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dd931123.txt
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1993-12-24
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--- DEFENDERS of Property Rights ---
A TRUE DAVID TAKES ON THE GREEN GOLIATHS
November 23, 1993 -- Radical environmentalists would have you think of
them as the underdog, daring to challenge the large and powerful
government to save the planet. It is the classic David-versus-Goliath
tale. The environmental David, however, is every bit as large and
fearsome as the government Goliath they claim to be up against.
Furthermore, these giants seem to be rather chummy, not bitter enemies
locked in a battle to the death. Indeed, under the current Clinton/Gore
Administration, the real question is who will protect us from the both
of them.
On October 14th, the Department of Justice and EPA hosted a meeting
with environmental groups. The topic of the meeting was how these
groups could help the government by suing it, and how the government
could help them do it. One environmentalist noted hearing these
overtures before, but "not at this level of interest." Inside EPA
newsletter reported administration sources were interested in using
citizen suits to enforce regulation and implement their agenda. Citizen
suit provisions are included in every major environmental statute,
including the Endangered Species Act, CERCLA (superfund), and the Clean
Water and Clear Air Acts. They enable private citizens to sue to
enforce the requirements of federal law against both private industry
and the government.
Suing the establishment is even easier when the government plays
patsy. The Clinton Administration - like the Carter Administration
before it - is being very supportive of those bringing environmental
citizens lawsuits against it. Clinton has put many of the environmental
activists behind the desks of government agencies like the Environmental
Protection Agency, Department of Interior, and Justice, to name but a
few.
But even though they hold the reins of power, environmentalist
lawsuits still play an integral part in the Clinton/Gore environmental
game plan. Being sued gives the appearance of the government's hand
being forced, rather than having to make a volatile policy decision
subject to scrutiny by Congress. More troublesome, but more typically,
these lawsuits are often settled out of court by the entering of a
consent decree, requiring the government to do certain things as formal
settlement of a lawsuit, the decree is approved and signed by the judge
prior to entry. Once entered, it carries with it the full force of law.
And not only is it fully binding upon both parties and enforceable
through sanctions and fines, but third parties can find their rights
affected by a decree which they did not even participate in
constructing.
Armed with a consent decree, an agency can also march up to
Congress and demand a budget increase in order to comply with the decree
and the increased responsibilities to go with it. In short, government
bureaucrats can increase their authority and their budget, short-cutting
the political process through the strategic filing of lawsuits by their
former colleagues in the environmental movement.
Using the lawsuit as a weapon, environmental groups have been quite
successful in bending government policy to their wishes. And they have
been paid quite handsomely for their efforts. If their complaint is
proven valid, the government has to foot the bill as well as make the
changes demanded in the lawsuit. American taxpayers must pay the costs
of the litigation because a provision is buried within every regulatory
bill concerning citizen's suits, requiring that attorney's fees and
costs be paid at market rates to the prevailing party. Thus, bills for
payment in the range of $250 per hour are tendered to the government.
People envision environmental organizations as a few hippies in
tie-dyed T-shirts and frayed jeans, cranking out petitions on a
mimeograph machine in some cramped office. That is what they would like
you to think. Environmentalism, in reality, is big business. Groups
often own their own buildings, and their leaders wear tailored suits and
rake in salaries on par with captains of industry. But they still
insist on representing themselves as the "little guy". . . with their
own legal staff.
Like so many other environmental groups, the Sierra Club and others
likes it are too rich to be considered the little guy anymore. Their
budget was over $40 million in 1991 - up $3 million more from the year
before! But this budget is minuscule compared to the monstrous budget
of the Nature Conservancy, which garnered $274.1 million in 1992.
Greenpeace, which sends students door to door begging donations, amassed
a budget of over $65 million the previous year. Other wealthy
environmental groups include the National Wildlife Federation ($89.7
million), World Wildlife Fund ($56.9 million), and Audubon Society ($43
million).
So not only is the current administration encouraging environmental
groups to bring more lawsuits against it, but it is relaxing its defense
strategy at the same time. In the usual course of litigation, once a
lawsuit against the government is filed, the government examines all the
bases upon which the lawsuit can be dismissed, such as standing and
other jurisdictional defenses. Under the leadership at the Department
of Justice, the chief litigating arm of the government in defending
against these environmental lawsuits, the word is out that procedural
defenses will not be raised in these lawsuits. The government now wants
quickly to get to the merits of the claims raised in these "friendly"
lawsuit.
If there ever was a true David in this land of Green Goliaths, it
is the individual property owner who is so often singled out to pay the
costs of complying with the ever increasing burden of environmental
regulations. The aim of the property owner had better be pretty good,
however, since it looks like his Goliath is only going to get bigger.
-Nancie G. Marzulla
President and Chief Legal Counsel
Defenders of Property Rights
6235 33rd Street NW
Washington, D.C. 20015
202 686-4197
"[N]or shall private property be taken for public use without just
compensation." U.S. Constitution, Amendment V