"The ESA has been recognized as one of the most profound moral accomplishments of the human race," Robert Percival, Robert F. Stanton Professor of Law and Director of the Environmental Law Program at UM Carey Law, told the House Committee on Natural Resources during an April 8 hearing on several proposed amendments to the Endangered Species Act (ESA).
The amendments create new publication and disclosure requirements for agencies implementing the ESA and replace its current attorney fee-shifting provision with the more restrictive standard found in the Equal Access to Justice Act (EAJA). Fee-shifting provisions allow courts to assign one party in a lawsuit the responsibility of paying some or all of another party's legal fees.
In objecting to the proposed publication and disclosure amendments, Percival argued that they unnecessarily impose "additional unfunded mandates" on already underfunded agencies which "will only make it more difficult for them" to enforce the ESA.
While proponents of the fee-shifting amendment, including Committee Chairman Doc Hastings, R-Wash., claim it is needed to curb "exorbitant, taxpayer-funded fees," Professor Percival said that the ESA already protects against such awards.
The Supreme Court has prevented "outrageous windfalls to plaintiffs who bring non-meritorious litigation," he noted, by holding, in Ruckelshaus v. Sierra Club, that plaintiffs "have to win some aspect of the lawsuit before [they] can even be eligible to apply for the attorney’s fees."
Moreover, in cases that have merit, "the Endangered Species Act requires that the court determine that the fee is reasonable. So in each of these cases where attorney's fee awards have been made that some are touting as outrageous, you had a member of the independent, neutral, federal judiciary determining, based upon an assessment of the amount of work and skill that went into the litigation, that that fee award was reasonable," Percival argued.
Replacing the attorney fee-shifting provision, he said, would "single out ESA suits" and "subject them to below-market fee caps." This would "make it more difficult for citizens to hold government agencies accountable" and frustrate the intent of the original law.
The lawyers in citizen suits, he noted, "are sometimes the only lawyer [a] species has if it's not adequately being dealt with or being ignored by the agency."
The right to sue one’s government is "one of the aspects of American law that makes our system the envy of the world," Percival observed. Chinese environmentalists, with whom he has worked closely, "would love to be able to" sue their government.