Taxes fund environmental suits - Environmental law firms reap billions in fees to fund lawsuits

The federal government has paid out billions of dollars to environmental groups for attorney fees and costs, according to data assembled by a Cheyenne, Wyoming, lawyer.

Karen Budd-Falen of Budd-Falen Law Offices [main@buddfalen.com or 307-632-5105] said the government between 2003 and 2007 paid more than $4.7 billion in taxpayer money to environmental law firms -- and that's just in the lawsuits she tracked.

"I think we only found that the iceberg exists," she said. "I don't think we have any idea how much money is being spent. But I think it's huge."

In some cases, Budd-Falen said, intervening ranchers and farmers are paying for the defense of their farm and ranch practices and -- through their taxes -- paying for the opposing lawyers' attorney fees.

"That money is not going into programs to protect people, wildlife, plants and animals," Budd-Falen said, "but to fund more lawsuits."

Budd-Falen, whose firm regularly represents farms and ranches, for years was aware that nonprofit, tax-exempt environmental law firms were generating sizable revenue from attorney fees paid by the federal government. In June, she submitted a formal request asking the Department of Justice for information on just how much was being spent.

After the response, Budd-Falen sat down with a paralegal and started what she said was a time-consuming process of uncovering and compiling the data.

"Somewhere this has to stop, and the government has to be held accountable for the money it's spending," she said.

Budd-Falen documented that between 2000 and 2009, three tax-exempt, non-profit environmental groups -- Western Watersheds Project, Forest Guardians and Center for Biological Diversity -- filed more than 700 cases against the federal government.

"Ranchers and other citizens are being forced to expend millions of their own money to intervene or participate in these lawsuits to protect their way of life when they have no chance of the same attorney-fee recovery if they prevail," Budd-Falen said.

Budd-Falen found in one 15-month-long case that Earthjustice Legal Foundation and the Western Environmental Law Center filed for $479,242 in attorneys' fees.

Brian Smith, a spokesman for Earthjustice, said the foundation counts on those fees in part because it represents groups free of charge. He said the foundation bases its fees on the going rates for attorneys.

Also, he said, if the government was doing its job, the foundation wouldn't be so active.

"If the government had been enforcing the laws during the Bush administration," he said, "there would be no jobs for nonprofit environmental lawyers.

"The environmental movement would love to retire and know that everything is safe, but that is not happening," he said.

Smith said he is confident President Barack Obama's administration will reduce the need for environmental lawsuits.

"The (Environmental Protection Agency) has been very active in the new administration," he said. "That has been encouraging to see how they are stepping in and enforcing the laws."

Budd-Falen, however, said she doubts the steady stream of lawsuits will stop, or even slow.

"Why would you stop filing litigation when you can get that kind of money?" she asked.

"They are not filing these suits to try and protect the environment," she said. "They are filing these suits to make money."

Environmental groups, she said, are eligible for government funds under the Equal Access to Justice Act, which provides for the award of attorney fees to "prevailing parties" in cases against the government.

In order to prevail, under the act, all a group has to do is show a government body changed some policy or program as a result of the suit.

The firms also are accessing government funds through the Judgment Fund, Budd-Falen said,. The fund is a line-item appropriation in the federal budget used for paying claims against the government.

Much of the funds to pay the attorney fees, she said, are being pulled from the budgets of cash-strapped regional offices of natural resource agencies.

"Those budget items ought to be used for range improvement projects, trails or campgrounds, whatever the agency is supposed to be doing," she said.

Budd-Falen in her research also documented salaries paid to top environmental executives. On top of that list was the $446,072 salary paid the president of the Environmental Defense Fund. Second was the $439,327 salary paid the president of the World Wildlife Fund.

Budd-Falen said it is important to bring to light the cost of environmental litigation in the hope Congress might scale it back.

Also, she said, it is important for the public to realize just how much taxpayer money is being spent on these cases.

"We are going to get back to this again and track some more of these dollars," she said, "because I think we ought to know (how much we're spending on this). And if Congress or the Justice Department won't do it, I think somebody has to."

Here's another thing they were involved in:

Washington, DC

Just one week before President Clinton will attend a major conference on ocean policy, a coalition of coastal residents, fishermen and environmentalists has filed a lawsuit against the federal government for failing to prevent overfishing and reduce waste in our nation's fisheries.

The lawsuit challenges regulations published by the National Marine Fisheries Service (NMFS) earlier this month to implement key conservation provisions overwhelmingly added by Congress in October 1996 (unanimously in the Senate and by a 10 to 1 margin in the House) to the Magnuson-Stevens Act, our nation's federal fisheries law.

"Eighteen months ago, Congress sent a very clear message to the federal government to stop allowing overfishing and to reduce bycatch -- the killing of unwanted fish caught through indiscriminate fishing practices," stated Steve Roady, director of the Ocean Law Project. "Unfortunately, what Congress offered with one hand, a federal agency is now poised to take away with the other. At a time when the federal government already lists one-third of the nation's marine fish populations whose status is known as overfished or approaching an overfished condition, we are deeply disappointed that NMFS has devised rules with loopholes big enough to drive a factory trawler through," concluded Roady.

Although the federal rules would prohibit overfishing of some fish, under the agency's interpretation the law would allow overfishing when more than one kind of fish are managed together in a group. "This loophole will permit continued overfishing of the very fish populations most in need of protection and rebuilding," said Lisa Speer, senior policy analyst for the Natural Resources Defense Council. "In addition, the new regulations will allow managers to permit overfishing of one or more fish populations simply by managing those populations together with other, healthier stocks," said Speer.

The problem with these "mixed stock" fisheries is that government managers often are under intense pressure to allow overfishing of the weakest members of the assemblage in order to permit increased fishing of those fish with greater numbers. "Several rockfish populations managed as 'mixed stocks' on the West Coast are in severe decline," stated Bob Eaton, executive director of the Pacific Marine Conservation Council. "Reforming how these fish are managed is the number one challenge to sustaining our fisheries," Eaton continued.

"The overfishing loophole would allow business to continue as usual," Eaton added. "By NMFS' own estimate, conservation measures to recover overfished populations could increase revenues from fishing by $3 billion and add 300,000 new fishing jobs. But those long term gains for our coastal communities won't be realized if the government yields to short-term economic pressure to continue overfishing," Eaton concluded.

This overfishing problem also occurs on the East Coast in the Caribbean, South Atlantic, and Gulf of Mexico regions, where 18 grouper, snapper, and other reef fish species are currently overfished but are included in mixed stock management plans with healthier fish stocks. "The collapse of these stocks will be made almost certain if NMFS allows them to continue to be overfished simply because they have been bundled together with other, healthier stocks for management convenience," stated Alexander Stone, executive director of ReefKeeper International.

"NMFS is contorting a new, sustainable fisheries law to allow one fish species to be overfished if it is part of a multi-species fishery," said Peter Van Tuyn, litigation director of Trustees for Alaska. "Overfishing is, by definition, not sustainable and can have serious consequences for birds, marine mammals and other marine life that compete with fisheries for food," Van Tuyn continued. "In taking this approach, NMFS turns the precautionary management called for by Congress into risk-taking management. Our oceans and coastal communities deserve better."

The second loophole in the NMFS rules involves Congress' directive to reduce bycatch -- the killing and discard of non-target species -- which is a massive problem in several regions of the country. For example, fisheries in the North Pacific off Alaska throw away millions of pounds of dead and dying fish each year; in 1995, this bycatch was as great as the total catch of all other major fisheries off the shores of the United States. In the Gulf of Mexico shrimp fishery, four pounds of fish are killed in shrimp nets for every pound of shrimp.

"In 1996, Congress clearly found that bycatch was destructive and must be minimized using a common sense approach," stated Dorothy Childers, executive director of the Alaska Marine Conservation Council. "The rules as written by NMFS, however, could block any requirements to minimize bycatch where economic costs to industry are deemed more important than conservation of the resource," Childers concluded. "This is especially troublesome," noted Bob Irvin, vice president of the Center for Marine Conservation, "since bycatch can include many fish species vital to the functioning of the marine environment."

"The National Marine Fisheries Service has a wide variety of proven and economically sound management tools at its fingertips which can end overfishing, rebuild depleted populations in our nation's valuable mixed stock fisheries, and minimize bycatch," said Doug Hopkins, Program Manager of the Environmental Defense Fund's Oceans Program. "By setting aside no-take areas as marine reserves and by creating strong incentives for fishermen to develop gear and fishing methods that let overfished species escape capture, NMFS can help save the troubled US fishing industry."

The lawsuit was filed last Friday in federal court in Seattle by the Ocean Law Project of the Earthjustice Legal Defense Fund on behalf of the Alaska Marine Conservation Council, Center for Marine Conservation, Environmental Defense Fund, Natural Resources Defense Council, Pacific Marine Conservation Council, ReefKeeper International, and Trustees for Alaska.

Initiated by The Pew Charitable Trusts, the Ocean Law Project is charting a national and regional legal strategy to ensure faithful implementation of the new conservation provisions of the Magnuson-Stevens Act and other laws to protect living marine resources. "Many of the problems leading to the current state of crisis in our fisheries could be fixed, if government agencies would follow existing law," stated Joshua S. Reichert, director of The Pew Charitable Trusts' Environment Program. "The Ocean Law Project will give concerned citizens, conservation organizations, and fishing groups access to the legal tools needed to ensure that the federal government will live up to the promise of restoring our fisheries and marine life."

Contact: Steve Roady, Ocean Law Project, Earthjustice Legal Defense Fund, (2O2) 667-45OO
Valerie Holford, Fenton Communications, (2O2) 822-52OO ----- "Conservation Groups File Suit Against National Marine Fisheries Service" June 1, 1998 http://www.earthjustice.org/news/press/004/conservation_groups_file_suit_against_national_marine_fisheries_service.html

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