Endangered Species Law & Policy

Over 38 members of the U.S. House of Representatives have introduced the Government Litigation Savings Act (H.R. 1996) to amend provisions of the Equal Access to Justice Act (EAJA) to limit recovery of attorneys’ fees and other expenses in cases brought against federal agencies.

EAJA was passed in 1980 to help individuals, groups or businesses with limited access to financial resources defend themselves against harmful government actions. Under EAJA, plaintiffs who prevail on their claims against the federal government may seek recovery of attorneys’ fees and certain other expenses. See 28 U.S.C. § 2412. The original legislation required annual reports to Congress on the amount and nature of the EAJA payments, but these reporting requirements lapsed in 1995.

Proponents of the legislation contend that, since 1995, special-interest groups, notably environmentalists, have abused the law, and are now the biggest beneficiaries of EAJA payments. According to Rep. Cynthia Lummis (R-WY), one of the bill’s sponsors, [t]his common sense legislation would help restore integrity to EAJA and return the program to the original intent of Congress.

The proposed legislation would impose a $200,000 cap on the amount of fees recoverable in any action, and would increase transparency and reporting requirements. In addition, EAJA currently provides that any prevailing party is eligible to recover attorneys’ fees; the proposed legislation would require such prevailing party to have a direct and personal monetary interest in the civil action. The current limits on net worth would remain in place, while the cap on legal rates would increase from $125 to $175 per hour.

Groups that meet the EAJA eligibility requirements routinely seek to recover fees under EAJA after successfully challenging governmental actions under the Administrative Procedure Act, 5 U.S.C. 706. While the proposed legislation would limit recovery of such fees, many environmental laws, including the Endangered Species Act, the Clean Water Act and the Clean Air Act, have their own citizen suit and attorneys’ fees provisions that authorize citizens to file certain types of actions against the federal government or regulated parties. For example, under the citizen suit provision of the Endangered Species Act, parties who prevail on claims challenging a federal agency’s performance of its listing or critical habitat duties may recover reasonable attorney and expert witness fees. See 16 U.S.C. § 1540(g). 

The funds used for reimbursement under EAJA come out of each agency’s budget, rather than a central fund. Conversely, funds recovered under the citizen suit provisions of environmental laws are paid from the Judgment Fund. Each year, Congress appropriates money for the Judgment Fund to be used to pay monetary judgments and awards, including attorneys’ fees, against the federal government. See 31 U.S.C. 1304. The Government Litigation Savings Act will only affect funds paid from each agency’s budget under EAJA, and will not impact funds paid from the Judgment Fund.