Washington, DC — In a behind-the-scenes maneuver, the U.S. Department of Labor is moving to cancel whistleblower protections for federal employees who report environmental problems, according to an agency order released today by Public Employees for Environmental Responsibility (PEER) and the Government Accountability Project (GAP). If it succeeds, the Labor Department will dismiss scores of whistleblower retaliation claims filed by federal workers who reported violations under laws such as the Clean Air Act and the Safe Drinking Water Act. The two whistleblower protection groups are filing a counter legal brief today in an attempt to block the move.
Approximately 170,000 federal employees working within environmental agencies would be directly affected by the loss of whistleblower rights. Tens of thousands of workers in non-environmental agencies, such as the Department of Defense, but who report pollution violations would also lose legal protection.
“Federal workers in agencies such as the Environmental Protection Agency function as the public’s eyes and ears to shed light on imminent threats to public health and safety, particularly when administration politics work to keep the public in the dark,” stated PEER General Counsel Richard Condit, noting that eight major federal environmental laws safeguard employees for good faith efforts to enforce or implement the anti-pollution provisions contained within these laws. “At a time when honesty within our federal agencies is more important than ever, the Labor Department is moving to shut down one of the few legal avenues left to whistleblowers.”
The Labor Department seeks to invoke the ancient doctrine of sovereign immunity in all whistleblower cases filed by federal workers, thereby foreclosing any relief in cases of reprisal by federal agencies. This action arose last month in a case involving an EPA employee named Sharyn Erickson who has won two whistleblower cases against the agency. A Labor Department administrative law judge called EPA’s conduct “reprehensible” and awarded Erickson $225,000 in punitive damages for reporting problems with agency contracts for toxic clean-ups.
In a highly unusual move, the Secretary of Labor’s Administrative Review Board on its own motion invited EPA to raise a sovereign immunity defense against Erickson’s attempts to enforce her earlier legal victories over the agency. This invitation comes after many EPA employees over the past decade have successfully used the whistleblower provisions of the eight major federal environmental laws to reverse political interference in pollution cases. In virtually all these cases, the sovereign immunity defense had become a dead issue. Now Labor Secretary Elaine Chao is signaling that this obscure, moribund legal argument will suddenly be looked upon with favor.
“Under this latest Bush administration gambit, federal environmental specialists would not be protected by the very laws they are supposed to be enforcing,” said GAP General Counsel Joanne Royce. “We do not want public servants wondering whether they will lose their jobs for acting against pollution violations of politically well-connected interests.”
If the Labor Department does officially sanction the sovereign immunity defense against Erickson’s claims, the case will be appealed to the U.S. Court of Appeals for the 11 th Circuit based in Atlanta. In the interim, however, scores of federal employee whistleblower cases may be dismissed or languish in limbo.
Read the PEER/GAP brief (available upon request)