[Dialogue] Bush Declares Eco-Whistleblower Law Void for EPA Employees

[Harry Wainwright]

FOR IMMEDIATE RELEASE
SEPTEMBER 4, 2006
1:23 PM

CONTACT: Public Employees for Environmental Responsibility (PEER)
Carol Goldberg (202) 265-7337

Bush Declares Eco-Whistleblower Law Void for EPA Employees
Stealth Repeal of Clean Water Act Protections by Invoking "Sovereign
Immunity"

WASHINGTON - September 4 - 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Citing an "unpublished opinion of the [Attorney General's] Office of Legal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 "The use of an unpublished opinion to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. 

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