Tuesday, March 20, 2007

Paying for the privilege of being sued

The Missoulian yesterday had a good piece on the way that environmentalist groups are abusing the system by getting to file suit against the Forest Service with a very high level of assurance of having all or part of their legal bills paid by the Forest Service:

As long as we demand legally defensible perfection in land management, we hardly need to be so generous in paying the attorney fees of the people who've created an industry of finding imperfections. It's just not that hard to do under existing laws and regulations.

The ability to recover legal costs makes it easy and - at the risk of sounding cynical here - too tempting to sue over matters that really ought to be decided through public debate.

As it is, the public pays three times. It pays the Forest Service's cost of trying to manage the forests - including the substantial costs of trying to litigation-proof every significant action; it pays the costs of defending those decisions plus the reimbursement of the plaintiff's legal fees; and then it also pays the hard-to-quantify but never insignificant costs of the work not done.

The Missoulian suggests a higher trigger for being able to recover attorney's fees, and that seems quite sensible. What if a governmental agency favored by environmentalists (say, the EPA) were being sued to the extent that it couldn't do its job? And if the groups suing the EPA into inaction were pretty sure to have the EPA pay their legal fees on top of it all, environmentalist groups would be up in arms.

We are all for common-sense laws to keep our air and water clean and our forests healthy. But descending into mere obstructionism using the courts while not having to put anything on the line yourself (such as having to pay at least part the government's legal fees if you lose) is not common-sense.

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