Environmental lawsuits cost Americans billions!
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More to think on...
The Center for Biological Diversity has filed 149 cases in the four Federal District Courts in California, all of which have been decided in the last nine years. Of those 149 cases, 25 cases were not available on the computer data base so I do not know the subject matter.
Of the remaining cases, 82 cases dealt with some aspect of the ESA (the vast majority of those cases dealt with the failure to comply with the time deadlines of the ESA for listing and critical habitat designation), 25 cases were NEPA challenges to land use planning related decisions, 2 cases dealt with the Energy Policy Act, 4 were Clean Water Act challenges and 7 were miscellaneous environmental statute challenges.
Of the 149 cases, the federal government stipulated to payment of attorneys fees in 74 cases.
Of those 74 cases, there were no settlement documents available for 15 cases (some of the cases did not have the settlement agreements available on the internet and some cases did not disclose the amount of attorneys fees)—however the court docket sheet did state that attorneys fees and costs were paid.
Of the cases where fees were disclosed, the CDB was awarded over $ 3,600,000 in attorney’s fees and costs.
In addition, the CBD and the federal government have been given additional time to settle attorneys fees and costs in 2 additional cases. Finally, the final total of over $ 3,600,000 does NOT include the $1,693,463 that was awarded to the CBD but which has been appealed to the Ninth Circuit Court of Appeals.
Karen Budd Falen
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April 17, 2010, Jim Eckersley asked:
"How do the environmental groups have standing to sue?"Response by Karen Budd-Falen
Unfortunately the courts have given both the animals themselves and the
environmental groups standing to sue. I am sure the analysis is more than
you wanted to know, but I have attached a short explanation as follows:Many courts have held that environmental groups have standing to sue because
a sufficient “injury” is shown when a member of an environmental group
states that he or she is adversely affected or harmed because he or she can
no longer observe certain animals in an area or is “harmed” by some
aesthetic change to the area by a defendant’s actions. For example, a 10th
Circuit Court of Appeals (governing states of Wyoming, Colorado, Utah, and
New Mexico) case explained how environmental groups have standing to protect
animals and plants when filing lawsuits in the federal courts. In order to
have standing in the federal courts three elements must be established.
Those elements are:(1) An injury in fact. This is established by showing an “invasion of a
legally protected interest.” The courts have held that simple declarations
of alleged harms to “health, recreational, scientific, spiritual,
educational, aesthetic, and other interests” are sufficient to show an
“injury in fact.” Wilderness Society v. Kane, 581 F.3d 1198, 1210-1211 (10th
Cir. 2009).(2) Causation. This is established by showing that the “injury is fairly
traceable to the challenged action of the defendant.” Id. at 1210.(3) Redressability. This is established by showing that “as opposed to
merely speculative, that the injury will be redressed by a favorable
decision.” Id.The courts have held that an environmental group has standing to bring suit
on behalf of its member if its members would have standing to sue. To meet
this standard, all the environmental group has to do is show that one of its
members have repeatedly visited a particular site or area, that a member’s
“health, recreational, scientific, etc.” interests are being affected, and
that the member has imminent plans to visit the site again. This will be
sufficient to demonstrate that its member’s interest is harmed by the
defendant’s conduct at the area or site to have standing. Id.“Aesthetic interests, which include observation and study of endangered
animals, can be framed so as to present” an injury in fact for purposes of
standing. Southwest Center for Biological Diversity, et al. v. Clark, 90
F.Supp.2d 1300, 1308 (D. N.M. 1999).In addition to environmental groups having standing to sue in order to
protect animals, some courts have held that the animals themselves have
standing to sue. The Ninth Circuit has held that Article III of the
Constitution does not prevent an animal from bringing suit any more than it
prevents suits by other artificial persons (e.g., corporations). Cetacean
Community v. Bush, 386 F.3d 1169 (9th Cir. 2004). However, the court found
that Congress had not given the animals standing to sue in their own names
under the Endangered Species Act, the Marine Mammal Protection Act, the
National Environmental Policy Act, or the Administrative Procedure Act. See
id.A Florida District Court has held, without any analysis, that protected
turtles can sue in their own name. See Loggerhead Turtle v. County Council
of Volusia, 896 F. Supp. 1170, 1177 (M.D. Fla. 1995). Likewise, on appeal
in Loggerhead Turtle, the Eleventh Circuit assumed, without any analysis of
the Endangered Species Act, that a protected species could sue. See
Loggerhead Turtle v. County Council of Volusia, 148 F.3d 1231, 1255 (11th
Cir. 1998).Sorry to be so long winded---but the short answer is that the courts are
very open about hearing litigation brought by environmental groups. The
only way I know to change that is to get a change in the federal rules to
tighten the standing requirements.I hope this answers your question.
Karen Budd Falen
Budd Falen Law Offices, L.L.C.
P.O. Box 346
300 East 18th Street
Cheyenne, WY 82001
Phone (307) 632-5105
Permission to post granted to Roni Bell Sylvester by Karen Budd Falen 5/17/10