Hunt County, Texas is aggressive in its enforcement actions and has retained a private law firm to prosecute an environmental enforcement action for the alleged illegal disposal of waste material. The private law firm was retained on a contingency-fee basis (the law firm gets to keep a percentage of whatever is collected). Hunt County is seeking as much as $2,000,000,000.00 (yes, that is “billion”) in fines for the alleged improper waste disposal. Under a specific statutory provision, Hunt County filed the lawsuit in Austin, Texas, Travis County (not Hunt County). The Dallas Morning News published an article on the case on June 24, 2016.
The issue, under this arrangement, is that the governmental entity and the law firm each have a perverse incentive to sue for as much money as possible and demand large sums in settlement. Some critics call it old fashion patronage (elected officials reward lawyers who give money to their campaigns). The counter argument is that the contingency fee contracts can be an effective response to well-funded defendants.
There are currently about fifty or so of these types of cases across Texas. The “sales pitch” is that local governments have zero risk (they are not paying an hourly rate) and can earn potentially big revenue from enforcing state environmental laws. The question is, however, is it an abuse of power. The City of Houston has a very robust environmental criminal enforcement program – so robust that a state law was passed requiring local governments to get permission from the TCEQ before proceeding.
Most of the larger cities in Texas just let the city attorney’s office handle these types of enforcement cases.
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