Monday, December 28, 2009

How the Big Boys Do It...

A previous commenter described a process in which environmental litigants can obtain substantial financial rewards by suing government agencies, e.g., USFWS and EPA, providing the agency with the authoritative and political cover they require to implement that which they already have the desire to implement. Below is an example of a standard, boiler plate law suit issued by Brent Plater (staff attorney for the Center for Biological Diversity) against the United States Fish and Wildlife Service and the Department of the Interior. If you scroll down to page 18, items #8 and #9, you will see the verbage utilized to "bring home the Benjamins", as our commenter so aptly put it.


posted by: Rocky Golub


Steve Sinai said...

Asking the judge to make the other side pay your legal costs is pretty standard.

Rocky said...

Legal costs, e.g., filing fees, transcript fees, are standard and usually compensable. Attorney's fees are quite a different matter.

Steve Sinai said...

That's not right, Rocky. Inserting language into legal documents asking the other side to pay for legal costs, including attorney's fees, is a standard request. It's rarely granted, though.

Regis Philbin said...

What is going on here is very different than asking the other side to pay costs. They are asking for reimbursement under terms of the EAJA. This was not the intent of the Equal Access to Justice Act. When it was passed 30 years ago, it was intended to "protect the ability of ordinary citizens to seek redress for government misconduct". It was not intended to be a "pay to sue" gravy train for environmental litigation firms, but that is what it has become. Unlike the boiler plate request for legal costs that are rarely granted (as SS notes), hundred of millions, perhaps billions have been paid out under EAJA to firms like the CBD.

Interestingly, there is a size limitation on "prevailing parties" getting reimbursed under the EAJA or the Justice Fund, which goes to the original intent of the legislation.

This could be a problem for an organization that has become very successful suckling at this particular federal teat, as they might appear to get too big to qualify for the reimbursement.

As a hypothetical - let us speculate that there is an environmental litigation firm - lets call it the Diverse Biological Institute, who have been collecting these fees from the feds for a lot of years. Then some politicians start to notice that a lot money is going to a few of these "non-profit" firms. Moreover, incredible as it seems, there has been no oversight or visibility into where the money is going since 1995. None.

Just hypothetically, one might speculate that a way to avoid too much scrutiny, is take a smart staff attorney located in another state, and spin off a new smaller organization, lets call it - the "Center for Equitable Wildness" which - of course - would have no association with the "Diverse Biological Institute". It's kind of a franchise deal. Opening up a new fertile territory if you will.

I'm thinking it might even make a great reality gameshow. My "Who wants to be a Millionaire" deal has been slipping in the ratings for a while. How about - "Who Wants to ride the Enviro-Litigation Gravy Train?"

Anonymous said...

Rocky said...

Steve, you are mischaracterizing what I said. I honestly don't get the point you are trying to make. I stated that this was a boiler plate lawsuit. No one is arguing whether or not attorneys ask for legal fees. The issue is whether they get them (which you admit is rare). Regis, on a previous thread described that the EAJA provides for recovery of attorney's fees in the case where the losing defendant is a government agency. My post was nothing more than a confirmation of Regis' earlier post on another thread. I never argued that litigants don't ask for attorney's fees.

Steve Sinai said...

Rocky, I may have misunderstood what you were trying to say, but I wasn't trying to mischaracterize it. It sounded to me like you were agreeing with the previous assertion that CBD files lawsuits as a business model, and were saying that the boilerplate clauses included in the legal claim were evidence of that. Using the term "bring home the Benjamins" reinforced that view.

What I saw were boilerplate clauses along the lines of those included in many, if not most lawsuits. Since judges so rarely make one side pay for the legal costs of the other, I had a hard time believing that this was evidence of CBD's purported business model of suing the government.

But if that's not what you were saying, then sorry, I misunderstood.

mw said...

I think this is an important point for people to understand - so for clarity, let me beat this dead horse one more time and quote the portion of this complaint that Rocky was pointing to:

"Award Plaintiffs their reasonable fees, costs, and expenses, including attorney fees, associated with this litigation pursuant to the ESA, 16 U.S.C. 1540(g)(4) and EAJA, 28 U.S.C. 2412(d)(1)(A)..."

Operative acronyms being ESA (Endangered Species Act) and EAJA (Equal Access Justice Act).

Unlike general lawsuits where - as you say - "judges rarely make one side pay for the legal costs of the other" - under the EAJA umbrella - all they have to show is that they prevailed, and the federal spigot is opened.

Jeffrey W Simons said...

How easy it would be to make a pile of $$$ by being the CBD, coordinating a lawsuit under the ESA, and recouping $125/hr from the EAJA all in the name of "environmentalism."

Sinai, I find it kind of amusing that you have been one of the most vocal proponents of reforming the Pacifica City Attorney's budget after she farmed out millions to her lawyer pals under the umbrella of the city council's obstructionist agenda.

(btw, no investigation into the motivation to hire an outside attorney to essentially stonewall negotiations qwith Coastside last year at a cost of $100,000 to the city and another $100,000+ to Coastside? Lionel Emde, where art thou? Follow the money! I bet someone made a partnership on that deal.)

Yet when it occurs on a national scale with Brent Plater and the Platerites, you tend to scoff. Its the same scam, only on a larger scale.

All in the name of "environmentalism", or in this case shrinking the world in which the humans live and play.

Jeffrey W Simons said...

btw, the boilerplate for lawsuits usually do ask for recouping of attorney's fees, but usually a plaintiff is an aggrieved party who is alleging some tangible "damage" that has resulted in the lawsuit when all other methods of seeking remedy have been exhausted.

There are several CBD lawsuits against non-governmental entities where the judges basically said the CBD did not suffer any damages and cannot act on behalf of (nor reclaim lawyer fees for) "the environment."

I think you'll also find a lot of these CBD lawsuits are pre-emptive. In other words, they rarely approach the party they are going to sue and offer to negotiate in good faith (if you recall, the act that precipitated this whole discussion about the golf course was precipitated by the threat of a lawsuit unless the SF Board of Supervisors acted within 30 days to "protect" the frogs ans snakes. Yet, when the Parks and Recs department suggested a solution that protects the frogs and snakes but retains the golf course, Plater had a hissy fit and sued for "dirty water". Of course, John Curtis told the Planning Commission that declaring the site an historic landmark, AFTER the CBD had threatened to sue, was "firing the first shot." note to self, never have Curtis on my side for any action where I am required to defend myself with more than a few harsh words).