Karen Budd-Falen is a fifth-generation rancher in Wyoming. She’s also a strong-minded lawyer who tracks millions in legal fees paid to Big Green environmental groups by federal agencies in lawsuits to save endangered species — and she makes the records public. They show that the Endangered Species Act has been hijacked by those same Big Green groups that use it in the courts as an ideological weapon against development — and to enrich themselves.
Stories of such things as wind farm projects thwarted by a field mouse are no longer uncommon, but investigations of how environmental lawyers turn the ESA into a private money machine are almost nonexistent. Budd-Falen has pioneered that niche with high-detail profiles.
The government stopped compiling and releasing its legal cost information years ago. Budd-Falen’s research revealed that the blackout has hidden hundreds of millions in legal costs, even some that don’t result in attorney fee awards but fritter away agency conservation budgets.
For example, a recent thorny ESA case required paperwork that cost more than $206 million. Budd-Falen’s painstaking research is the only way to find out what American taxpayers are really paying the “environmental litigation industrial complex,” as one wag calls it.
“I’m concerned over the role federal court litigation has taken in directing the Endangered Species Act against economic activity. I show why oversight by Congress is needed,” Budd-Falen explains.
A substantial following of clients and interested citizens has taken up her call for congressional oversight. Her work came to the attention of House Natural Resources Committee Chairman Rep. Doc Hastings, R-Wash., and inspired him to call a hearing titled “The Endangered Species Act: How Litigation is Costing Jobs and Impeding True Recovery Efforts” with Budd-Falen as lead witness.
It was no accident. Budd-Falen is a long-time friend of Cynthia Lummis, Republican representative for Wyoming’s at-large congressional district. Like Budd-Falen, Lummis is a rancher and lawyer who is concerned over the economic damage caused by ESA litigation.
Lummis is in a position to do something about it because she is an appropriator — a member of the House Appropriations Committee — but one of a different breed from the pork-packing leaders on that panel.
Lummis has opposed the panel’s powerful chairman, Rep. David Camp, R-Mich., and voted against appropriations she viewed as wasteful or unnecessary.
The Washington Examiner’s Timothy P. Carney has called Lummis an “anti-appropriator” and “the league leader in bucking the committee leadership.”
Budd-Falen worked closely with Lummis to draft a classic anti-appropriator bill, the Government Litigation Savings Act, which includes a thorough reporting requirement for attorney fees.
Budd-Falen fingerprints show clearly throughout the bill, with features such as online public access to a complete database of all cases and fees,
Lummis and 62 co-sponsors introduced the bill as H.R, 1996 in March. Lummis made sure that it came to Hastings’ attention. His panel had been considering a thorough examination and review of ESA, something that hasn’t been done for 23 years.
After months of preparation, the hearing was held two weeks ago. It gave Budd-Falen the platform to expose the most egregious attorney fee abuses under ESA.
Her testimony was quietly sensational. It calmly and with lawyerly precision — and more than a little jargon — unfolded one abuse after another, each pointing to a problem that could only be solved by Congress.
For example, she put the lie to Big Green claims that they recover attorney fees only when they prevail in proving that the government was breaking the law, either by neglect of duty or otherwise.
“Based upon data collected from the PACER National Case Locator federal court data base, attorneys fees were paid in cases where there was no federal court decision, let alone a decision that the plaintiff was a prevailing party,” Budd-Falen said.
That should be sufficient to raise suspicions of some sweetheart arrangement between supposedly opposing parties, but actually between blood brothers with the same ideology — “you sue us, and we’ll make sure you’re taken care of, even if the court doesn’t order it.”
This is the backstory of Budd-Falen’s long road to a hearing room in Washington. For those interested in following the entire three and a half-hour result, all witness testimony is posted on the committee website.
Examiner Columnist Ron Arnold is executive vice president of the Center for the Defense of Free Enterprise.
