Citing legal documents obtained by Public Employees for Environmental Responsibility (PEER) showing how “the Bush administration has reversed two decades of precedent and declared that important whistleblower protections in the Clean Water Act do not apply to federal workers,” the science journal Nature called the administration’s action “pernicious.”  Nature says scientists could feel the chilling effect particularly strongly, and calls government whistleblowers “a key defence against further erosion of environmental standards.”

Excerpts from the Nature editorial followed by the PEER news release:

The Nature editorial (by subscription; copyright Nature Publishing Group), “Whistleblowers in peril,” published on-line September 13, indicates the potential implications for federal scientists.  Excerpts:

Whistleblowers in peril

The US Congress should reverse a pernicious removal of protection of federal employees.

In another worrying instance of its tendency to quietly arrogate new powers to itself, the Bush administration has reversed two decades of precedent and declared that important whistleblower protections in the Clean Water Act do not apply to federal workers….

The water law was written to protect workers in the private and public sectors who report breakdowns in its enforcement, manipulations of science, or clean-up failures. Its whistleblower provisions essentially apply to any action a worker might take in a sincere effort to do a good job and hence go further than a different, government-wide whistleblower law that is still in place but that protects only the reporting of gross mismanagement or violations of law….

Exempting federal employees would expose to retaliation some 170,000 members of the federal workforce in a dozen different agencies, from the Forest Service to the US Geological Survey, who might make efforts in good faith to see that the law is properly enforced. Scientists could feel this particularly strongly, as the problems they encounter—such as the skewing of a methodology or the removal of a conclusion from a report—don’t typically violate a law. This change is bound to suppress their willingness to report such events….

It is common knowledge that the Bush administration has fought against implementing more stringently protective environmental laws, and its enforcement of existing laws has been weak to a fault….In such an atmosphere, whistleblowers within the government become a key defence against further erosion of environmental standards. Removing their protections seems all but certain to hasten this erosion.

Text of PEER’s September 4 news release reporting the case:

September 4, 2006

Stealth Repeal of Clean Water Act Protections by Invoking Sovereign Immunity

Washington, DC—The Bush administration has declared itself immune from whistleblower protections for federal workers under the Clean Water Act, according to legal documents released today by Public Employees for Environmental Responsibility (PEER). As a result of an opinion issued by a unit within the Office of the Attorney General, federal workers will have little protection from official retaliation for reporting water pollution enforcement breakdowns, manipulations of science or cleanup failures.

Citing an “unpublished opinion of the [Attorney Generals] Office of Legal Counsel,” the Secretary of Labor’s Administrative Review Board has ruled federal employees may no longer pursue whistleblower claims under the Clean Water Act. The opinion invoked the ancient doctrine of sovereign immunity which is based on the old English legal maxim that “The King Can Do No Wrong.” It is an absolute defense to any legal action unless the “sovereign” consents to be sued.

The opinion and the ruling reverse nearly two decades of precedent. Approximately 170,000 federal employees working within environmental agencies are affected by the loss of whistleblower rights.

“The Bush administration is engineering the stealth repeal of whistleblower protections,” stated PEER General Counsel Richard Condit, who had won several of the earlier cases applying environmental whistleblower protections to federal specialists. “The use of an unpublished opinion to change official interpretations is a giant step backward to the days of the secret Star Chamber.” PEER ultimately obtained a copy of the opinion under the Freedom of Information Act.

At the same time, the U.S. Environmental Protection Agency (EPA) is taking a more extreme position that absolutely no environmental laws protect its employees from reprisal. EPA’s stance would place the provisions of all major federal environmental laws, such as the Clean Air Act and the Safe Drinking Water Act, beyond the reach of federal employees seeking legal protection for good faith efforts to enforce or implement the anti-pollution provisions contained within those laws.

These actions arose in the case of Sharyn Erickson, an EPA employee who had reported problems with agency contracts for toxic clean-ups. After conducting a hearing, an administrative law judge called EPA’s conduct “reprehensible” and awarded Erickson $225,000 in punitive damages but the Labor Secretary overturned that ruling.
“It is astonishing for the Bush administration to now suddenly claim that it is above the law,” said PEER Senior Counsel Paula Dinerstein, who is handling Erickson’s appeal of the Labor Secretary’s ruling to the U.S. Court of Appeals for the 11th Circuit based in Atlanta. “Congress could end this debate by simply declaring that it intends that the whistleblower protections of these anti-pollution laws apply to the federal government.”

Congress is now debating Clean Water Act clarifications in the wake of a confusing U.S. Supreme Court decision (Rapanos et ux., et al. v. United States) handed down this June that muddies the extent of federal jurisdiction over wetlands. Unless Congress also resolves the Clean Water Act sovereign immunity question, scores of federal employee whistleblower cases may be dismissed or languish in limbo while the issue is litigated.

(See the news release on the PEER Web site for links to the relevant documentation.)