Last fall, Cheyenne, Wyoming, attorney Karen Budd-Falen made an astonishing claim that has reverberated all the way to Washington, D.C. Writing a guest editorial for the Wyoming Livestock Roundup, she said environmental law firms had collected billions in public tax dollars by filing and winning frivolous lawsuits against federal natural resource agencies.
The ruse used by environmental attorneys, she said, was a little-known law called the Equal Access to Justice Act. If Ms. Budd-Falen’s intent was to incite outrage, she succeeded. The only problem—and it’s a huge one— is that her version of the truth doesn’t hold up.
As attorney Tim Preso with the law firm EarthJustice -- one of her targets -- told me, “I suspect Ms. Budd-Falen’s distorted accusations weren’t really about alleged payouts, which have since been refuted. Her agenda is to try and discredit organizations like ours from holding public agencies accountable for enforcing federal laws.”
Accountability is precisely why the Equal Access to Justice Act was put on the books by Congress -- in recognition that government agencies are not only unable to police themselves, but the laws they are expected to enforce are sometimes skirted due to political and corporate interference. The law has been used many times by environmental groups to force the government to protect national parks in accordance with federal environmental laws.
“While Budd-Falen’s numbers in terms of alleged payouts are wildly misleading,” Mr. Preso says, “she also fails to mention that we won major cases not because our evidence was flawed, but federal judges agreed with us on the merits.”
Another fact she didn’t mention: Special-interest clients represented by Ms. Budd-Falen’s law firm and others, such as the nonprofit Mountain States Legal Foundation, also have taken advantage of the same law to successfully sue and collect financial judgments against the same federal agencies.
Subjecting Ms. Budd-Falen’s arithmetic to scrutiny in a fine piece of investigative journalism, reporter Philip White at Wyofile could find no evidence provided by Ms. Budd-Falen or federal court databases to substantiate her claim that billions of tax dollars have been paid to green groups—in fact, not even close.
Still, as one might expect even with the information discredited, it didn’t stop the Western Legacy Alliance (a front for anti-regulation groups), FOX News, bloggers and members of Congress, including U.S. Rep. Cynthia Lummis (R-WY) and Rob Bishop (R-UT), from circulating the data as fact.
Shortly after Ms. Budd-Falen’s numbers were called into question, a report she authored that had been posted at Western Legacy Alliance (which, ironically, features the strictly safeguarded backdrop of Grand Teton National Park on its webpage) was pulled and claims of billions restated downward to millions of dollars collected by public interest environmental law firms over several years.
Are some lawsuits frivolous? Undoubtedly, it is unavoidable in a litigious society. But cases lacking in merit emanate from both sides of the political aisle and, for the most part, such litigation gets tossed out of court with a scolding from savvy judges.
A few months ago, U.S. Rep. Lummis explained the motivation behind her crusading to Wyofile: “I’m simply wanting to shine a light on this expenditure of taxpayer monies.”
It is, of course, noble that Wyoming’s lone member of Congress is worried about how U.S. tax dollars are spent.
On that note, here’s another place for her to look: Billions of tax dollars paid on environmental remediation (i.e. taxpayer-subsidized clean-up of pollution) caused by natural resource companies that either filed bankruptcy or, with little federal oversight, evaded their legal obligation to prevent huge eco-messes, some of which threaten human health.
In the Gulf of Mexico, the British Petroleum oil spill is wreaking havoc for national parks and wildlife refuges. Should American citizens be responsible for helping to finance the clean-up and restoration?
If Rep. Lummis and Ms. Budd-Falen really want to apply ethical scrutiny, there are several fresh examples where political appointees with the Bush administration developed illegal relationships with special interests, such as the cozy going on between the Interior Department’s Minerals Management Service and the energy industry.
While former Interior Secretary Gale Norton wasn’t charged with any crime, she did walk through the revolving door between her public trust duty and allegiance to special interests when she went to work as an attorney for Royal Dutch Shell.
Reportedly, Ms. Norton is involved with oil shale development issues in the Rockies, the very activities she was supposed to be regulating as a presidential cabinet member.
Americans should be happy the Equal Access to Justice Act exists. Up north in Canada and in many Third World countries there is a phenomenon known as SLAPP suits. The acronym stands for “strategic lawsuit against public participation.” They are effectively marshaled by corporations to silence the free speech of citizens trying to watchdog government, including monitoring politicians who can’t tell the difference between personal interest and public interest.