By Andrew H. Perellis, Eric E. Boyd, and Craig B. Simonsen

Most environmental statutes allow suits challenging actions by the U. S. Environmental Protection Agency (EPA), and provide that successful plaintiffs in these actions can receive attorney fees and costs. The U.S. Government Accounting Office (GAO) recently released an analysis of Environmental Litigation: Cases Against EPA and Associated Costs Over Time. The GAO examined environmental litigation for the years 1995 through 2010, including payments to successful plaintiffs from the U.S. Department of Justice’s (DOJ) Judgment Fund and from the EPA appropriations. To conduct the review, GAO obtained and analyzed data from two DOJ databases on cases filed under ten key environmental statutes.  In addition, GAO interviewed representatives of environmental and industry groups, state attorneys general, and other experts.

According to the report, the number of cases filed in federal court varied over time. Generally, DOJ defended EPA in about 2,500 cases between 1995 and 2010, with an average of about 155 cases each year. Most cases were filed under the Clean Air Act (59 percent) and the Clean Water Act (20 percent).  The plaintiffs filing cases against EPA during the study included trade associations (25 percent), private companies (23 percent), local environmental groups and citizens’ groups (16 percent), and national environmental groups (14 percent).

The DOJ did spent $43 million (calculated in 2010 dollars), or $3.3 million annually, to defend the EPA in court during this time. In addition, due to statutory requirements to pay attorney fees and costs, the Treasury paid about $14.2 million from fiscal year 2003 through fiscal year 2010, or about $1.8 million per fiscal year, to successful plaintiffs in environmental cases. EPA paid approximately $1.4 million from fiscal year 2006 through fiscal year 2010, or about $280,000 per fiscal year, to successful plaintiffs for environmental litigation claims under relevant statutes.