Latest Press Release:
Access to Courts
Conservative Judge Janice Rogers Brown’s D.C. Circuit opinion rejected an industry challenge to a court settlement requiring the Fish and Wildlife Service to decide on whether to protect 251 animals and plants under the Endangered Species Act (ESA). Judge Brown’s decision undermined congressional attacks on access to court and rejected myths at the heart of attacks on so-called “sue and settle” environmental litigation.
“Soon after the ESA became law, the Supreme Court recognized that “Congress intended endangered species to be afforded the highest of priorities,” and “[t]he plain intent of Congress in enacting th[e] statute was to halt and reverse the trend toward species extinction, whatever the cost.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 174, 184 (1978). And the 1982 amendments, which added the warranted-but-precluded procedures, were designed to force the Service to pick up the pace. The consent decrees acknowledge this core purpose. …
“[T]he consent decree[s] do not require [the Service] to promulgate a . . . [listing] rule.” Perciasepe, 714 F.3d at 1324 … As in Perciasepe, the settlements simply require the agency to render a final listing decision—warranted or not-warranted—using a specific timeline, without dictating the agency’s substantive judgment. Accordingly, Appellants have failed to allege cognizable harm, see id. at 1324–25”
Congress has repeatedly included "citizen suit" and private attorney general provisions in a wide range of laws to ensure that essential environmental, civil rights, consumer, health, worker, property, and other legal safeguards are upheld and enforced. The Supreme Court unanimously held that a citizen who obtains relief “does so not for himself alone, but also as a ‘private attorney general,’ vindicating a policy that Congress considered of the highest priority. If successful plaintiffs were routinely forced to bear their own attorneys' fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts.”
The Supreme Court, in upholding the ability of individuals and organizations to sue polluters, recognized that: "Congress has found that civil penalties in Clean Water Act cases do more than promote immediate compliance . . . they also deter future violations." Courts have described how “extensive legislative history” establishes “that Congress intended citizen suits to both goad the responsible agencies to more vigorous enforcement of the anti-pollution standards and, if the agencies remained inert, to provide an alternate enforcement mechanism.” See
Sue-and-Settle Bill Threatens a Delicate Equilibrium, Penn Program on Regulation REGBLOG, Opinion by Daniel E. Walters (05/19/2015)
New “Sue-and-Settle” Bill is Much Ado About Nothing, Penn Program on Regulation REGBLOG, Opinion by Daniel E. Walters (03/24/2015)
ENVIRONMENTAL SETTLEMENTS AND ADMINISTRATIVE LAW (07/2015) Courtney R. McVean and Justin R. Pidot law review article concludes that "Environmental settlements have distinct advantages because they provide federal agencies with the opportunity to control litigation risk and overcome bureaucratic inertia. In the absence of a compelling justification for limiting the discretion of agencies to enter into settlements, Congress and the public should allow environmental settlement practices to persist."
ENVIRONMENTAL LITIGATION Impact of Deadline Suits on EPA's Rulemaking Is Limited, GAO-15-34 Report to Congressional Requesters, Dec. 2014
Shifting the Debate: In Defense of the Equal Access to Justice Act, by Brian Korpics, Jay Austin, and Bruce Myers, Environmental Law Institute, Nov. 2013
Citizen Suits at Thirtysomething: A Celebration and Summit, Widener Law Review’s Symposium
President Reagan stated: “I am pleased to be able to approve H.R. 2378, a bill to extend the Equal Access to Justice Act. I support this important program that helps small businesses and individual citizens right faulty government actions by paying attorneys' fees in court cases or adversarial agency proceedings where the small business or individual citizen has prevailed and where the government action or position in the litigation was not substantially justified."
A nonpartisan Congressional Research Service Report lists “roughly two hundred statutory [attorney fee provisions], which were generally enacted to encourage private litigation to implement public policy. Awards of attorneys’ fees are often designed to help to equalize contests between private individual plaintiffs and corporate or governmental defendants. Thus, attorneys’ fees provisions are most often found in civil rights, environmental protection, and consumer protection statutes. In addition, the Equal Access to Justice Act (EAJA) makes the United States liable for attorneys’ fees of up to $125 per hour in many court cases and administrative proceedings that it loses (and some that it wins) and fails to prove that its position was substantially justified.”