Environmental litigation draws heat in an election year

Lawsuits filed by environmental groups challenging timber sales on federal and state lands and decisions for listing species as threatened or endangered under the Endangered Species Act have become hot-button issues in this year’s election.

Opponents of the lawsuits say the Equal Access to Justice Act unfairly rewards lawyers for environmental groups by paying attorney fees with tax dollars. Environmental groups respond by saying the law holds the federal government accountable and paying attorney fees is critical to their efforts to protect wildlife and habitat.

The Alliance for the Wild Rockies, the Montana Ecosystems Defense Council and the Native Ecosystems Council have been involved in more than 200 court cases nationwide as plaintiffs or co-plaintiffs against the Forest Service, Bureau of Land Management and Fish and Wildlife Service.

AWR has been a plaintiff in 212 lawsuits dating back to 1989, NEC has participated in 101, and the MEDC has participated in 18, according to court records. In many of the same cases, the groups filed as co-plaintiffs.

The three groups and their co-plaintiffs have been awarded $617,058 in attorney fees over the last five fiscal years in lawsuits against the Forest Service, and $572,058 came under the Equal Access to Justice Act, according to Forest Service records. About $45,000 went to AWR attorneys under the Endangered Species Act judgment fund.

Those figures are taken into account by Forest Service land managers.

“We pay attention to litigation when we look at analysis and pay attention to where the courts have told us we did not supply enough information,” Forest Service spokeswoman Elizabeth Slown said. “I would say the approach we take on litigation is to use each one as a learning opportunity.”

Forest Service money for attorney fees typically comes from individual forests’ budgets, Slown said. The agency does not budget for lawsuits, so money for lawsuits come from other projects, she said. It also means additional staff time reworking analysis.

“People are allowed to sue the federal government. We’re not against that, and we want to make sure the work we do is correct and strong,” Slown said. “It all ties back to being a natural resource agency, and what we do is based on people’s professional judgment.”

According to Tim Presso, an attorney for Earth Justice, the Equal Access to Justice Act provides equal footing to citizens suing government or corporations. Most lawsuits deal with Social Security and veterans disputes, which aren’t typically portrayed as abuses by politicians, he said.

Presso emphasized Earth Justice has not represented the three environmental groups in timber litigation. He offered to comment on the Equal Access to Justice Act and not individual court cases.

“(Opponents) frequently don’t like the fact that federal environmental law was enforced, but its fundamental purpose is to level the playing field,” he said.

Attorneys can be awarded legal fees only if they win, or in a settlement that includes a modification to a project based on the lawsuit, even if the government admits no wrongdoing, Presso said.

According to Julia Altemus, executive director for the Montana Wood Products Association, judges have awarded attorneys more than $350 per hour under the Equal Access to Justice Act. She also said the lawsuits often center on process objections under the National Environmental Policy Act rather than concerns about wildlife.

“That becomes a pretty good source of income, and it encourages them (attorneys) to go to court and sue because they make good money,” Altemus said. “They may sue on 12 points but only win on one, but get all the court costs back. It’s a business model for them.”

Lawmakers have reacted to the lawsuits by labeling environmental groups as obstructionists. These lawmakers now want to make suing more difficult. Provisions in the 2014 Farm Bill expedites forestry work by categorically excluding certain timber projects on national forest land that has been identified as “unhealthy” from a full environmental analysis, including public comment and objections. Montana’s congressional delegation supported the Farm Bill.

Environmental groups counter that the Equal Access to Justice Act is working as it should by holding government agencies accountable. The law ensures that average citizens will not be penalized monetarily for suing federal agencies.

“It seems to me the focus should be why the Forest Service keeps breaking the law — that’s the real story to me,” said Steve Kelly, executive director for the Montana Ecosystems Defense Council. “The laws are there to prohibit abuse, and there’s no public outcry against this.”

Kelly notes that money paid to attorneys is small compared to federal agency budgets in Montana, and if the Equal Access to Justice Act were eliminated, corporations and the timber industry would be free to take what they wanted from public lands. Most state politicians are beholden to the timber industry and corporations, he said.

“It all comes down to the haves and have-nots,” Kelly said. “If (the Equal Access to Justice Act) were taken away, we’d be a lot less able to protect wildlife habitat.”

AWR executive director Mike Garrity says laws like the Farm Bill make it harder for the public to have a voice in the management of public lands, said .

“I think that anyone should be concerned that the federal government doesn’t want the public to have a say,” he said. “They treat it like it’s their land, and they think it would be easier if the public just left them alone.”

Congress is supposed to ensure federal agencies follow the law, Garrity said, adding that AWR has won  lawsuits under judges appointed by Democrats or Republicans. The First Amendment not only protects free speech but allows for a redress of grievances when the government does something wrong, he said.

“We could never afford to pay (attorney fees) on our own,” he said. “I’m not going to apologize for successfully suing the government. How come no one is asking why the Forest Service has such a big problem following the law?”