist attitude that somehow they know better than all of those scientists working on my behalf in the US government.

If I were King I'd limit payouts under the Equal Access to Justice Act to groups that aren't multi million dollar orgs with in house attorneys.
Marian Lyman Kirst
Marian Lyman Kirst Subscriber
Sep 08, 2011 01:41 PM
Thanks for you thoughtful comment Robb. I think you make a good point. Even though they are non-profit, a lot of the nation's most powerful environmental groups have the same financial resources and political clout as indusrty. I do think in these discussions, USFWS biologists and field scientists get shouldered out of consideration.
Susanne Twight- Alexander
Susanne Twight- Alexander Subscriber
Sep 08, 2011 04:41 PM
I appreciate Robb's comments as well. Some environmental groups are overzealous. However, EPA has very little to do with hunting and ranching and a lot more to do with clean air and clean water and EPA was the topic of discussion in the article. I think these days ranchers look really good to many environmentalists who are concerned about oil drilling and the effect on groundwater.
Chris Eder
Chris Eder Subscriber
Sep 09, 2011 08:31 AM
That industry sues the EPA more often than environmental groups is a pretty unremarkable fact. After all, industry is generally the target of the regulatory programs under the Clean Air and Clean Water acts. While industry certainly litigates policy measures, the stats provided in your report do not offer the absolution to environmental litigants you seek.

First, the study only looks at law suits against the EPA. Environmental groups tend to file suit against a broader number of plaintiffs, including other federal agencies and private regulated entities. A responsible comparison would look at environmental litigation generally.

Second, and more importantly, you note that only 1% of suits against the EPA were brought under the Endangered Species Act. Again, this fact is entirely unremarkable due to array of other environmental statutes the EPA administers. The fact that the EPA rarely litigates ESA issues says very little about the incidence of ESA litigation generally.

Finally, if you wish to vindicate the purpose of environmental litigation, I would suggest talking about the clean air and water, responsible public lands management, and protections for endangered species that result. Attempting to suggest that groups like Earthjustice, Center for Biological Diversity, and NRDC do not make abundant and strategic use of litigation is simply an exercise in spin.
Sarah Gilman
Sarah Gilman Subscriber
Sep 09, 2011 09:42 AM
Chris--for the record, this blog does not suggest that environmental groups don't use litigation strategically and often. It just points out that industry does as well.

HCN is well aware of environmental groups' reliance on litigation and has covered it from multiple sides for decades. Recent articles include: http://www.hcn.org/issues/4[…]atus-and-how-enviros-helped

A Q&A with the head of CBD, which often sues the USFWS: http://www.hcn.org/issues/41.22/firebrand-ways

We've even run dueling op-eds on the subject: http://www.hcn.org/wotr/extreme-green

Hope you enjoy these.

Cheers,
Sarah Gilman
HCN associate editor
Chris Eder
Chris Eder Subscriber
Sep 09, 2011 05:12 PM
Sarah,

Well said. I have always been impressed with HCN's editorial perspective - honest yet without being stogy. Understand that my comments reflect a sentiment that this post falls short of the exceptional standard HCN has set.
Bob Berwyn
Bob Berwyn Subscriber
Sep 10, 2011 07:27 AM
The study also shows that the pattern of lawsuits changes depending on which party holds the White House, which isn't surprising, but highlights the desperate need to develop long-term, bipartisan natural resource and environmental policies for the country.
Pete Kolbenschlag
Pete Kolbenschlag Subscriber
Sep 22, 2011 10:02 AM
While some national conservation groups and law firms have large budgets, I do not think it is accurate to say they have 'the same' financial resources and political clout as industry.

The two most infamous Koch brothers alone (Chas. and Dave) are worth $44 billion. I would like to see a comparison of 'financial resources' and 'political clout' wielded by environmental groups vs. industry. My guess is it doesn't come close.
Felice Pace
Felice Pace Subscriber
Sep 23, 2011 06:53 PM
Ms.Kirst's blog hits the nail on the head ~ the hype about environmental litigation is just that...hype. Compared to the vast majority of public interest non-profits, industry and government have vastly more resources (money, staff, etc.).

Most EAJA awards go to individuals and groups representing veterans and social security recipients. A good chunk also go to those who are defending the earth. Only organizations with small budgets are eligible and, for the most part, those organizations do exemplary work enforcing the law, that is, seeing justice served for people and the earth.

Little wonder there are those in Congress who want to gut the Equal Access to Justice Act. We should not let that happen.

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