A massive lands bill was signed by the president recently with little fanfare. Buried in its hundreds of pages however, was a backdoor reform effort for the Equal Access to Justice Act, the favored funding vehicle of litigious environmental groups.
On March 12—exactly a month after it was overwhelmingly passed by the Senate—President Donald Trump signed the John D. Dingell, Jr. Conservation, Management, and Recreation Act (S.47) into law.
The 260-page act largely addresses land use and management issues across dozens of different national parks and other federal lands. However, there are several wider-ranging details in the act. Key among these were new transparency-related requirements for payments made under the EAJA.
Part of the act was titled, “Open Book on Equal Access to Justice.” The section modifies the existing EAJA to create an annual, “publicly available online report on the amount of fees and other expenses awarded during the preceding fiscal year.”
These public reports are to “describe the number, nature, and amount of the awards, the claims involved in the controversy, and any other relevant information that may aid Congress in evaluating the scope and impact of such awards.” The reports are also to include links to the court case documents, names of involved agencies and recipients of the awards, and other legal information.
In the past, recordkeeping related to payouts made by the government under EAJA has been inconsistent with some agencies keeping records and others—most notably the U.S. Fish and Wildlife Service (FWS), which enforces the Endangered Species Act (ESA)—did not keep rigorous records.
After he testified before Congress in the summer of 2018, Dave Eliason, then-president of the Public Lands Council (PLC), described the EAJA as essential to the strategies of environmental groups.
“These groups are using the [ESA] petition backlog to trigger lawsuits. They realize the backlog means it is only a matter of time until the clock runs out for FWS to respond to their petition. When the agency fails to meet the deadline, they litigate,” he explained.
“While the government incurs expense through this process, the Equal Access to Justice Act ensures those litigating the government are not subject to legal fees. This loophole creates an endless cycle of abuse where the government funds the efforts of fringe-environmental groups who have hijacked the system.”
While the passage of S.47 does not accomplish all reforms to EAJA that grazing and public lands resource groups have sought, it does take a step towards increasing transparency.
When the act passed the Senate on a 92-8 vote, PLC Executive Director Ethan Lane called it “good news” and described the bill as advancing “a number of public policy priorities for U.S. ranchers.” — WLJ
