- The Washington Times - Sunday, August 6, 2006

In recent years, the environmental activist community in the U.S. has developed and perfected a very productive tactic of suing the federal government and settling their claims for substantial attorneys’ fees and litigation costs.

Nowhere has this been more successful than the recent settlement of the Washington Toxics Coalition vs. U.S. Environmental Protection Agency. This complaint filed in January 2001 in Washington state charged that EPA had not complied with provisions of the Endangered Species Act by failing to carry out consultations with U.S. Fish and Wildlife and the National Marine Fisheries Services. Such consultations are triggered whenever a federal government entity like the EPA undertakes a “final action.” In this case, the court found EPA had not fully consulted when registering certain pesticides and decided in favor of the plaintiffs.

Then, matters get interesting. After other legal issues were dispensed with, the WTC played their trump card… they filed for an award of the costs of litigation and attorneys’ fees, in the amount of — get this — $728,142.16. As an intervenor in this case, I can attest that our legal fees for this action aren’t anywhere close to this amount. Amazingly, the U.S. Department of Justice agreed to settle with WTC in the amount of $625,602.40, roughly 86 percent of the amount claimed, well above the average award percentage.

The full amount of $625,600 and change was sent by electronic transfer to Earthjustice, an environmental activist group based in Seattle. Obviously, these monies used to settle the claim came from the U.S. Treasury, provided from tax dollars from you and me. Of course, we had no voice in the award decision.

Is this cozy arrangement in which the activists are engaged — suing, settling and recovering costs and fees — in the best interests of our judicial system and ultimately our national budget? Where’s the fairness in the seemingly endless cycle of lawsuits and awards that then fuel the litigation machine for the next lawsuit?

It is especially vexing since in this case no harm of an endangered species was even alleged because of the failure to consult, nor any species “saved” by this result.

Provisions in the Clean Water Act and Endangered Species Act for filing of citizen suits are designed to hold our government’s feet to the fire on issues, and this policy certainly has merit. But exorbitant awards, as seen in the Washington Toxics case, lead readily to judicial abuse and encourage more and more litigation to clog our legal system. We need to apply greater equity in deciding award claims and avoid giving up extra points for a “Hail Mary” pass play.

Douglas T. Nelson is executive vice president and general counsel for CropLife America.

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