A Blow to Public Interest Litigation
A Texas judge's award of attorney fees is a threat to all public interest groups, liberal or conservative.
A couple of weeks ago, a federal district judge in Texas awarded over $6 million in attorneys’ fees against the Sierra Club. Sierra Club had survived motions to dismiss and for summary judgment, only to lose at trial. The court awarded fees on the ground that the suit was frivolous. The combination of rulings — denying summary judgment but then calling a lawsuit frivolous — is virtually unheard of, at least in the absence of perjury by a witness or document tampering. It’s hard to account for this peculiar ruling unless the judge was just cranky due to the summer heat in Waco.
Indeed, there seems to be a logical contradiction here. Denying summary judgment means that the case presents genuine issues. But if so, how can the case be frivolous?
Let me explain. Normally, in the U.S., each side in a lawsuit pays its own lawyer, win or lose. But civil rights laws and environmental laws provide for awards of attorneys fees against the other party. These fee awards are routine when the plaintiff wins. But according to the U …
If you own a car, you’re used to paying a registration fee every two years. It may not be your favorite activity, but you do it. And you recognize that the fees and others like it help offset the cost of making sure vehicles on Maryland's roads are safe, that their polluting emissions are within acceptable limits, and that the people who drive them are licensed to do so.
But, in a report issued last fall (and an op-ed in the Baltimore Sun), CPR President Rena Steinzor and I pointed out that Maryland was not taking that same no-nonsense, even-handed approach to all pollution sources. Instead, state officials have given more than 500 concentrated animal feeding operations (CAFOs) a free ride since state oversight began in 2010, waiving more than $400,000 in legally mandated fees in 2013 alone.
The report also revealed that Maryland …
Today, the National Association of Manufacturers released a report produced by economic consultants Crain and Crain on the "cost of regulations to manufacturers and small businesses."
CPR Senior Analyst James Goodwin responded to the study:
Past Crain & Crain reports on the costs of regulation have been roundly and rightly criticized for unreliable research methods, including basing their studies on opinion polling. Not much has changed about their method in this latest iteration, unfortunately. They still pretend to project actual costs by relying on opinion surveys, and they still refuse to account for the enormous benefits of regulation to the economy and to Americans’ health and well being. This is not surprising considering that National Association of Manufacturers V.P. Ross Eisenberg admits that they have instructed previous consultants to only look at the potential costs of regulations. The only good thing that can be said about …
Today CPR Member Scholar and Indiana University School of Law professor Robert Fischman is testifying today for the House Committee on Natural Resources on potential amendments to the Endangered Species Act.
According to the testimony:
I. THE ENDANGERED SPECIES ACT SHOULD BE A LAST RESORT FOR CONSERVATION, NOT THE PRINCIPAL TOOL.
Though Congress intended the ESA to conserve “the ecosystems upon which” imperiled species depend,1 the act almost exclusively focuses on preventing species from going extinct. By the time species are listed for protection under the ESA, populations are already so depleted that there remains little flexibility for further declines. The famous inflexibility of the Act, to “halt and reverse the trend toward species extinction, whatever the cost,”2 is borne of the emergency situation facing a species when it declines to the very brink of extinction. Isolated fragments of habitat, low genetic diversity, and …
Having thoroughly tarnished their own reputations as well as that of the Small Business Administration’s (SBA) Office of Advocacy, economists W. Mark Crain and Nicole V. Crain are now preparing to make the big leap from thoroughly discredited academics to straight up shills for corporate lobbyists working to undermine public protections. The National Association of Manufacturers (NAM), an industry trade group that vehemently opposes such policies as cleaning up air pollution and improving worker safety, yesterday announced that it will release a report tomorrow, prepared by the Crains, that purports to measure the “annual cost of federal regulations.” That’s essentially what the Crains have been claiming to do for the Office of Advocacy until now, so it’s good news that at least it won’t be taxpayer money that’s footing the bill for their slanted research this time.
Just to review the bidding …
Monday’s Washington Post article on the massive oxygen-depleted areas in the Chesapeake Bay and Gulf of Mexico promised to uncover how “faltering” “pollution curbs” were contributing to the dead zones. Instead, the article focused almost exclusively on the dead zones themselves, providing nothing on the vital, yet stalled, regulatory solutions.
The article mentioned that fertilizer and manure washed from farms helped form the Chesapeake Bay dead zone, which was the eighth largest since record-keeping began. Yet it failed to mention that state and federal efforts to curb pollution from farms have faltered over and over again.
Strong state regulations are critical to curbing agricultural pollution since federal law does not touch the majority of farms. The Post could have mentioned that right now Maryland Gov. O’Malley is struggling to implement a rule that would limit the use of manure as fertilizer before he leaves office …
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