NCPA - National Center for Policy Analysis


August 7, 2006

In recent years, environmental activists have developed and perfected a very productive tactic of suing the federal government and settling their claims for substantial attorneys' fees and litigation costs, says Douglas T. Nelson, executive vice president and general counsel for CropLife America.

Nowhere has this been more successful than the recent settlement of the Washington Toxics Coalition (WTC) 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 got interesting, says Nelson:

  • 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 $728,142.16.
  • 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.

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 lead readily to judicial abuse and encourage more and more litigation that clogs 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, says Nelson.

Source: Douglas T. Nelson, Washington Times, August 7, 2006.


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