[House Report 113-540]
[From the U.S. Government Publishing Office]
113th Congress Rept. 113-540
HOUSE OF REPRESENTATIVES
2d Session Part 1
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ENDANGERED SPECIES LITIGATION REASONABLENESS ACT
_______
July 17, 2014.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Hastings of Washington, from the Committee on Natural Resources,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 4318]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 4318) to amend the Endangered Species Act of
1973 to conform citizen suits under that Act with other
existing law, and for other purposes, having considered the
same, report favorably thereon without amendment and recommend
that the bill do pass.
Purpose of the Bill
The purpose of H.R. 4318 is to amend the Endangered Species
Act of 1973 to conform citizen suits under that Act with other
existing law.
Background and Need for Legislation
H.R. 4318 is intended to standardize the awarding of
attorneys' fees to prevailing parties against the federal
government, in effect reducing the excessive amount of
taxpayer-financed payouts in Endangered Species Act lawsuits.
Under current law, section 2412 of Title 28 of the U.S.
Code (the Equal Access to Justice Act or EAJA) limits awards of
attorneys' fees to parties that prevail on the merits in
lawsuits against the federal government, and provides that
``attorney fees shall not be awarded in excess of $125 per hour
unless the court determines that an increase in the cost of
living or a special factor, such as the limited availability of
qualified attorneys for the proceedings involved, justifies a
higher fee.''
While the $125 per hour EAJA cap is not an insignificant
hourly rate for American taxpayers to reimburse successful
litigants against the federal government, no similar hourly cap
current exists for attorneys' fees awarded under the Endangered
Species Act (ESA), which are distributed from the federal
government's Judgment Fund. In addition, there is no current
requirement that parties suing the federal government under the
ESA must ``prevail'' to be awarded attorneys' fees. It is
reasonable, therefore, for successful ESA litigants to abide by
the same rules.
H.R. 4318 applies EAJA's $125 per hour cap on attorneys'
fees awarded to individuals and groups suing the federal
government under the ESA and requires that the party prevail in
the case.
The Committee on Natural Resources has received numerous
examples of attorneys under the current ESA's citizen suit
provision arguing for and being awarded by federal courts
upwards of $400, $500, and even $700 or more per hour in
taxpayer-funded fees.
For example, in 2012, Mr. Daniel J. Rohlf, a Lewis and
Clark College law professor who also represented Southwest
Center for Biological Diversity in a lawsuit involving the
construction of a San Diego elementary school due to the
existence of a two-inch fairy shrimp, argued that the
``prevailing San Diego market rate'' for his attorneys fees
were reasonable, including his special expertise in challenging
ESA habitat conservation plans, vernal pools, and his
efficiency in preparing and reviewing legal documents for the
case. In the final six years of the litigation, he charged over
$400 per hour, including $450 per hour in the years in which
the school district was blocked from moving forward with
construction of the school. He and two other attorneys were
awarded over $650,000 in federal funds, with his fees totaling
over $150,000.
In another example, in March 2012, the National Marine
Fisheries Service and the Bonneville Power Administration were
involved in a settlement for the payment of attorneys' fees
associated with litigation on biological opinions for operation
of several Northwest federal hydroelectric dams that the
plaintiffs claimed jeopardized listed salmon. The settlements
included payment of $940,000 in legal fees to the plaintiffs
for litigation between 2000 and 2004 and an agreement to pay an
additional $950,000 in legal fees to the plaintiffs for
litigation between 2004 and 2008. The plaintiffs were paid an
hourly rate of $200 to $350 per hour and interns on the case
were paid $100 per hour. Recently, three of same attorneys
representing these groups filed a third application for
attorneys' fees at rates of $500, $475, and $400 per hour for a
total of $535,000 for their time between 2010 and 2012. This
would amount to a total of more than $2.4 million in taxpayer-
funded fees at rates that have more than doubled in just a few
years' time.
Also in 2012, EarthJustice, a plaintiff with several other
groups in a lawsuit challenging the Department of the
Interior's decision to delist the gray wolf, sought over
$630,000 in attorneys' fees at the rate of over $300 per hour
for the principal attorney.
This bill would not eliminate the ability of aggrieved
parties to sue or recover attorneys' fees under the citizen
suit provision of ESA. However, instead of continuing the law
that incentivizes litigious attorneys to argue in court for
inflated, ``market'' rates at the taxpayers' expense, it would
allow federal agencies to better prioritize resources that
could go to more productive efforts, such as actual on-the-
ground conservation efforts for species.
Committee Action
H.R. 4318 was introduced on March 27, 2014, by Congressman
Bill Huizenga (R-MI). The bill was referred to the Committee on
Natural Resources and in addition to the Committee on the
Judiciary. On April 8, 2014, the Committee on Natural Resources
held a hearing on the bill and on April 30, 2014, the Committee
met to consider the bill. Congressman Jared Huffman (D-CA)
offered an amendment designated .001 to the bill; the amendment
was ruled out of order. No further amendments were offered, and
the bill was then adopted and ordered favorably reported to the
House of Representatives by a bipartisan roll call vote of 27
to 15, as follows:
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(1) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(2)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974. Under clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives and section
403 of the Congressional Budget Act of 1974, the Committee has
received the following cost estimate for this bill from the
Director of the Congressional Budget Office:
H.R. 4318--Endangered Species Litigation Reasonableness Act
CBO estimates that implementing H.R. 4318 would have no
significant effect on the federal budget. Enacting the bill
would reduce direct spending on attorneys' fees over the 2015-
2024 period; therefore, pay-as-you-go procedures apply.
However, we estimate that any such effects would be negligible.
Enacting the bill would not affect revenues.
Under current law, courts can require the U.S. Treasury to
pay reasonable attorneys' fees to plaintiffs who prevail
against the federal government in cases brought under the
Endangered Species Act (ESA). Under the bill, courts would
determine the amount of fees to award using guidelines
established under the Equal Access to Justice Act (EAJA), which
cap attorneys' fees at $125 per hour but allow for adjustments
for cost of living and special factors, such as the limited
availability of qualified attorneys for certain cases. Based on
historical information regarding the amounts of attorneys' fees
paid to plaintiffs under the ESA and EAJA, CBO expects that
amounts awarded to attorneys under the bill would be similar to
amounts awarded under current law, and we estimate that
enacting the bill would have no significant effect on the
federal budget.
H.R. 4318 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contacts for this estimate fare Jeff LaFave
and Daniel Austin. The estimate was approved by Theresa Gullo,
Deputy Assistant Director for Budget Analysis.
2. Section 308(a) of Congressional Budget Act. As required
by clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives and section 308(a) of the Congressional Budget
Act of 1974, this bill does not contain any new budget
authority, spending authority, credit authority, or an increase
or decrease in revenues or tax expenditures. CBO estimates that
implementing H.R. 4318 would have no significant effect on the
federal budget.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to amend the Endangered Species Act
of 1973 to conform citizen suits under that Act with other
existing law.
Earmark Statement
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Compliance With H. Res. 5
Directed Rule Making. The Chairman does not believe that
this bill directs any executive branch official to conduct any
specific rule-making proceedings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
ENDANGERED SPECIES ACT OF 1973
* * * * * * *
penalties and enforcement
Sec. 11. (a) * * *
* * * * * * *
(g) Citizen Suits.--(1) * * *
* * * * * * *
(4) The court, in issuing any final order in any suit brought
pursuant to paragraph (1) of this subsection, may award costs
of litigation (including reasonable attorney and expert witness
fees) [to any party, whenever the court determines such award
is appropriate.] to any prevailing party in accordance with
section 2412 of title 28, United States Code.
* * * * * * *
DISSENTING VIEWS
H.R. 4318: Endangered Species Litigation Reasonableness Act
H.R. 4318 would undermine the citizen suit provisions of
the Endangered Species Act (ESA) and, similar to the other ESA
bills passed through this Committee by the Majority, would
compromise recovery of endangered or threatened species. H.R.
4318 would render the ESA citizen suit provision, currently
used to ensure enforcement of the law, ineffective by
restricting citizens' ability to recover their true litigation
costs if they prevail in court.
There is a presumption in the United States that each party
bears its own attorneys' fees. For policy reasons, Congress has
reversed this presumption by enacting fee-shifting provisions
that authorize the award of attorneys' fees and costs
``whenever . . . appropriate'' in numerous federal statutes
including the: Toxic Substances Control Act; Surfacing Mining
Control and Reclamation Act; Clean Water Act; Marine
Protection, Research, and Sanctuaries Act; Deepwater Ports Act;
Safe Drinking Water Act; Noise Control Act of 1972; Energy
Reorganization Act of 1974; Energy Policy and Conservation Act;
Solid Water Disposal Act; CERCLA, and the Outer Continental
Shelf Lands Act. Similarly, Congress has done this under the
ESA citizen suit provision to allow a prevailing party,
including industry plaintiffs, to recover reasonable attorney's
fees and costs. In addition, the Republican-led Congress has
passed legislation this year that would allow for the recovery
of ``reasonable attorney's fees and costs'' for litigants
challenging the federal government under H.R. 1944, the
``Private Property Rights Protection Act of 2014.''
It is appropriate to expect each party to pay their own
attorney's fees in cases where successful; plaintiffs stand to
recover damages or win their share of a monetary settlement.
However, ESA plaintiffs stand to win nothing personally. That
is why Congress has determined that for the ESA and other
similar laws, the courts should have the flexibility to make a
case-by-case determination regarding a fee award that will make
a plaintiff whole. Clearly the Majority agrees with this based
on their support of H.R. 1944. Unfortunately, H.R. 4318 would
change this common-sense, market-based, recovery fee provision,
but only for the ESA.
Instead, H.R. 4318 would require an Equal Access to Justice
Act fee-shifting regime, a more restrictive attorney's fee
recovery law that is typically considered a safety-net for fee
recovery when the primary statute does not have a citizen suit
provision like the one found in the ESA.
The bill further complicates matters by making it unclear
whether it would require the agencies to pay fee awards to
prevailing parties from their own agency appropriations, a
opposed to the Equal Access to Judgment Fund. Under current
law, fees are paid from either appropriated funds or the
Judgment fund, depending on the circumstances of the case. If,
however, agencies would now be required to pay all fees from
their appropriated funds as the supporters of the bill seem to
imply, this would certainly divert agency resources and detract
from the agencies' core mission of recovering species. For all
of these reasons, we strongly oppose the bill as reported.
Peter DeFazio,
Ranking Member, Committee on
Natural Resources.
Raul M. Grijalva.
Grace F. Napolitano.
Gregorio Kilili Camacho Sablan.
Eni F.H. Faleomavaega.
Rush Holt.
Jared Huffman.
Alan S. Lowenthal.
Katherine M. Clark.
Matt Cartwright.