B&C Position Statement - Equal Access to Justice Act

Situational Overview

Environmental litigation has become an expensive national policy issue that causes harmful gridlock for the federal agencies managing wildlife and public lands. At the center of the problem is the Equal Access to Justice Act (EAJA), which permits the recovery of attorney’s fees in lawsuit against the federal government. EAJA was enacted in 1980 to protect ordinary citizens and small business from governmental overreach and wrongdoing by giving them the means to pursue otherwise prohibitively expensive litigation. EAJA relief is eligible to individuals with a net worth of $2 million or less, a for-profit company with a net worth of $7 million or less and with less than 500 employees, or non-profits with no limit on net worth.  

Over the years, EAJA has shifted from being a well-intended corrective measure to a powerful weapon for large, well-funded special interest nonprofit groups to continuously sue the government on environmental issues. Litigation against government agencies is virtually nonstop because these groups can recover substantial legal fees under EAJA even if they win only a small part of the case or settle out of court. Most lawsuits are settled out of court, but the legal fees awarded to such groups and their attorneys each year can total millions of dollars annually. These awards, which often exceed actual legal costs, are then used to file new suits. EAJA has a cap on the amount of hourly legal fees that can be recovered ($125), but a broadly-construed exception in the law for “expertise” has allowed the cap to be routinely evaded.

The misuse of EAJA is particularly egregious in suits brought against the U.S. Fish and Wildlife Service and the Forest Service for alleged violations of the Endangered Species Act (ESA). Lawsuits are largely based on minor procedural violations by the government that have not caused actual injury to the group filing the suit. Moreover, the goals of such suits are usually disconnected from the purpose of the ESA—to recover and protect threatened or endangered species. Instead, these groups seek to stop development or end active management of natural resources to advance various idiosyncratic ideologies and agendas. 

Read B&C's Position in ESA. 

EAJA’s fee awards are supposed to be paid out of agency funds, which diverts significant sums that would otherwise be dedicated to conservation, but usually they are paid by the Department of Justice from the unrestricted Judgment Fund. Agency staff time is being diverted away from valuable research, management and enforcement activities in order to defend these lawsuits. This lost value of staff time and decreased morale, and funding is substantial, and is ultimately making conservation on the ground less likely to occur—or more expensive when it does. 

Position

The Boone and Crockett Club opposes abusive practices under EAJA, and maintains that reform, rather than repeal, is the best approach. The Club is fully aware that many individuals, for profit and nonprofit groups utilize EAJA for its well-intended purposes and that any reform needs to be surgical in nature with a primary focus on wildlife, land, forest and water issues, as well as how EAJA relates to other associated federal acts such as the ESA and the National Environmental Policy Act. 

In 2019, Congress passed a first step in EAJA reform as part of the John D. Dingell, Jr. Conservation, Management, and Recreation Act  (2019 Act)¹ based on the work of the Boone and Crockett Club’s advocacy. The 2019 Act included a provision that requires the federal government to annually report the fees awarded under EAJA, including the amount, the recipient, and other details of each case. The 2019 Act will undoubtedly increase transparency and provide additional examples of abusive practices, but the Club maintains there is already sufficient evidence to justify more potent reform measures. 

The Club’s Conservation Policy team has studied, evaluated and developed draft legislation that is accountability-oriented and closes EAJA’s loopholes. Reform measures advocated by the Club include, but are not limited to limiting the net worth and size of the nonprofits eligible to recover fees, reducing the massive size of the awards by instituting an evasion-proof cap on attorneys’ fees and the total collected per year, eliminating the ability to sue for minor procedural missteps instead of substance, and removing the legal precedent that compels agencies to settle out of court or face even larger awards, described as follows:  

1. Delete the existing exemption for 501(c)(3) nonprofit entities and require them to meet the same financial requirements as individuals that limit parties to a net worth of $2 million or less.
2. Require the prevailing party to have a direct and personal monetary interest in the adjudication including personal injury, property damage, or an unpaid agency disbursement.
3. Limit all legal fees to $175 per hour without regard to the cost of living.  There shall be no allowance for special factors or expertise premiums that permit any fee awarded to be higher than $175 per hour.
4. No party shall be awarded any amount in excess of $200,000 in any single adjudication, or for more than three adversary adjudications initiated in the same calendar year.
5. Awards shall be reduced or denied if the party to the proceedings engages in conduct which is oppressive, unreasonably obdurate, or acts in bad faith protracting the final resolution of the controversy.
6. In addition to requirements already in the law that now require listing the name(s) of the parties to a suit and to whom an award was made, the agency being sued, the amount of the award including fees and related expenses, and a description of the claims involved, the Chairman of the Administrative Conference of the United States in their annual report to Congress shall further include:

(a) The names of the judges in the adjudication;
(b) The hourly rates of expert witnesses and the amount of their total fee;
(c) The disposition of the case;
(d) The basis for the finding that the position of the agency was not substantially justified;
(e) The payment of fees and expenses awarded must be reported regardless of whether the settlement agreement is subject to nondisclosure provisions.

As the oldest conservation organization in North America, the Club urges Congress to finish the task it began in 2019 and apply the full complement of legislative reforms needed to achieve better results from EAJA. It is long past time to end the rampant waste, fraud and abuses that are depriving taxpayers and crippling conservation efforts by federal agencies. 

¹ John D. Dingell, Jr. Conservation, Management, and Recreation Act Public Law 116-9, Title IV—Sportsmen's Access and Related Matters, Subtitle C—Open Book on Equal Access to Justice, 133 STAT. 580, 762-64 (March 12, 2019).

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