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Policy: Environment & Energy

How Endangered Species Act litigation means big money for environmental groups

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Opinion,White House,Congress,Columnists,Sean Higgins,Interior,Energy and Environment,Law

For most people, an hourly wage of $125 would be an awfully good deal, especially in this economy. But President Obama and environmental groups are warning that it is not nearly enough for one group: lawyers engaged in Endangered Species Act litigation. They would prefer that these attorneys continue to get the $300 to $450 an hour they are typically paid now.

Who is paying these fees? In many cases, it is the taxpayers. That's because most ESA litigation is by private nonprofit groups against the federal government. By law, the government pays "reasonable" attorneys' fees if the claims hold up in court.

In other words, the government literally pays people to sue it. The costs add up, too. The Interior Department paid out more than $21 million in attorneys' fees to outside groups engaged in ESA cases between 2001 and 2010, according to a 2012 Government Accountability Office study.

The numbers may actually be even higher — GAO noted that Interior didn't have a process for tracking that information.

One reason why costs are so high is that there is no strict definition as to what constitutes reasonable attorneys' fees. That's significant because much of the litigation is not done, as one might think, by in-house attorneys at environmental groups. Outside legal help is often brought in, and those people don't always work pro bono.

Environmental groups I spoke with said the rates need to be somewhat comparable to what corporate attorneys get paid for the same work. "Rates for big law partners in major cities can be insanely high (like $850/hour), and we've always tried to stay in the reasonable range," said John Buse, legal director for the Center for Biological Diversity. So charging taxpayers as much as $400 an hour is really a bargain, if you think about it.

Even in cases where the litigation is done in-house, the groups sometimes charge similar rates. "Our lawyers need to get paid for their time," said Ya-Wei Li, an attorney with Defenders of Wildlife.

Rep. Doc Hastings, R-Wash., chairman of the House Natural Resources Committee, doesn't see it that way. Last week, the House passed a bill he sponsored called the 21st Century Endangered Species Transparency Act. Most of its provisions relate to making public the data used in ESA policymaking, but the bill also caps attorneys' fees at rates specified by the Equal Access to Justice Act.

That drew a strong veto threat from the president. He was not particularly eager to delve into the details, though. The official White House statement said only that the legislation's litigation provisions would "limit the ability of citizens to seek recourse in the courts against unlawful Federal actions, diminishing a critical tool for citizens."

Defenders of Wildlife took a similar tack, warning in a press release that the bill "reduces the ability of the public to hold agencies accountable for failing to comply with the law" — without explaining exactly how it was reduced.

Both statements were pretty misleading, since — as even environmental groups concede — nothing in Hastings' bill makes filing an Endangered Species Act case harder or shifts the legal burden of proof. It just makes filing a case less lucrative.

CBD spokesman Brett Hartl defended the fees, insisting the payments are based on market rates and are only made when cases are "successful on the merits." The center's website boasts that it has an "unparalleled record of legal successes — 93 percent of our lawsuits result in favorable outcomes."

Hartl added that while Big Business doesn't file as many cases under the ESA, when it wins, it gets to recoup its fees as well.

You don't often get environmentalists citing Big Business' policies as a model to follow, but they will make an exception when it comes to getting money from the government.

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