Budd-Falen noticed a distinct increase in cases filed by environmentalist groups that commonly litigate in the West since the Obama administration came into office. (She) said the upswing was caused by a reduced willingness to put up a fight by the Obama administration.
by Mateusz Perkowski via Capital Press
The number of federal lawsuits filed over environmental issues increased more than 60 percent, to 862, across the U.S. in 2015 compared to the previous year.
While the environmental caseload in federal courts can swing wildly from year to year, that figure is also roughly 8 percent above the average number of complaints filed annually over the past decade.
A broad range of lawsuits can fall under the “environmental matters” category in the federal case filing system, so it’s tough to point to any particular reason for a spike, said Karen Budd-Falen, an natural resources attorney in Cheyenne, Wyo.
This finding may seem counterintuitive, given the environmentalist antagonism toward the Bush administration, but Budd-Falen said the upswing was caused by a reduced willingness to put up a fight by the Obama administration.
“Much of litigation is sue-and-settle,” she said. “They’re more likely to get a favorable settlement with the Obama administration.”
Over the past decade, about 30 percent of the environmental lawsuits in the U.S. were filed within the jurisdiction of the 9th U.S. Circuit Court of Appeals, which covers eight Western states.
To compare, the 10th Circuit covers six Western states but only had an average of 43 environmental lawsuits filed per year over the past decade, or about 5 percent of the national average.
Budd-Falen said environmental groups file a disproportionate number of lawsuits in the 9th Circuit because its legal precedents are seen as more favorable to their cause.
It’s unlikely the amount of such litigation will decrease until Congress changes environmental laws to give greater weight to economic and rural community concerns, she said.
Another possibility would be to make public the amount of money that environmental groups win from the federal government, which may prompt the U.S. Department of Justice to be less generous in its settlements, Budd-Falen said. “It’s all public pressure.”
Federal agencies have recently made several decisions that are likely to spur further controversy in coming years, said Scott Horngren, an attorney who has represented the grazing and timber industries in numerous cases.
For example, the U.S. Fish and Wildlife Service has decided not to list the greater sage grouse as a threatened or endangered species, he said. National forests are also expected to implement management rules based on new federal regulations that guide such plans.
“My guess is that’s going to spawn some lawsuits,” Horngren said.
Nonprofit groups also continue to add new attorneys to their ranks who want to challenge federal decisions in court, he said. “There continues to be an expansion of people coming out of law school who feel litigation is the best tool to advance their environmental views.”
The Center for Biological Diversity, an environmental group that litigates over endangered and threatened species, doesn’t expect the number of such lawsuits to grow in the future, said Amy Atwood, its endangered species legal director.
Past lawsuits over species often focused on the federal government’s failure to make a timely decision on whether they should be protected under the Endangered Species Act, she said.
In 2011, the government struck a settlement that requires it to make ESA listing decisions for 757 species by 2018.
With that deal in place, new lawsuits are likely to focus on the substance of these decisions, but the total number is likely to fall, Atwood said.
“Those cases are not as straightforward. They take more time to litigate,” she said.
While the 2011 settlement has reduced the backlog of ESA listing decisions, the U.S. Fish and Wildlife Service has often capitulated to make life easier for natural resource industries, Atwood said.
For example, the agency listed the lesser prairie chicken and Gunnison sage grouse as threatened when they should have been afforded greater protections as endangered species, she said. “We’re dealing with findings that are actually unlawful.”
Nonprofits are wrongly accused of profiting from such litigation, since they actually spend more on these cases than they can hope to recover, she said.
Atwood also disputed that environmental groups engage in “sue-and-settle,” noting that they’ve engaged in tough negotiations when required to mediate with federal agencies.
“We have big differences with the Obama administration,” she said.
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