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Inside the Equal Access to Justice Act

Environmental Litigation and the Crippling Battle over America's Lands, Endangered Species, and Critical Habitats

Lowell E. Baier

*Finalist for Foreword INDIES Book of the Year Awards in Ecology and Environment*

In this book, Lowell E. Baier, one of America’s preeminent experts on environmental litigation, chronicles the century-long story of Americas’ resources management, focusing on litigations, citizen suit provisions, and attorneys’ fees. He provides the first book-length comprehensive examination of the little-known Equal Access to Justice Act (EAJA) and its role in environmental litigation. Originally intended to support veterans, the disabled and small business, the EAJA, Baier argues, now paralyzes America’s public land management agencies. Baier introduces readers to the history of EAJA, examines the many beneficiaries of the law, describes in depth 20 of the most prominent litigious environmental groups in America, and recommends carefully tailored amendments to the EAJA to correct environmental abuses of the law while protecting legitimate interests. Inside the Equal Access to Justice Act will be a valuable resource for the environmental legal community, environmentalists, practitioners at all levels of government, and all readers interested in environmental policy and the rise of the administrative state.
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Rowman & Littlefield Publishers
Pages: 678Size: 6 1/2 x 9 1/4
978-1-4422-5744-3 • Hardback • December 2015 • $75.00 • (£49.95)
978-1-4422-5745-0 • eBook • December 2015 • $71.00 • (£47.95)
Lowell E. Baier is an attorney and a legal and environmental historian and author. Baier holds a B.A. from Valparaiso University, a J.D. from Indiana University and has received two honorary doctorates. He’s worked in Washington, D.C. throughout his 50 year career as a tireless advocate for natural resources and wildlife conservation. Throughout his career, he has observed and documented wildlife and its habitats on extensive treks and expeditions in the mountains and wilderness regions across the North American Continent, the Pamirs and Caucasus of Russia, and Mongolia’s Gobi Desert and Altai Mountains, providing him with first hand observations of wildlife and man’s interactions across the globe. He was recognized as the Conservationist of the Year by the National Fish and Wildlife Foundation in 2008, and again in 2010 and 2013 by two different national organizations.
Table of Contents
Title Page
List of Illustrations
Prologue: Environmental Litigation and Its Consequences
Author’s Acknowledgments
Chapter 1: The Growth of Government Regulation in the United States
The New Deal and the Foundation of the Administrative State
The Administrative Procedure Act and Control Over Agencies
Expanding Entitlements
The Great Society: Kennedy and Johnson
The Era of Public Interest Law: Civil Rights, Consumerism and Environmentalism
Environmental Litigation and Broadening the Waiver of Sovereign Immunity
Chapter 2: The Development of the Equal Access to Justice Act
Early EAJA Proposals: Expanding the Public Interest Mandate
Narrowing and Focusing the Legislation: Responding to a Devastating Economic Crisis and Bureaucratic Blitzkrieg
EAJA: The Evolution of a Unique Small Business Bill
The 1980 Presidential Election and the Reagan Revolution
Wisconsin’s 1980 2nd District Congressional Election Campaign: A Microcosm of the Presidential Election
The Voice of the Silent Majority: America’s Small Business Community Resonates Through the Presidential Election Campaign
1980 EAJA Hearings and Chairman Kastenmeier’s Dilemma
The September 3-4, 1980 Mark-Up of EAJA S. 265: Resurrection of a Pariah, the 501(c)(3) Financial Exemption
Paranoia in the Capitol: EAJA’s Enactment Becomes Politically Pragmatic
Chapter 3: Use and Amendment of the Equal Access to Justice Act from 1981 to 1985
EAJA 101: How It Works
Moving EAJA from Temporary Legislation to Permanent Legislation
The Financial Exemption for 501(c)(3) Organizations
President Regan’s Rejection of EAJA’s Reauthorization
Chapter 4: Success and Expansion of the Equal Access to Justice Act After 1985
Expanding EAJA’s Coverage and Reporting EAJA’s Successes
Imitating EAJA
Successful Users of EAJA
Small Businesses
Social Security Beneficiaries
Native Peoples
Exceptions: Cases Where EAJA Does Not Apply
Regulatory Shifts in the 1980’s and 1990’s
Further Amendments to EAJA
Chapter 5: The Universe of the Eco-Crusaders
The Constellation of Environmental Advocates
The First Generation: 1886 – 1936
The Second Generation: 1947 – 1970
The Third Generation: 1970 – 2000
Anthropocentric Versus Biocentric Man, and Deep Ecology
The Secret World of Animal Rights
Chapter 6: Barbarians at the Gate: Saints and Sinners
Profiles of the Third Generation’s Eco-Warriors: 1970 – 2000
Environmental Public Interest Law Firms
Conclusion to a Century of Change
Chapter 7: The Environmental Litigation Crisis
The Endangered Species Act: A License to Sue
The Cost of Endangered Species
Megafauna to Megalitigation: Multidistrict Litigation
The MDL: Courtroom Access for Special Interests
A Temporary Reprieve: How the MDL will Beget More Lawsuits
An Answer to Litigation-Driven Species Management: Cooperative Conservation
Chapter 8: Cooperative Conservation: Preempting Listings and Building Trust
The Future Challenge: An Exercise in Trust
The Dunes Sagebrush Lizard
The Lesser Prairie Chicken
The Greater Sage Grouse
Cooperative Conservation and Greater Sage Grouse
Cooperative Conservation: An Endangered Future?
Chapter 9: Abuses of the Equal Access to Justice Act: Endangered Species and Beyond
Armageddon: Litigating Solely to Delay Federal Agency Action
Of Wolves and Men: Using Litigation to Delay Delisting
EAJA and Endangered Species: Statutory Limitations on Attorneys’ Fees Provisions
501(c)(3)s and the Equal Access to Justice Act: America Foots the Bill
Evading Pierce: The Inflation of EAJA Fees
The Prevalence of Settlements
The Sue and Settle Gambit: A New Phenomenon
Rulemaking by the Courts and Environmentalists
The Cost of EAJA
Chapter 10: Reforming the Equal Access to Justice Act
Recent Scrutiny of EAJA
Congressional Scrutiny of EAJA
Recommendations for Future EAJA Reform
1. Restore reporting provisions
2. Ensure the award of reasonable attorneys’ fees
3. Make judicial intervention mandatory
4. Strengthen eligibility requirements
5. Fees awards under EAJA should be limited to $200,000 in any single case
6. Each prevailing party should be limited to a total of three EAJA awards in any given year
7. Parties should be statutorily barred from collecting multiple EAJA awards for the same work
8. EAJA fees should be reduced in cases where parties utilize staff attorneys rather than outside counsel
9. EAJA fees should be paid from agency budgets, not the Judgment Fund
10. End no-fault litigation: Reverse fee shifting should be available under EAJA
A Time for Action
Epilogue: A New Beginning?
Appendix A: The Equal Access to Justice Act
Appendix A(1): The Equal Access to Justice Act After Passage in 1980
Appendix A(2): The Equal Access to Justice Act After Reauthorization in 1985
Appendix A(3): The Equal Access to Justice Act Today
Appendix B: EAJA Payments by the Department of Veterans Affairs, 2003-2012
Appendix C: EAJA Payments by the Social Security Administration, 2004-2012
Appendix D: Model Bill for Reform of the Equal Access to Justice Act
Appendix E: Acronyms
Author Biography
Historians and other scholars of US environmental politics will find a scrupulously narrated account of the political milieu from which this legislation emerged, along with its evolution over recent decades, in the book’s first four chapters. Assembled from an impressive array of interview notes and archival texts, these accessible chapters detail the original objectives for and later impacts of this important statute…. Baier’s detailed policy history of the EAJA should be of interest to scholarly and lay readers alike.
Environmental History

We have here a book of truth and power. Lowell Baier in his thoughtful and powerful publication shows our history—first of abuse and more recently of our effort to protect this magnificent country and world.
Representative John D. Dingell, (D) Michigan

This masterful work of scholarship flawlessly proves that today’s new paradigm of cooperative conservation and federalism in endangered species conservation is a far more responsible endeavor with measurable results than can ever be achieved by combative saturation litigation and court intervention.
Theodore Roosevelt, IV, Honorary Chair, League of Conservation Voters and Governing Council, The Wilderness Society

Lowell E. Baier's Inside the Equal Access to Justice Act is an important history of how American land conservation battles have played out in courts. All environmentalists should read this well written book. Highly recommended!
Douglas Brinkley, Rice University, author of Rightful Heritage: Franklin D. Roosevelt and the Land of America and Wilderness Warrior: Theodore Roosevelt and the Crusade for America

With more than 1,100 species currently under court-ordered consideration for listing under the Endangered Species Act, Lowell Baier’s powerful research forces all conservationists to question the efficacy of the current system and whether a more scientific and collaborative approach would produce better results for wildlife in the 21st Century.
Collin O'Marra, President and CEO, National Wildlife Federation

Minutely and extraordinarily researched, masterfully written in a voice that rings with authority from a tremendous depth of knowledge, it will transform your view of environmental litigation and its politics and players.
Jack Ward Thomas, Chief Emeritus, U.S. Forest Service

This book is the story of how decades of aggressive environmental litigation have eroded the core missions, expertise and effectiveness of America’s land, wildlife and water management agencies. It poses the serious question of how the public land mass comprising one-third of the United States can be effectively managed in the 21st century, and the consequences the remaining two-thirds will suffer from unchecked litigation.
Representative Cynthia M. Lummis, (R) Wyoming

Lowell Baier has been a lifelong champion for conservation, carrying on the legacy of President Theodore Roosevelt. This book on America’s lands litigation is a must read for all who care about the conservation of our wonderful national crown jewels.
Kenneth L. Salazar, Former Secretary of the Interior and Senator (D) from Colorado

“Baier has produced an intellectual tour de force with the publication of Inside the Equal Access to Justice Act. The focus of this book is the need to reform the Equal Access to Justice Act (EAJA) because of unintended provisions that incentivize and reward environmental litigants for filing suit against federal regulatory and land management agencies, and consequentially hinder proactive cooperative efforts. . . . Baier, a seasoned lawyer, political scientist, historian, and one of America’s leading conservationists, peels back layers of proverbial onion to reconstruct a fascinating story about how this law came into existence and the twist of fate that led to a seemingly minor provision being inserted that eventually opened the floodgates of environmental litigation.”
John F. Organ, Chief, Cooperative Fish and Research Units, U.S. Geological Survey (appearing in Fair Chase Magazine)