Law will discourage filing of unwarranted environmental claims

Posted: Tuesday, June 24, 2003

Lawyers for Alaska's green groups may be forced to think twice from now on before filing anti-development lawsuits.

Gov. Frank Murkowski signed into law last week a measure warmly supported by most legislators that closed a loophole which for years has encouraged the filing of unwarranted environmental legal claims.

The old law, which was especially troublesome for the mining industry, excused so-called public interest groups from paying legal fees and costs for the winning side when they were unsuccessful in court challenges against the state or local governments. The new law puts them on a similar footing to individuals or companies who sue government and lose, except when the public interest group raises constitutional issues.

Awarding of fees and costs against the losing side is common in civil court cases in Alaska. But lawyers for green groups used the public interest exemption extensively, making Alaska a very litigious state on environmental issues.

Since the green lawyers could be awarded their own fees and costs if they won and got a relatively free ride on costs if they lost they tended to run to the courthouse and sue on legal points of all kinds, including the frivolous.

Often their real intent was to use legal challenges to delay projects until the investors threw up their hands and walked away. If the green lawyers won, they got paid; if they lost, the attempt was free.

That race to the courthouse was a significant impediment to resource development. Investors were reluctant to commit their money to projects that could be interminably delayed by determined environmental opponents.

The new rules do not apply when the public interest groups are challenging the constitutionality of state or local government actions, which will generally be difficult. That provision applies in cases involving rights guaranteed by either the Alaska or U.S. constitutions.

As an example of how Alaska stacked up with other states on litigation risk, the Alaska Economic Report noted this spring that Alaska rated 12th among international prospects attractive to mineral explorers.

But, it reported, ''when responses on land-use and environmental issues are taken out of the composite score, Alaska becomes No. 3 in the world in attractiveness.''

In other words, the race to the courthouse by green lawyers was pushing Alaska far down the list of places to invest. And that lower listing almost certainly cost the state billions in mineral investments.

The change won't eliminate environmentalist obstructionism, but it should put much-needed constraint on their activities.

The Voice of the (Anchorage) Times

June 22



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