GOP to Environmentalists: Pay for Your Own Lawyers

Republican lawmakers are criticizing courts that reimburse environmental litigants for their legal costs, and the Trump administration is asking them to change the law to make it harder to recover these costs.

Justice Department attorneys are often hamstrung in environmental cases by laws that allow plaintiffs to recover their legal fees from the federal government, Jonathan Brightbill, the deputy assistant attorney general in charge of defending environmental agencies, told a congressional hearing.

Brightbill said lawmakers need to change these laws to reduce the amount of discretion that judges have to award attorneys’ fees to these litigants, many of which are large nonprofits with millions of dollars in annual revenue.

“Congress did not intend to subsidize the purchase of legal services by large organizations,” he told a Sept. 27 House Oversight subcommittee hearing.

‘Shine a Light’

Rep. Greg Gianforte (R-Mont.), the subcommittee’s chairman, told Bloomberg Environment he wants to see the laws around attorneys’ fee recovery narrowed in scope so that they apply mainly to individuals contesting a denial of their Social Security or veterans’ benefits.

As it stands now, however, environmentalists can file lawsuits without fear of financial consequences, and this is delaying many worthy projects, including logging permits in his home state, Gianforte said.

Gianforte wouldn’t say, however, whether he plans to introduce legislation to this effect during the upcoming lame-duck session of Congress after the House returns from its October recess after the Nov. 6 election.

“The goal today was to shine a light,” he said.

‘Close the Door’

Sara Colangelo, a Georgetown University environmental law professor, also said more light needs to be shined on this issue but doesn’t think the solution is to make it harder to recover fees. Rather, she said these fees make it possible for citizens to file lawsuits against the government when it fails to enforce environmental laws.

“This could close the court doors to those whose last recourse is the judicial system,” Colangelo, a Justice Department official during the Obama administration, told the lawmakers.

She said this issue is essentially a solution in search of a problem, given that the attorneys’ fees awarded by the EPA, the Department of the Interior, and others represent a minuscule fraction of their budgets.

Brightbill gave the subcommittee data showing that the government paid environmental plaintiffs $661,000 in attorneys’ fees in the 2017 fiscal year, the first in which President Donald Trump was in office. That’s down from $3.1 million in the prior fiscal year, and $1.1 million for the fiscal year before that.

To contact the reporter on this story: David Schultz in Washington at dschultz@bloombergenvironment.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bloombergenvironment.com