Statement of Jonathan D. Brightbill, Deputy Assistant Attorney General, Environment and Natural Resources Division, Before the House Oversight and Government Reform Subcommittee on the Interior, Energy, and Environment

Remarks as Prepared for Delivery

Chairman Gianforte, Ranking Member Plaskett, and Members of the Subcommittee, thank you for the opportunity to discuss this important topic.  I also would like to recognize and thank Chairman Gowdy and/or Ranking Member Cummings.

I have the great privilege to serve as a Deputy Assistant Attorney General in the Environment and Natural Resources Division in the Department of Justice.  The Division has broad responsibilities:  enforcing the nation’s civil and criminal pollution control laws; representing the United States in matters concerning the stewardship of the nation’s environment and natural resources, wildlife, and public lands; and litigating cases concerning the resources and rights of Indian tribes and their members. 

I personally supervise a stellar team of lawyers and other staff responsible for defending rulemakings and policies arising under a broad range of pollution control statutes and for acquiring property on behalf of the federal government.    

The Division routinely handles attorney’s fee claims.  Congress has authorized private-party litigation against federal agencies and has generally established two avenues by which opposing parties may seek the payment of attorney’s fees through taxpayer dollars in our cases. 

First, the citizen suit and judicial review provisions in most environmental protection and some natural resources laws expressly provide for recovery of attorney’s fees against the United States. 

Second, attorney’s fees may be payable under the Equal Access to Justice Act (known as “EAJA”) when not available under these statutes. 

Under the leadership of Attorney General Sessions, ENRD is strongly committed to the rule of law and takes seriously the solemn obligation to protect taxpayer dollars.  We closely scrutinize all demands for attorney’s fees to ensure that they are lawful, justified, and reasonable. 

The Division does not, however, and cannot, challenge the payment of attorney’s fees in all cases.  Some fee applications may be substantially justified and reasonable.  But where it is appropriate to contest a claim of fees, my written statement chronicles some of our recent efforts in controlling their costs.   

I would like to highlight five recurrent challenges the Division faces in handling attorney’s fee claims.  Each is discussed in more detail in my written statement. 

In some areas, it seems fee litigation and recoveries may have moved beyond Congress’s original intentions for providing reasonable access to the courts, without encouraging excessive litigation and enriching lawyers.  Federal courts also are not consistent in their standards for awarding fees across the country. 

(1) First, ineffective limits on hourly fee rates.  Because most attorney-fee provisions do not contain a maximum hourly rate, we frequently see lawyers seek taxpayer-funded fee payments with exorbitant hourly rates.  While EAJA does contain a presumptive cap on attorney’s fee payments of $125 per hour (plus inflation adjustment), it is subject to enhancement based on special factors. 

In our experience, courts routinely award EAJA fees at more than $500 per hour to as high as $700 per hour.

(2) Second, no case cap.  Most statutes under which ENRD litigates do not contain a maximum amount of fees the United States will subsidize on a matter.  The Division has paid a number of multi-million dollar attorney fee awards in the past ten years.

(3) Third, low eligibility requirements.  Under EAJA, large tax-exempt organizations with net worth exceeding $200 million can be eligible for—and have received—taxpayer-funded fees.  And there are no qualification requirements at all under the environmental protection and natural resource statutes noted in my written statement.   

As the D.C. Circuit has recognized, “Congress did not intend to subsidize the purchase of legal services by large entities easily able to afford legal services.”  Yet many organizations are funded by outside contributions, and don’t require taxpayer subsidies.

(4) Fourth, fees on fees.  Because parties can recover attorney’s fees for seeking payment of attorney’s fees, there is incentive for parties to claim exorbitant fees and then litigate the issue.  In deciding whether to challenge a claim for attorney’s fees, the Division must weigh the cost and risk of the prospect of “fees on fees” if it is not entirely successful opposing.

(5) Fifth, inconsistent burden of proof.  The United States is frequently successful defending litigation.  However, courts have inconsistently interpreted the facially-neutral language of attorney’s fee provisions to more-readily permit attorney’s fee payments to prevailing plaintiffs than the United States.

Addressing these challenges would enhance the consistency, predictability, transparency, and efficiency of fee awards under the environmental statutes.

I would be happy to answer your questions concerning these challenges.  

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Author: September 27, 2018