July 3, 2008

Rizzardi on ESA litigation

By Rizzardi on ESA litigation

At his ESA blawg, Keith Rizzardi submits this perspective on Endangered Species Act lawsuits against the federal government:

Unfortunately, in today's reality, the chances of the FWS or NOAA actually engaging in settlement discussions is often slim to none, for three reasons. First, given the years of internal wrangling that takes place within the government before ESA-related decisions are finally made, political will to settle these cases is very limited. Second, litigation has become so routine that Federal officials are numb to it, and in fact, even if they wanted to work on a settlement, the abundance and demands of competing litigation leaves no time for the task. Finally, the plaintiffs actually have a disincentive to settle, because in order to encourage "citizen attorneys general" to enforce the law, another provision in Section 11 of the ESA, as well as the Federal Equal Access to Justice Act, empowers courts to pay the attorney's fees for federal litigants who achieve even a small degree of success. Thus, Plaintiffs' lawyers have an incentive to file the lawsuit first, and then (maybe) think about a settlement that includes payment of attorney's fees.

Having previously worked as environmental attorney with the U.S. Department of Justice, Rizzardi's thoughts are certainly worth pondering over.

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