The Environmental Relevance of the Equal Access to Justice Act

July 25, 2013
Guest Post

by Brian Korpics, Law Fellow at the Environmental Law Institute

For three decades, the Equal Access to Justice Act (EAJA) has enhanced parties’ ability to hold government agencies accountable for their actions and inaction. EAJA allows individuals, small businesses and nonprofits to recover attorney fees from the federal government. Fee awards are available only in cases where plaintiffs prevail and the government cannot demonstrate that its legal position was “substantially justified.”The law is used to vindicate a variety of federal rights, including access to Veterans Affairs and Social Security disability benefits, as well as to secure statutory environmental protections: it promotes public involvement in laws such as the National Environmental Policy Act, Clean Air Act and Clean Water Act. EAJA also helps deter government misconduct and encourages all parties, not just those with resources to hire legal counsel, to assert their rights. The lawhas generally enjoyed bipartisan support since its enactment in 1980.

However, recent political rhetoric has portrayed EAJA as a cash cow for environmental groups that, allegedly, file frivolous lawsuits against federal agencies. One member of Congress has argued that public interest environmental litigation resulting in fee payments under EAJA or other statutes amounts to “the fleecing of Americans by some big, so-called environmentalist groups.” Citing budget concerns, a series of proposals in the House of Representatives have sought to limit or eliminate the ability of environmental organizations to invoke EAJA. The Government Litigation Savings Act, which has yet to be reintroduced in the 113th Congress, is a good example.

Proposed amendments to EAJA take several forms. They include redefining “prevailing party” to emphasize monetary relief and severely limit the law’s application where injunctive relief is being sought, which is of course common in environmental cases and other impact litigation. Other potential changes include eliminating EAJA’s coverage from non-profit groups above a certain size and net worth, dropping pro bono representations from coverage and capping the frequency and size of fee awards. It has also been argued that annual reports are needed—though Congress itself eliminated EAJA’s reporting requirements in 1995.

A new study by the nonpartisan Environmental Law Institute analyzes the stated grounds for amending EAJA, as well as the proposed mechanisms for doing so. The report, Shifting the Debate: In Defense of the Equal Access to Justice Act, concludes that EAJA has been cost-effective, applies only to meritorious litigation and that existing legal safeguards and the independent discretion of federal judges will continue to ensure its prudent application. Although some degree of additional reporting on EAJA’s operation may be useful, we identified no other compelling grounds for amending the Act.

Much has been made
about environmental groups obtaining fees in suits that are “merely” procedural. But procedural requirements and deadlines contained in environmental laws are paramount to ensuring the protections that Congress has enacted. Indeed, in the case of the National Environmental Policy Act, the nation’s foundational environmental statute, following sound procedure is the entire point of the law. NEPA requires agencies to take a “hard look” at the consequences of their actions and to carefully consider alternatives, but compels no particular outcomes. More broadly, both public-interest and industry litigants would agree that “procedural” litigation under the Administrative Procedure Act is essential to checking executive power on a range of issues.

Moreover, the claim that large environmental groups are getting rich on attorney fees simply is not supported by available evidence. A recent GAO study (requested by House Republicans) of cases brought against EPA found that most suits were brought by trade associations and private companies, and that attorney fees were awarded only about eight percent of the time. Among environmental plaintiffs, the majority of cases were brought by local groups rather than national groups.

In the absence of sound fiscal or other policy reasons to pare back EAJA’s coverage, most current “reform” efforts are actually directed at restricting unwelcome legal challenges or a subset of disfavored plaintiffs. In practice, then, an EAJA rewrite would have the effect of watering down the implementation and enforcement of environmental law.

If indeed the ultimate goal of some in Congress is to restrict environmental protection, public discourse should center on the specific policies and legacy of individual environmental statutes. To focus attention instead on the organizations that are seeking to vindicate the objectives and rights contained in those laws—and doing so successfully enough to merit attorney fees—misses the mark.