PEER: Administration Declares Eco-Whistleblower Law Void for EPA Employees

The Bush administration has declared itself immune from whistleblower protections for federal workers under the Clean Water Act, according to legal documents released on Sept. 4 by Public Employees for Environmental Responsibility (PEER).

Citing an "unpublished opinion of the Attorney General's Office of Legal Counsel," the secretary of Labor's Administrative Review Board has ruled federal employees may no longer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.

Approximately 170,000 federal employees working within environmental agencies are affected by the loss of whistleblower rights, according to PEER.

"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 "The use of an unpublished opinion to change official interpretations is a giant step backward to the days of the secret Star Chamber."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, EPA is taking a more extreme position that absolutely no environmental laws protect its employees from reprisal, according to PEER. 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 cleanups. 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."

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, PEER stated.

For additional information, contact PEER at http://www.peer.org.

This article originally appeared in the 09/01/2006 issue of Environmental Protection.

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