Op-Ed: Transparency Blacked Out -- Time To Get The Truth

Op-Ed

Our nation's governing document grants every American the right to petition their government for a redress of grievances. Over the course of our history, we have gone to great lengths to ensure that every person has the same access to that right regardless of race, creed or class. In fact, the law dictates that citizens should be reimbursed for their legal expenses should they sue the federal government and win. No American should have to risk their livelihood or savings in order to seek justice. That is why, in 1980, Congress passed the Equal Access to Justice Act (EAJA).

This law was intended to help individuals and groups with limited means seek judicial redress against the federal government. It allows plaintiffs who sue the federal government to recover their attorney's fees and costs if they are found to "prevail" in the case. In fact, the law stipulates that plaintiffs need not win in court to be eligible for EAJA payments -- a settlement out of court is sufficient. Through a permanent appropriation, and without Congressional oversight, EAJA allows prevailing plaintiffs to recover attorney fees and other costs using taxpayer dollars. While this program certainly has its merits, a glaring problem exists.

It has come to my attention that no one is in charge of tracking EAJA payments, and there has been no Congressional oversight of the program for 15 years. It is nearly impossible to know the full scope of taxpayer dollars spent each year, and to whom the money is going. However, two recent studies have shown that environmental groups appear to be the major beneficiaries of EAJA payments.

According to research by a Wyoming law firm, 14 environmental groups have brought over 1200 federal cases in 17 states and the District of Columbia, and have collected over $37 million in taxpayer dollars through EAJA or other similar laws. Those numbers do not include settlements, and fees sealed from public view. An independent study from Virginia Tech University discovered similar findings as a result of a comprehensive Freedom of Information Act request of five Federal agencies. The Virginia Tech study also revealed that two of these agencies could provide absolutely no data on EAJA payments.

The sheer volume of federal cases brought by environmental groups raises questions about possible abuse of the system. Realizing that the cost of suing the federal government could be a strong deterrent to individuals of limited means, Congress intended EAJA to alleviate that concern. It was not intended to fund a cottage industry of deep-pocketed environmental groups and their teams of lawyers repeatedly suing the federal government off the proceeds of earlier EAJA awards.

Furthermore, private citizens who oppose the environmental court filing are forced to intervene at their own expense to argue on behalf of the federal agency, but enjoy no similar reimbursement mechanism. This sets up a significant one-two punch: business owners/ranchers must pay to defend their business, and then through their tax-dollars, pay to reimburse the same environmental lawyers who are trying to put them out of business. The abuse of this system is cause for great concern.

What is the solution? In a word: transparency. There are many ideas on how to reform EAJA to make it more equitable and operate closer to Congressional intent. However, we cannot know how to fix EAJA until we fully understand how it operates, who gets paid, and how much. My bipartisan bill, the "Open EAJA Act of 2010," will accomplish that goal.

The Open EAJA Act would reinstate and consolidate tracking and reporting requirements under the Department of Justice (DoJ), and would require the DoJ to publish an online, searchable database of EAJA payments that is open to the public. It would also authorize an audit of the last 15 years when EAJA operated with absolutely no oversight. My bill will provide for the much-needed transparency and clarity that should be the basis of any federal program -- particularly one where taxpayer dollars are being spent to sue our own government.

Without this bill, millions of taxpayer dollars will continue to flow to environmental lawyers and their sometimes radical agenda with no oversight. It's time to shine some light on the high-jacking of the equal justice law by some groups and the environmental litigation industry that supports their "stop everything" agenda. The Open EAJA Act will help restore taxpayer trust in the system by bringing the Equal Access to Justice Act out of the shadows and into the bright light of transparency.

Source