Inside the Equal Access to Justice Act

Lowell E. Baier, one of America’s preeminent experts on environmental litigation, chronicles the century-long story of Americas’ resources management, focusing on litigations, citizen suit provisions, and attorneys’ fees. Inside the Equal Access to Justice Act will be a valuable resource for the environmental legal community, environmentalists, practitioners at all levels of government, and all readers interested in environmental policy and the rise of the administrative state.

Lowell E. Baier

Table of Contents Title Page List of Illustrations Prologue: Environmental Litigation and Its Consequences Author's Acknowledgments Chapter 1: The Growth of Government Regulation in the United States The New Deal and the Foundation of the Administrative State The Administrative Procedure Act and Control Over Agencies Expanding Entitlements The Great Society: Kennedy and Johnson The Era of Public Interest Law: Civil Rights, Consumerism and Environmentalism Environmental Litigation and Broadening the Waiver of Sovereign Immunity Chapter 2: The Development of the Equal Access to Justice Act Early EAJA Proposals: Expanding the Public Interest Mandate Narrowing and Focusing the Legislation: Responding to a Devastating Economic Crisis and Bureaucratic Blitzkrieg EAJA: The Evolution of a Unique Small Business Bill The 1980 Presidential Election and the Reagan Revolution Wisconsin's 1980 2nd District Congressional Election Campaign: A Microcosm of the Presidential Election The Voice of the Silent Majority: America's Small Business Community Resonates Through the Presidential Election Campaign 1980 EAJA Hearings and Chairman Kastenmeier's Dilemma The September 3-4, 1980 Mark-Up of EAJA S. 265: Resurrection of a Pariah, the 501(c)(3) Financial Exemption Paranoia in the Capitol: EAJA's Enactment Becomes Politically Pragmatic Chapter 3: Use and Amendment of the Equal Access to Justice Act from 1981 to 1985 EAJA 101: How It Works Moving EAJA from Temporary Legislation to Permanent Legislation The Financial Exemption for 501(c)(3) Organizations President Regan's Rejection of EAJA's Reauthorization Chapter 4: Success and Expansion of the Equal Access to Justice Act After 1985 Expanding EAJA's Coverage and Reporting EAJA's Successes Imitating EAJA Successful Users of EAJA Small Businesses Veterans Social Security Beneficiaries Native Peoples Immigrants Exceptions: Cases Where EAJA Does Not Apply Regulatory Shifts in the 1980's and 1990's Further Amendments to EAJA Chapter 5: The Universe of the Eco-Crusaders The Constellation of Environmental Advocates The First Generation: 1886 - 1936 The Second Generation: 1947 - 1970 The Third Generation: 1970 - 2000 Anthropocentric Versus Biocentric Man, and Deep Ecology The Secret World of Animal Rights Chapter 6: Barbarians at the Gate: Saints and Sinners Profiles of the Third Generation's Eco-Warriors: 1970 - 2000 Environmental Public Interest Law Firms Conclusion to a Century of Change Chapter 7: The Environmental Litigation Crisis The Endangered Species Act: A License to Sue The Cost of Endangered Species Megafauna to Megalitigation: Multidistrict Litigation The MDL: Courtroom Access for Special Interests A Temporary Reprieve: How the MDL will Beget More Lawsuits An Answer to Litigation-Driven Species Management: Cooperative Conservation Chapter 8: Cooperative Conservation: Preempting Listings and Building Trust The Future Challenge: An Exercise in Trust The Dunes Sagebrush Lizard The Lesser Prairie Chicken The Greater Sage Grouse Cooperative Conservation and Greater Sage Grouse Cooperative Conservation: An Endangered Future? Chapter 9: Abuses of the Equal Access to Justice Act: Endangered Species and Beyond Armageddon: Litigating Solely to Delay Federal Agency Action Of Wolves and Men: Using Litigation to Delay Delisting EAJA and Endangered Species: Statutory Limitations on Attorneys' Fees Provisions 501(c)(3)s and the Equal Access to Justice Act: America Foots the Bill Evading Pierce: The Inflation of EAJA Fees The Prevalence of Settlements The Sue and Settle Gambit: A New Phenomenon Rulemaking by the Courts and Environmentalists The Cost of EAJA Chapter 10: Reforming the Equal Access to Justice Act Recent Scrutiny of EAJA Congressional Scrutiny of EAJA Recommendations for Future EAJA Reform 1. Restore reporting provisions 2. Ensure the award of reasonable attorneys' fees 3. Make judicial intervention mandatory 4. Strengthen eligibility requirements 5. Fees awards under EAJA should be limited to $200,000 in any single case 6. Each prevailing party should be limited to a total of three EAJA awards in any given year 7. Parties should be statutorily barred from collecting multiple EAJA awards for the same work 8. EAJA fees should be reduced in cases where parties utilize staff attorneys rather than outside counsel 9. EAJA fees should be paid from agency budgets, not the Judgment Fund 10. End no-fault litigation: Reverse fee shifting should be available under EAJA A Time for Action Epilogue: A New Beginning? Bibliography Appendix A: The Equal Access to Justice Act Appendix A(1): The Equal Access to Justice Act After Passage in 1980 Appendix A(2): The Equal Access to Justice Act After Reauthorization in 1985 Appendix A(3): The Equal Access to Justice Act Today Appendix B: EAJA Payments by the Department of Veterans Affairs, 2003-2012 Appendix C: EAJA Payments by the Social Security Administration, 2004-2012 Appendix D: Model Bill for Reform of the Equal Access to Justice Act Appendix E: Acronyms Bibliography Author Biography