Cynthia Lummis

WASHINGTON, D.C. , Oct 11, 2011 -

The House Subcommittee on Courts, Commercial and Administrative Law today will review a bill from Rep. Cynthia Lummis (R-Wyo.) to limit payments to attorneys of groups that sue the federal government.

Under the 1980 Equal Access to Justice Act, citizens and small groups are entitled to reimbursements for attorney fees when they prevail in cases under statutes that do not specifically call for such fees to be paid by the government. The payments come out of the U.S. Treasury's "judgment fund."

Lummis' bill seeks to limit payments to environmental groups that Republicans argue have gamed the system to restrict access to public lands and impede economic development.

"The repeated manipulation of this well-meaning law has two aims: to grind the work of land management and other federal agencies to a halt; and do so on the taxpayer's dime," Lummis said last week in a statement.

The bill was endorsed by the Public Lands Council and the National Cattlemen's Beef Association, a trade group for public lands ranchers.

Environmental groups said the claim is baseless and argued the law is a crucial tool for citizens and nonprofits to challenge the government when it fails to follow its own laws.

"Blocking citizen access to the courts to hold government accountable to the law will allow rich and powerful industries to have their way," said Patti Goldmen, vice president of litigation for Earthjustice. "It should come as no surprise that certain politicians deep in industry's debt would press for a bill to deprive average people a seat at the table."

The debate intensified last month with the release of a Government Accountability Office report that examined lawsuits filed against U.S. EPA and found "no discernible trend" over the past 16 years (Greenwire, Sept. 7).

The study, which fueled accusations from both sides, found that private companies and trade associations accounted for nearly half of all lawsuits filed against EPA between 1995 and 2010, but that local and national environmental groups collected the most attorney fees.

Brian Wolfman, a visiting professor and co-director of the Institute for Public Representation at Georgetown University Law Center, said the Lummis bill has little to do with saving the government money. It would instead prevent specific lawsuits that ensure the government enforces its own laws -- precisely what EAJA was designed to facilitate, said Wolfman, who is scheduled to testify today.

In addition, EAJA requires a higher burden of proof than some 160 other federal "fee shifting" statutes -- those that require the losing litigant pay the victor's attorney fees, he said. In other words, attorney fees can more easily be collected under existing clean air, civil rights or debt collection statutes than under EAJA, where payments are exempt if a federal agency can prove its action was "reasonable," Wolfman said.

"You can't bring a frivolous case and get attorney fees," he said. "In fact, you can't even necessarily bring a winning case and get attorney fees."

That has some veterans groups worried that the legislation would unintentionally make it more difficult for them to find pro-bono attorneys to argue cases involving disabilities or Social Security, he said.

Lummis' bill would restrict EAJA reimbursements for each entity to no more than three in a calendar year and would prevent payments to any group that has a net worth of more than $7 million. The maximum payment for each case would be $200,000.

Those seeking EAJA payments would also have to show they have a "direct and monetary interest" in the outcome of the case.

The bill would require the Administrative Conference of the United States to consolidate reports from all the relevant government agencies that make EAJA payments and set up a searchable online database. Each agency would be required to explain the reasons for each payment.

While the bill has at least one Democratic co-sponsor in the House -- among more than 50 co-sponsors -- it has not yet attracted bipartisan support in the Senate, where a companion measure was introduced by Sen. John Barrasso (R-Wyo.).

Lummis successfully attached an amendment to a scrapped House funding bill in February that would have imposed a six-month freeze on payments to individuals and groups that seek compensation under EAJA (E&E Daily, Feb. 18).

Schedule: The hearing is today at 3:30 p.m. in 2141 Rayburn.

Witnesses: Jeffrey Axelrad, George Washington University Law School; Lowell Baier, president emeritus, Boone and Crockett Club; Jennifer Ellis, chairman, Western Legacy Alliance; and Brian Wolfman, Georgetown University Law Center.