How Washington pays Big Green to sue the government

Ron Arnold

Two insistent senators have found that even the Government Accountability Office can’t get at all of the millions of federal tax dollars that Big Green lawyers are paid to sue the American government.

Multiple federal laws allow individual citizens to sue certain agencies for failing to enforce the law. 

The U.S. Environmental Protection Agency is not only a favorite target of such 

suits, it has practically become a partner with Big Green in “sweetheart” deals prearranged to expand agency power by settling legal challenges brought by the outside groups — allegations of inadequate air pollution controls, for example — that courts wouldn’t likely approve, but then become case law in closed-door settlements that are never made public.

Outraged at the endless stonewalling by EPA officials that they had grilled in hearing after hearing, the top Republican members of the Senate Environment and Public Works Committee — Sen. Jim Inhofe, R-Okla., and Sen. David Vitter, R-La., — requested that the GAO audit all the money flowing from the U.S. Treasury into the pockets of environmental lawyers during the last 15 years, 1995 to 2010.

The Washington Examiner obtained a copy of the resulting GAO report, “Environmental Litigation: Cases against EPA and Associated Costs over Time,” which the senators [was released August 30]. The most significant thing about the 55-page report is what it doesn’t tell us.

GAO REPORT 8/1/2011-ENVIRONMENTAL LITIGATION-Cases Against EPA and Associated Costs 1995-2010

The report devotes more than a dozen busy pages to tables of payments. But it doesn’t highlight the fact that just one plaintiff, Earthjustice (with 2010 assets of $39.2 million, according to its latest available Internal Revenue Service Form 990), received 32 percent of all attorneys’ fees paid to EPA litigants. That’s $4.6 million for one group’s legal fees.

Nor does it highlight that the Natural Resources Defense Council (2010 assets of $232.3 million) and the Sierra Club (2010 assets of $67 million) combined to take 41 percent of all the attorneys’ fees in EPA lawsuits.

Throw in the 43 other Big Green plaintiffs — including such multimillion-dollar operations as the Center for Biological Diversity and National Wildlife Federation — and they gobbled up 82 percent of the payoff pie, leaving 7 percent awarded to industries such as Western Fuels Association, and 5 percent for state agencies.

These percentages are not in the GAO report, which is long on tables and short on analysis. Inhofe and Vitter assigned their staffs to dig out these connections.

Even though this GAO study is the first time the federal government has released such information, the report is disturbingly short on data, covering the defect with detail. The GAO is careful to explain that when the EPA becomes a defendant in a lawsuit, the Department of Justice provides EPA’s legal defense.

There are, according to the report, an average of about 155 such cases each year, or a total of about 2,500 cases between 1995 and 2010.

But in the very next sentence, the GAO tells us that the Justice Department spent at least $43 million, or $3.3 million annually, to defend EPA in court during 1998 through 2010. Nobody asked about 1998.

It gets worse: “Treasury paid about $14.2 million from 2003 through 2010 — about $1.8 million per year to plaintiffs in environmental cases, paid from the Department of the Treasury’s Judgment Fund.”

Eager lawyers won’t notice that 2003 time shrinkage because they will focus on “the Treasury’s Judgment Fund” — a permanent indefinite appropriation available to pay judgments against the government, as well as settlements resulting from lawsuits.

That phrase is so riveting because it contains records of critical Big Green money secrets, and the U.S. Treasury Department does not publish its Judgment Fund payment data. The revelations here are significant, even if truncated.

Then GAO drops its bomb: “EPA paid approximately $1.4 million from 2006 through 2010 from its own appropriations — about $280,000 per year.” That’s only four years of records.

The GAO is telling Inhofe and Vitter that they spent the last year — since June 2010 — failing to find three years of Justice Department legal payouts, eight years of Treasury Department Judgment Fund payouts and 11 years of EPA appropriation payouts.

They simply can’t find it. Why this lack of transparency and accountability? Aside from poor record keeping and the usual uncooperative bureaucratic turf jealousies, the agency databanks are incomplete, decentralized, aging and incompatibly formatted. That’s the real message of this audit.

Still, the flawed but indispensable GAO Environmental Litigation report is a warning. It shows that our nation is seriously deficient in keeping track of the money it spends on Big Green, which resonates with our larger budget crisis.

The Environmental Litigation report covers only the EPA, not federal lands, energy, fisheries, or anything else. There is a whole vast federal bureaucracy yet to deal with.

Sens. Inhofe and Vitter have shown the way. Let the audits begin.

Ron Arnold is an author and columnist who is executive vice president of the Center for the Defense of Free Enterprise. Follow Ron on Twitter at @Ron_Arnold

H/T Conservative Action Alert