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Debate rages over equal justice law

Published on June 10, 2011 3:01AM

Last changed on July 8, 2011 7:38AM

Mateusz Perkowski

Mateusz Perkowski



Capital Press

When Iowa feedlot owner Lowell Vos faced a serious legal accusation several years ago, he decided to fight back.

In 2007, the U.S. Environmental Protection Agency brought an enforcement action against his company for allegedly violating the Clean Water Act.

Based on computer models of rainfall in the region, the agency claimed that Vos had repeatedly discharged pollutants into a nearby creek without a permit and should pay more than $150,000 for the violation.

Vos defended himself against the charge and won, with an administrative judge ruling in 2009 that EPA had failed to demonstrate that Vos needed a discharge permit.

The case set an important precedent, as the agency no longer relies exclusively on modeling to prove discharge, said Eldon McAfee, an attorney for Vos.

"We felt they needed (water) samples or visual observation," he said. "I don't think they should have relied on computer modeling to start with."

After winning the case, Vos sought to be compensated for about $80,500 in attorney fees as a prevailing party under the Equal Access to Justice Act.

That statute is commonly used to compensate environmental groups for legal costs when they win lawsuits against the federal government.

An administrative appeals board recently held that Vos is not entitled to recoup such costs because the agency was "substantially justified" in bringing the enforcement action against him.

Generally, it's much more common for plaintiffs to recover attorney fees in environmental litigation than it is for defendants, said Gregory Sisk, a law professor who specializes in civil litigation with the federal government at the University of St. Thomas in Minneapolis, Minn.

"It only works in one direction," he said. "It's the way the statutes have been set up."

Congress didn't want people to be afraid of filing environmental and labor lawsuits, so the laws have been designed to avoid "chilling" such litigation, Sisk said.

In other words, environmentalists or employees would likely think twice about filing lawsuits if they could be held financially liable for losing them.

There are exceptions to that general rule -- for example, people who file frivolous lawsuits can be sanctioned by having to pay the defendants' legal costs, he said.

Under the Equal Access to Justice Act, it is possible for people who have been sued by the federal government to recover attorney fees, Sisk said. However, the statute tries not to discourage the federal government from taking enforcement actions.

To get compensated for attorney fees, a defendant must show the government's position was unreasonable or that it sought unreasonable penalties, he said.

"Losing doesn't mean (the federal plaintiffs) weren't justified," Sisk said.

The problem is that the legal standard is highly subjective, said Jennifer Ellis, board chairman of the Western Legacy Alliance, a group that advocates for multiple uses of public land.

"You could write novels on the different ways that judges interpret 'substantially justified,'" she said.

Karen Budd-Falen, an attorney who represents natural resource users, said the "substantially justified" standard itself is sensible.

However, it's exceedingly difficult for natural resource defendants to convince a judge that the federal government was unreasonable -- especially compared to the relative ease with which environmental plaintiffs routinely win judgments and settlements, she said.

"When you look at the (court) dockets, I don't think it's getting enforced," Budd-Falen said.

The amount of money recovered by environmental groups under the Equal Access to Justice Act far outweighs the amount recouped by industry groups and private individuals, Ellis said.

Environmental groups also typically use pro bono law firms that only get paid if they win, whereas industry defendants must pay legal costs whether they prevail or not, she said.

"That playing field is absolutely unequal," Ellis said. "It's biased against industry completely."

Patti Goldman, vice president for litigation for the Earthjustice environmental law firm, said industry groups go to court as plaintiffs, too.

Environmental groups commonly challenged policies and projects enacted under the Bush administration, but that tide is now starting to shift under the Obama administration, she said.

"You have oodles of cases filed by trade groups," Goldman said.

In those cases, industry plaintiffs are held to the same standard as environmental plaintiffs when they try to recover fees, she said.

Goldman said she knows of no empirical evidence that industry groups are less likely to win awards when they prevail.

"Where is the proof of this? I think it's just rhetoric," she said.


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