FOR IMMEDIATE RELEASE

September 29, 2021

Contact: Evan Keller (Duckworth), Evan_Keller@duckworth.senate.gov
Nicole L’Esperance (Wyden), Nicole_LEsperance@wyden.senate.gov
Taylor Foy (Grassley), Taylor_Foy@grassley.senate.gov
Kelly Ferguson (Lankford), Kelly_Ferguson@lankford.senate.gov

Duckworth, Grassley, Wyden Lankford Reintroduce Bipartisan Legislation To Protect Whistleblowers at DOE & NRC

[WASHINGTON, D.C.] – U.S. Senators Tammy Duckworth (D-IL), Ron Wyden (D-OR), Chuck Grassley (R-IA) and James Lankford (R-OK) reintroduced bipartisan legislation today to make sure federal law provides U.S. Department of Energy (DOE) and Nuclear Regulatory Commission (NRC) civil servants with the same due process rights provided to corporate employees who experience retaliation for blowing the whistle on nuclear safety violations. The bipartisan Department of Energy and Nuclear Regulatory Commission Whistleblower Protection Act would ensure DOE and NRC employees have a fair opportunity to enforce whistleblower protection rights under Section 211 of the Energy Reorganization Act (ERA) – precisely as Congress intended more than 15 years ago when it passed the Energy Policy Act of 2005 and added DOE and NRC as covered employers under Section 211 of the ERA.

“Every individual should be protected when blowing the whistle on a nuclear safety violation, which is why Congress was right to act more than 15 years ago to ensure civil servants at the Department of Energy and Nuclear Regulatory Commission received the same whistleblower protections and due process rights as nuclear energy industry employees,” Duckworth said. “The legal loophole that now denies DOE and NRC employees full whistleblower protections when engaging in protected activity ultimately weakens oversight, accountability and public confidence in the industry, and I am grateful to be working with a strong bipartisan coalition that shares my commitment to swiftly fixing this problem.”

“Whistleblowers are on the front lines in the battle against fraud and mismanagement in government,” said Grassley, Founding Chairman of the Senate Whistleblower Protection Caucus. “Their work shines a light on problems that might otherwise go unnoticed, and they ought to be celebrated and protected, not demonized and punished. That was Congress’ view in 2005 when we passed the Energy Policy Act and that’s our view today. This bill reiterates our intent and clarifies the law to make it clear that whistleblowers who call attention to nuclear safety violations are protected from retaliation.”

“Being a whistleblower has never been an easy road to travel, and because of a legal loophole that denies full whistleblower protections for DOE and NRC employees, it’s even harder for these civil servants to shed light on waste and abuse,” said Wyden, Founding Vice-Chairman of the Senate Whistleblower Protection Caucus. “All whistleblowers — industry and government employees — deserve the strongest protections against retaliation when they come forward with nuclear safety violations, and our bipartisan bill will ensure this happens.”

“Federal employees at the Department of Energy and the Nuclear Regulatory Commission are owed the same whistleblower protections as any federal employee,” said Lankford. “Federal agencies must maintain standards and do their job in accordance with the law, and one of the best ways to ensure that happens is empowering federal employees to bring concerns of wrongdoing to Congress or their Inspector General. This important legislation corrects an issue in how we protect people from retaliation who are making sure we do the right thing, the right way.” 

“This legislation overcomes linguistic technicalities relied on by courts to block a nuclear safety law for 16 years,” Tom Devine, Legal Director of the Government Accountability Project. “In 2005, Congress enacted the right for Nuclear Regulatory Commission and Department of Energy whistleblowers to seek justice against retaliation through jury trials in federal court. Despite this clear intent, various decisions have held that the law did not grammatically overcome a legal doctrine known as sovereign immunity which prohibits suits against the government. As a result, NRC and DOE nuclear whistleblowers have been blocked from receiving their day in court. Senators Duckworth, Grassley, Wyden and Lankford seek to end the sophism. For years they have been congressional leaders for whistleblower protection. All whistleblowers and supporters of safe energy owe them thanks.”

Duckworth questioned the former NRC Chairwoman Kristine Svinicki about workforce culture issues at NRC at a U.S. Senate Environment and Public Works Committee (EPW) hearing last year.

Following enactment of the Energy Policy Act of 2005, the U.S. Department of Labor’s (DOL) Occupational Safety and Health Administration promulgated regulations and provided materials to be displayed in DOE and NRC offices, which included guidance on how DOE and NRC employees could file a complaint if retaliated against for engaging in protected activity under Section 211. However, DOL Law Judges and the United States Court of Appeals for the Fourth Circuit subsequently determined that such complaints from DOL or NRC personnel would be summarily dismissed, because Congress did not provide the clear and unequivocal waiver of sovereign immunity under Section 629 of the Energy Policy Act of 2005 that the Supreme Court of the United States requires to enable whistleblower protection claims to be enforced against the United States Government.

The bipartisan Department of Energy and Nuclear Regulatory Commission Whistleblower Protection Act simply clarifies current law to provide the clear and unequivocal waiver of sovereign immunity that will enable Section 211 ERA whistleblower protection rights to be enforced against all covered employers – just as Congress intended when it amended the law more than 15 years ago. Passing this bipartisan whistleblower protection bill swiftly will ensure all DOE and NRC employee complaints under Section 211 are adjudicated on the merits.

The bill is endorsed by the following members of the Make It Safe Coalition: Government Accountability Project, National Taxpayers Union, National Whistleblower Center, Project on Government Oversight, Public Citizen, Taxpayer Protection Alliance, Acorn 8, Transparency International – U.S. Office, Whistleblowers of America.