MEMORANDUM
OPINION EDITORIAL
FROM: KAREN BUDD-FALEN
BUDD-FALEN LAW OFFICES, LLC
DATE: SEPTEMBER 7, 2010
RE: GETTING PAID TO GO AWAY – AND THE TAXPAYER
AND CONSUMER GET TO PAY AGAIN
It is no surprise that there is a big difference between legal requirements, radical
opinion, political power, private extortion . . . and then there is the rest of the story.
With regard to the payment of attorneys’ fees to radical environmental groups, radical
opinion and political power seem to often win and legal requirements are ignored. In
fact, political power supporting radical opinions forced payment of at least $4,697,978
in taxpayer dollars to 14 environmental groups in 19 states and the District of Columbia.
Political power payments for radical opinions happens 21% of the time when attorneys’
fees are paid.
And then there are the cases where these same radical environmental groups are
extorting millions from major corporations and local governments as payment to drop
appeals and protests. For example, recently Western Watersheds Project (“WWP”) and
Oregon Natural Desert Association (“ONDA”) extorted $22 million from El Paso
Corporation to drop their protests of the Ruby Pipeline project. In another case, the
Center for Biological Diversity (“CBD”) extorted almost $1 million from Alameda
County, California to drop its protests to a City’s approval of a residential and
commercial development project. The general theme is that money changes hands,
development moves forward and the taxpayers and consumers get stuck with the bill.
The story goes like this:
Attorney Fees Legal Requirements:
Under the Equal Access to Justice Act (“EAJA”), attorneys are only supposed to
be paid if they represent the prevailing parties in a lawsuit against the federal
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government. According to EAJA, a prevailing party must achieve a court-sanctioned
change in the position of the federal agency through litigation.
Under the Endangered Species Act, Clean Water Act and other fee shifting
statutes whose funds come out of the Judgment Fund, attorneys’ fees are only supposed
to be paid if the attorney achieved some success in the litigation for the plaintiff. Thus,
the plaintiffs had to achieve some benefit from the litigation through the courts.
Radical Opinion:
All too often however, radical environmental groups, WWP for example, sue the
federal government because they claim the government failed to consider the
cumulative impacts of all livestock grazing everywhere in the Western United States on a
species that is not even listed as a threatened or endangered species. NEPA is the
procedural statute that requires impacts of federally permitted decisions be
considered–the Act does not require a particular outcome, just that the government
consider all the impacts of its decision.
Quite frankly, I do not believe that the WWP or other radical groups care at all
about the NEPA process or wildlife because these groups do not spend any of their
money on projects that benefit the land or the animals on it. Rather, the goals of WWP
and others are to eliminate livestock grazing under all circumstances in all locations.
They even claim that cattle contribute to global warming by “belching carbon,” like the
internal gas emissions of livestock are any different from the internal emissions of cats,
dogs or other wildlife. This is not about the environment . . . it is about eliminating land
use and ownership starting with ranchers and moving to other groups once the ranchers
are gone.
Political Power:
The federal government however gets a copy of the WWP suit and instead of
defending its NEPA documentation and decision and protecting the ranchers’ rights to
continue grazing, the government pays WWP our tax dollars just to make the litigation
go away. In 21% of the cases – more than $4.6 million dollars worth – there is no court
decision and no determination that the WWP was “prevailing,” just a request to please
withdraw the litigation and more taxpayer money is paid to radical groups who use their
political power to assert minority radical opinions.
Private Extortion
Getting paid to go away is not just about taking American tax dollars for
attorneys’ fees; now radical environmental groups are directly extorting money from
businesses as well while more costs are passed on to the American consumer. Recently
WWP and ONDA announced that it has extorted $22 million from El Paso Corporation
in exchange for dropping their protests to the federal government’s permits allowing El
Paso to build the 680 mile long natural gas Ruby Pipeline. As part of the deal, El Paso
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did not change the route or any other aspect of the pipeline, it just paid ONDA and
WWP to go away.
In the California case, CBD extorted almost $1 million from Alameda County for
“habitat acquisition” in exchange for dropping its protest to the development of a
residential area. This is just more American taxpayer money going to radical
environmental groups.
And the rest of the story. . . .
And the rest of the story is that the American taxpayers across the country are
paying more money to a minority of radical causes. Even harder to take is that the
ranchers whose cattle grazing were drawn into the WWP litigation because they
happened to graze where WWP wanted them eliminated (everywhere) have to now go
back to the government to assist with preparing more paperwork, the government has to
spend more time writing documents, and there is more pressure to just walk away from
another American small business. And the big corporations and counties who are
paying extortion dollars are just passing their losses along to the American consumers.
It is our dollars that are paying for the destruction. This is not a phenomenon that just
happens to Western ranchers, but “getting paid to go away” occurs when roads are
widened, bridges are built, water supplies are updated, timber is cut, fishermen are out
in their boats, pipelines are built and in all other businesses across this country.
With regard to the attorneys’ fees payments, in more than 21% of its cases, the
federal government does not even defend its decisions; it spent more than $4.6 million
to make cases filed by radical environmental groups go away. There is no way to
measure the additional money that is being directly extorted from businesses and
governments so that radical groups will withdraw appeals and protests. That is a sad
story with a very bad ending.
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