By Marc Rehmann and Sam Hananel, Center for American Progress
Since entering office, the Trump administration has lost the vast majority of legal battles over its policies that harm the environment and public lands. Now, it’s trying to discourage opponents of these policies from filing lawsuits against the government in the first place, as well as increasingly refusing to settle cases even when it has little chance of winning in court.
The U.S. Department of the Interior is the latest agency to adopt this dubious strategy, targeting individuals and environmental groups who use the legal system to hold the government accountable. In 2018, Interior Secretary David Bernhardt issued a secretarial order that makes it tougher for the department’s attorneys to resolve litigation out of court. The purported goal of this order is to slow down the settlement process, make it more transparent, and avoid paying attorney fees to lawyers representing environmental groups. The reality, however, is that most of these lawsuits are filed to force the Interior Department to do its job. These lawsuits accuse the government of not taking action that is required by law to protect the nation’s air, water, and public lands. This new policy will only lead to further delays in it carrying out its duties and drag out costly litigation that the government is likely to lose anyway.
This policy is nothing more than a favor to conservative and business groups such as the American Legislative Exchange Council, the U.S. Chamber of Commerce and the Heritage Foundation. These organizations are more interested in gutting measures that protect public lands and obstructing any efforts by citizens and public interest groups than in enforcing the law.
The Equal Access to Justice Act
In 1980, Congress passed the Equal Access to Justice Act (EAJA) to enable individuals, small businesses, and public interest groups to recover the costs of defending their rights in court. Upon signing the bipartisan measure into law, then-President Jimmy Carter said that “this legislation strikes a fair balance between the Government’s obligation to enforce the law and the need to encourage business people with limited resources to resist unreasonable Government conduct.”
For the past four decades, the EAJA has allowed the average American to get the government to do its job. Thanks to the EAJA, if a federal agency loses or settles a case, the government is required to pay its opponents’ legal fees, making it feasible for them to challenge the government. From regulating pollution to protecting public lands, many of the suits are filed to enforce deadlines for action set under the Clean Air Act, the Clean Water Act, and the Endangered Species Act. Lawsuits are often the only way to force agencies, such as the U.S. Environmental Protection Agency (EPA) and the Interior Department, to take action that Congress requires. Interior Secretary Bernhardt’s order will ultimately delay plaintiffs getting reimbursed under the EAJA. The order discourages settling cases in favor of dragging out litigation in court for months or years until a ruling takes place. This will only increase the amount of legal fees that the government has to pay.
Lawsuits that force government agencies to do their job have led to positive results. In 2004, fishing groups in California were finally able to obtain reliable irrigation water in hopes of restoring their once-thriving salmon fishery industry, and tribal members in 2018 in New Mexico were able to delay oil and gas development that could destroy their cultural resources and pollute their drinking water sources. And in a 2012 settled case, conservationists were successful in getting the government to conduct stronger environmental reviews before leasing off federal lands for energy purposes near protected areas such as Idaho’s Morley Nelson Snake River Birds of Prey National Conservation Area and Oregon’s Lower Deschutes Wild and Scenic River. What’s more, the EAJA is an equal opportunity law; it has aided groups on the other side of the conservation debate as well. In 2017, for instance, the Safari Club International—a pro-hunting, conservative group—successfully challenged a U.S. Fish and Wildlife Service decision that prevented its members from importing trophy animals from Zimbabwe. In all four of these examples, the EAJA enabled the plaintiffs to recover the costs of defending their rights through litigation.
The Interior Department’s 2018 policy is a solution in search of a problem
Bernhardt, a former lobbyist for the fossil fuel industry, claims that his 2018 policy is designed to promote transparency. The policy characterizes settling as costly and as a practice that leads to significant policy action without a public process. This is a longtime talking point of businesses and conservative groups attempting to demonize those who sue to enforce federal environmental laws. The policy requires the U.S. Department of Interior’s Office of the Solicitor to create a new webpage that publicly lists the details of all the settlements the Interior Department has reached, as well as provides time for the public to comment on such decisions. While public comments are valuable, in such cases, they could further delay resolutions and affect good faith negotiations.
Furthermore, the webpage offers a skewed picture of the value of settlements and seems to be nothing more than an attempt to prevent Americans from holding their government accountable. The webpage, which went online in 2019, includes an accounting of the attorney fees the Interior Department has paid out in cases that were settled because the government was likely to lose in court. This accounting is supposed to shame environmental groups and show that taxpayers are paying out millions of dollars in legal fees. But a more honest accounting would show how the government saved millions more by avoiding protracted litigation in cases that it was going to lose because government officials were not complying with the law. There is also value in these settlements, as they often create a specific framework and timeline for the government to enforce the law. What’s more, the courts are required to approve final settlements and consent decrees.
There are questions, too, as to whether the webpage offers the complete picture it claims to. Interior Secretary Bernhardt’s order says that 460 settlement agreements were ordered from January 1, 2012, to January 19, 2017, totaling $4.4 billion, but a CAP review of the webpage found only six agreements listed totaling roughly $5.1 million.* Despite spending taxpayer resources and time on the webpage during the past year, the Interior Department has failed to accurately produce what Bernhardt’s secretarial order requires.
Bernhardt’s policy was announced a year after then-EPA Administrator Scott Pruitt issueda similar directive requiring the EPA to avoid settling lawsuits with environmental groups and instead keep litigating them in court. As discussed above, critics of settlements claim that they force agencies to take action outside the normal regulatory process without public input. But a 2016 Virginia Law Review article that examined 79 environmental cases settled during the Obama administration found that 75 were resolved with orders that simply set a timetable to act; they did not require the government to take a specific action. Moreover, settlements enhance public participation by increasing awareness as to how the government is failing to follow the law set in place to protect the public on matters of health and safety.
Interior Secretary Bernhardt appears to be following in former EPA Administrator Pruitt’s footsteps by catering to conservatives who don’t want citizens and public interest groups to act as an effective government watchdog. Congress shouldn’t be swayed by Bernhardt’s false narrative and should uphold the EAJA—a key law that continues to demonstrate its many benefits, which include empowering Americans to get the government to do the job that the law requires it to do.
* The data in this paragraph are on file with the authors.