Ruling throws cold water on environmental whistleblowers

Ruling throws cold water on environmental whistleblowers
By David Goldstein
McClatchy Newspapers
5/20/07

WASHINGTON - The sentence was buried deep within a recent Labor Department ruling, but the message was clear:

Whistleblowers, beware.

More specifically: Whistleblowers relying on the protections against official retaliation contained in several major environmental laws, proceed with caution.

The sentence was in a footnote at the end of a ruling against a federal whistleblower. It said the Labor Department recognized only the protections written into the clean air and solid waste-disposal acts, not laws governing clean water, drinking water, toxic substances and hazardous waste.

"This is the latest attack in a systematic war to gut the environmental whistleblowers' statutes," charged Tom Devine, the legal director of the Government Accountability Project, a nonprofit watchdog group. "They are a lifeline so government workers can challenge illegality without engaging in professional suicide."

The Labor Department has jurisdiction over environmental whistleblower cases. Steven Mandel, an associate solicitor for the agency, said it took those complaints "very seriously."

"I do not believe there has been any change in policy or practice in this area," he said. "We think we do a very effective job protecting whistleblowers."

Whistleblower advocates, however, view the footnote as more proof that the Bush administration makes it harder to expose problems in enforcing environmental laws.

In 2005, the Justice Department said the Clean Water Act's whistleblower protections were invalid.

The Environmental Protection Agency has said in court papers involving another case that it doesn't recognize the protections in any of the six major environmental laws.

That was underscored this past week. Asked about those protections, the EPA said in a statement that it supported whistleblower protections passed in 1989 and in 2001 that cover all government agencies. But the agency didn't mention the safeguards in the laws that it administers

Several federal scientists and other environmental experts said government employees would be less likely to speak out if demotions, pay cuts and other types of reprisals were to be the result.

"If you're an employee, it has a very chilling effect," EPA whistleblower Cate Jenkins said.

An EPA scientist, Jenkins has claimed that the agency downplayed the health dangers of the dust around the World Trade Center after the Sept. 11, 2001, attacks.

The list of environmental concerns that whistleblowers have exposed is long. It includes pesticide testing on infants, leaking underground storage tanks, arsenic in drinking water and the threat of mercury contamination in food.

"When there are obvious problems, employees need to be able to go to the (Capitol) Hill or go to the media and talk about it," said Bill Hirzy, an EPA chemist who's a union official for agency employees. "We've got to have the ability, without fear of reprisal, to point that out to people who can do something about it."

Even environmental-movement critic Bonnor Cohen, who charged that its supporters "engage in shameless scare campaigns," said whistleblowers needed better shields.

"There's no teeth in what's on the books now," said Cohen, a senior fellow at the National Center for Public Policy Research, a conservative research center. "It looks as if whistleblowers are protected. They are not. Again and again they have to go seek legal protection. This problem is not just at EPA, but across the board."

All federal employees have whistleblower protections under the 1989 Whistleblower Protection Act. But employee disclosures under the law must meet very specific requirements for the protections to apply. They must show, for instance, an imminent danger to public health or safety.

The requirements for protection under the six major environmental laws are less restrictive. Generally, the disclosure must further enforcement of the law.

At issue is the Bush administration's view that since the government has "sovereign immunity" - individuals can't sue it unless it agrees to be sued - only Congress can waive that immunity, and it hasn't done so with all the environmental whistleblower laws.

If true, an employee can't sue the government for lost wages or other punitive measures that might have been taken as a result of the employee's speaking out.

The footnote in the Labor Department ruling said Congress had waived sovereign immunity only for the clean air and solid waste laws. But there appears to be a dispute within the department about whether other laws also could be covered.

Whistleblower advocates held a conference this week on Capitol Hill, where they stressed a need for stronger employee protections.

"Without transparency, the special interests hijack government agencies and run them in the service of private, parochial profits," charged Joan Claybrook, a former government official who heads Public Citizen, a nonprofit consumer-advocacy group. "We have seen this happen again and again under the current administration, and no trend is more corrosive to democracy."