Inside the Equal Access to Justice Act

Lowell E. Baier is an attorney and a legal and environmental historian and author. Baier holds a B.A. from Valparaiso University, a J.D. from Indiana University and has received two honorary doctorates. He’s worked in Washington, D.C. throughout his 50 year career as a tireless advocate for natural resources and wildlife conservation. Throughout his career, he has observed and documented wildlife and its habitats on extensive treks and expeditions in the mountains and wilderness regions across the North American Continent, the Pamirs and Caucasus of Russia, and Mongolia’s Gobi Desert and Altai Mountains, providing him with first hand observations of wildlife and man’s interactions across the globe. He was recognized as the Conservationist of the Year by the National Fish and Wildlife Foundation in 2008, and again in 2010 and 2013 by two different national organizations.

Historians and other scholars of US environmental politics will find a scrupulously narrated account of the political milieu from which this legislation emerged, along with its evolution over recent decades, in the book’s first four chapters. Assembled from an impressive array of interview notes and archival texts, these accessible chapters detail the original objectives for and later impacts of this important statute…. Baier’s detailed policy history of the EAJA should be of interest to scholarly and lay readers alike.

• Table of ContentsTitle PageList of IllustrationsPrologue: Environmental Litigation and Its ConsequencesAuthor’s AcknowledgmentsChapter 1: The Growth of Government Regulation in the United StatesThe New Deal and the Foundation of the Administrative StateThe Administrative Procedure Act and Control Over AgenciesExpanding EntitlementsThe Great Society: Kennedy and JohnsonThe Era of Public Interest Law: Civil Rights, Consumerism and EnvironmentalismEnvironmental Litigation and Broadening the Waiver of Sovereign ImmunityChapter 2: The Development of the Equal Access to Justice ActEarly EAJA Proposals: Expanding the Public Interest MandateNarrowing and Focusing the Legislation: Responding to a Devastating Economic Crisis and Bureaucratic BlitzkriegEAJA: The Evolution of a Unique Small Business BillThe 1980 Presidential Election and the Reagan RevolutionWisconsin’s 1980 2nd District Congressional Election Campaign: A Microcosm of the Presidential ElectionThe Voice of the Silent Majority: America’s Small Business Community Resonates Through the Presidential Election Campaign1980 EAJA Hearings and Chairman Kastenmeier’s DilemmaThe September 3-4, 1980 Mark-Up of EAJA S. 265: Resurrection of a Pariah, the 501(c)(3) Financial ExemptionParanoia in the Capitol: EAJA’s Enactment Becomes Politically PragmaticChapter 3: Use and Amendment of the Equal Access to Justice Act from 1981 to 1985EAJA 101: How It WorksMoving EAJA from Temporary Legislation to Permanent LegislationThe Financial Exemption for 501(c)(3) OrganizationsPresident Regan’s Rejection of EAJA’s ReauthorizationChapter 4: Success and Expansion of the Equal Access to Justice Act After 1985Expanding EAJA’s Coverage and Reporting EAJA’s SuccessesImitating EAJASuccessful Users of EAJASmall BusinessesVeteransSocial Security BeneficiariesNative PeoplesImmigrantsExceptions: Cases Where EAJA Does Not ApplyRegulatory Shifts in the 1980’s and 1990’sFurther Amendments to EAJAChapter 5: The Universe of the Eco-CrusadersThe Constellation of Environmental AdvocatesThe First Generation: 1886 – 1936The Second Generation: 1947 – 1970The Third Generation: 1970 – 2000Anthropocentric Versus Biocentric Man, and Deep EcologyThe Secret World of Animal RightsChapter 6: Barbarians at the Gate: Saints and SinnersProfiles of the Third Generation’s Eco-Warriors: 1970 – 2000Environmental Public Interest Law FirmsConclusion to a Century of ChangeChapter 7: The Environmental Litigation CrisisThe Endangered Species Act: A License to SueThe Cost of Endangered SpeciesMegafauna to Megalitigation: Multidistrict LitigationThe MDL: Courtroom Access for Special InterestsA Temporary Reprieve: How the MDL will Beget More LawsuitsAn Answer to Litigation-Driven Species Management: Cooperative ConservationChapter 8: Cooperative Conservation: Preempting Listings and Building TrustThe Future Challenge: An Exercise in TrustThe Dunes Sagebrush LizardThe Lesser Prairie ChickenThe Greater Sage GrouseCooperative Conservation and Greater Sage GrouseCooperative Conservation: An Endangered Future?Chapter 9: Abuses of the Equal Access to Justice Act: Endangered Species and BeyondArmageddon: Litigating Solely to Delay Federal Agency ActionOf Wolves and Men: Using Litigation to Delay DelistingEAJA and Endangered Species: Statutory Limitations on Attorneys’ Fees Provisions501(c)(3)s and the Equal Access to Justice Act: America Foots the BillEvading Pierce: The Inflation of EAJA FeesThe Prevalence of SettlementsThe Sue and Settle Gambit: A New PhenomenonRulemaking by the Courts and EnvironmentalistsThe Cost of EAJAChapter 10: Reforming the Equal Access to Justice ActRecent Scrutiny of EAJACongressional Scrutiny of EAJARecommendations for Future EAJA Reform1. Restore reporting provisions2. Ensure the award of reasonable attorneys’ fees3. Make judicial intervention mandatory4. Strengthen eligibility requirements5. Fees awards under EAJA should be limited to $200,000 in any single case6. Each prevailing party should be limited to a total of three EAJA awards in any given year7. Parties should be statutorily barred from collecting multiple EAJA awards for the same work8. EAJA fees should be reduced in cases where parties utilize staff attorneys rather than outside counsel9. EAJA fees should be paid from agency budgets, not the Judgment Fund10. End no-fault litigation: Reverse fee shifting should be available under EAJAA Time for ActionEpilogue: A New Beginning?BibliographyAppendix A: The Equal Access to Justice ActAppendix A(1): The Equal Access to Justice Act After Passage in 1980Appendix A(2): The Equal Access to Justice Act After Reauthorization in 1985Appendix A(3): The Equal Access to Justice Act TodayAppendix B: EAJA Payments by the Department of Veterans Affairs, 2003-2012Appendix C: EAJA Payments by the Social Security Administration, 2004-2012Appendix D: Model Bill for Reform of the Equal Access to Justice ActAppendix E: AcronymsBibliography Author Biography