EPA deep sixes whistleblower protection

On Labor Day, Public Employees for Environmental Responsibility (PEER) issued a press release whose title summarizes its contents all too neatly: Bush Declares Eco-Whistleblower Law Void for EPA Employees. Here's some of it:

Washington, DC - 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Citing an "unpublished opinion of the [Attorney General's] Office of Legal Counsel," the Secretary of Labor's Administrative Review Board has ruled federal employees may no longer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 "The use of an unpublished opinion to change official interpretations is a giant step backward to the days of the secret Star Chamber."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."

Of course it's not really astonishing for the Bush administration to claim they are above the law. It would be in fact astonishing if they considered themselves subject to the law. Meanwhile the Republican congress, to its own shame, sits on its hands and clucks about obscenity on television, video games and teenage file sharing. Did I forget gay marriage and the flag burning amendment?

This congress isn't likely to end the debate by allowing whistleblower protection for government employees. Just think of the risk they'd be taking.

Here are the documents, if you have the stomach for them (all .pdfs):

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When Adolph Hitler was elected head of the German government in 1933, democracy still existed in Germany. Hitler promised to protect the German people from a Communist takeover of the government.
When the democratically elected Congress assembled, some oppositon leaders to the Nazi Party actually had the nerve to march into the Congress and walk between rows of Nazi Brown Shirts to the podium, and give speeches denoucing the murder and arrest of Communist leaders. Some of these democratic representatives carried cyanide pills, in case they were detained.
Hitler allowed them to denounce the actions of the Nazi Party in order to maintain the illusion of democracy.
Today Bush promises to protect us from Terrorism. The Patriot Act has destroyed our constitutional rights. There is no longer equal protection under the law.
The president of the American Association for the Advancement of Science, John Hodren, stated in a BBC interview, the climate is changing much more rapidly then that which was thought in the past. He says we are experiencing a dangerous change right now. And he says it will require drastic action to stop the destruction of the planet by global warming. The oceans could rise 4 meters. The Greenland icecap is melting rapidly.
We are in the grips of a Corporatist Fascist Government.
Multinational corporations control our government, and buy the President and the Congress. Now Bush and Cheney want to attack Iran, just as Hitler decided to invade Poland.
The German people in 1933 elected Adolph Hitler to power. It was a mistake and a tragedy. The American people elected George Bush to power, and that may result in the destruction of what is still left of our democratic government. Martial Law is closer than you think.

I have read the posted information on the .PDF's. What the AAG stated was in his opinion, that it wouldnt make any significant change for a whistleblower in one particular instance relating to the Clean Water Act to receive compensation for a blowing the whistle on water quality in a particular place. It still leaves open the whistleblower remedies that may be pursued. It just limits the ability of the whistleblower from being able to receive compensation for filing the suit. An AG opinion does not prevent them from filing the suit and if it has merit you must remember that the government in a lawsuit is guilty until proven innocent.

Mind, most of this was always motivated by money. The official position of a whistleblower is generally blown and while retained its with so so advancements etc. and thats the reason they put the money damages out there as a percentage. Cant really blame them... By the way the Dems voted against it when it passed.

Bush and Cheney arent the only ones who want to attack Iran. I do too and massively. Lets add Saudi Arabia, Israel, Jordan, Egypt, Oman, Dubai. They just dont have the horsepower William. If you think things are bad now just wait and see what happens if they get a bomb. They will control the Straits and can easily contaminate every oil well in Saudi Arabia with the pop of one cap. Think its bad now? You would see more hard core than it is now. Its dumb to sit there and make this statement that its just BUSH. Bush doesnt write opinions and this is an Assistant AG. He can be over ruled as well by the AG.

No story here and William, Bush as a modern day Hitler isnt there. You simply cant say it and back it up. I defy you to say that even one of your "freedoms." is being limited except when you go to the airport. William, better stay in S. America because the doors are being kicked in and the trains are heading to your camps up here. Say Hi to Fritz and the gang down there. Besides you are on high ground there. Another reason to stay. Wouldnt want you to get your feet wet. I hear that Al Gore has a mansion in La Paz.

By M. Randolph Kruger (not verified) on 06 Sep 2006 #permalink

One other thing on this issue. Regardless of what Dr. Chao of Labor and the EPA Secretary say, the government is three branches. It is as you say Revere the responsibility of Congress to fix this because the law is ambiguous in many respects. Not enough what ifs have been applied to it in the courts. Ericksons appeal will likely have this overturned but no monetary awards which is what the AAG stated. Not that the government is immune, its immune in this one particular case. He will be overruled by the appeal without doubt.

Politically motivated? Certainly. Will it stand? Likely not. I read his arguments and they are founded in good sound common and statutory law. But they are weak as Hell and he is likely a hack, just as the Democrats will have their hacks when they get back in there. Those are the same guys that will ensure that everyone has a "living wage" in this country but they wont have any jobs because they cant compete on the world marketplace. There is something to dump... Minimum wages. Hitler was one of the first to implement it.

By M. Randolph Kruger (not verified) on 06 Sep 2006 #permalink

Nothing has changed. Shrub ignores the law or changes it to suit himself. Congress is either whimpy or agrees with Shrub and refuses to challenge him. We currently do NOT have a government of the people.

Aha, Mr. Krueger is actually a secret Marxist! "Dump the minimum wage" indeed!

When I was a kid it was commonly understood that the reason Marxism never had a chance in the US is because we have a solid middle class and anyone with a good work ethic can earn themselves a permanent place in it.

Doing away with the minimum wage would be the end of upward mobility, and thus we would become ripe for the commies to start making trouble. After the defeat of the evil Soviet empire, if you think the commies all went away, you're delusional. They are still around looking to make trouble. And repealing the minimum wage would be a brilliant strategic maneuver, sneaking in disguised as laissez-faire.

Don't forget who has gained the biggest benefits of "globalization." The People's Republic of China. Take a look at their flag. Still red as can be. Oh, I admire China's scientific, engineering, and industrial brilliance as much as anyone. But I don't have any illusions about what-all this globalization stuff is ultimately trying to accomplish. If I'm not mistaken, the stock phrase was something like "the international proletariat" or "the global proletariat."

Sorry, Randolph, I'm not buying.

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As for nuking the Saudis, we had our chance after 9/11, since after all 19 of the 20 hijackers came from there. But the idiots in the white house didn't have the sense to go for the big prize, they merely settled for second best with this Iraq thing, and then after the military did its job with characteristic excellence (three weeks to regime change), they (the civilian leadership) slacked off on the post-maneuver phase and let it sink into a quagmire.

That's what happens when you have a president with a mediocre track record. The Republican party used to be the party of meritocracy. Now it's the party of mediocrity. Give me a Colin Powell or a Wesley Clark any day of the week, those are men of merit and excellence, who can stand up to the Russians and the Red Chinese (see, few things really change, do they?) not to mention a bunch of decadent princes collecting welfare from the oil companies. But no. Instead we have "Mr. Gentleman's C" and "Mr. Five Deferments." In a democracy we do after all get the government we deserve. Even if it had to steal two elections to get there.

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As for what-all this has to do with public health: all those lovely tropical diseases waiting patiently to expand their range as the temperature slowly but significantly increases as a result of our incessant desire to burn dinosaur juice for amusement.

And so we sail through the air in a graceful and majestic arc. The edge of the cliff recedes behind us, and the jagged rocks come up fast from below, but for now, the view is just stunning.

WHOA! Call the police! There's been a thread hi-jacking!
*******************
And now backed to our regularly scheduled comments...

Wow, somehow Randolph always sneaks the subject back to obliterating the entire arab world in the name of "peace". That must really get your blood boiling, eh Randy> Kicking some Arab a.... But as Darin points out, the issue here is really the Bush administration's ongoing war against the environment this time, not the Middle East. It is interesting that this voiding of protection for whistleblowers is - if I read this right - only against those who are telling of governmental misdeeds connected with the EPA and specifically the Clean Water Act. I haven't read the citations yet, but I will in a minute. Let you know if it changes my mind about anything. However, it seems to me that if people closest to the truth can no longer go public about such things without fear of retaliation, then we are in some serious trouble. We are talking about the limiting factor on this planet, potable water,not some spotted owl or oil futures. To take away our rights to conserve and protect this commodity which is absolutely vital to life goes way beyond economic considerations. I kind of doubt that Ms Erikson reported the EPA's actions just to get some money, nor that the court would award her money if they didn't somehow feel that a) what she reported was true, and b) the EPA had done something to her personally as a result which was "reprehensible." My sister was a judge, and she taught me that the vast majority have the highest respect for law.

By mary in hawaii (not verified) on 06 Sep 2006 #permalink

I don't have time or stomach to read all the pages of legal briefs cited above - the language puts me to sleep -but I did go through the original unpublished opinion of the AG (first citation, above) dated Sep 23, 2005 upon which all the rest are based.

Mr. Kruger opined, after reading the pdfs, that " What the AAG stated was in his opinion, that it wouldnt make any significant change for a whistleblower in one particular instance relating to the Clean Water Act to receive compensation for a blowing the whistle on water quality in a particular place. It still leaves open the whistleblower remedies that may be pursued. It just limits the ability of the whistleblower from being able to receive compensation for filing the suit."

That's not what I read. What it says is that the government is immune with respect to the "whistleblower provision of the Clean Water Act". It goes on to clarify that provision as follows: "The CWA prohibits discrimination against an employee who has filed...any proceeding under this chapter.." It further clarifies this as "no person shall fire or discriminate against any employee" who has filed any proceeding or testified in any proceeding" (related to water pollution matters.) So, if the EPA as a government agency is now immune to this, that means the EPA does not have to honor the whistleblower protection provision. Meaning it is allowed to fire or discriminate against said employee.

The AG's letter goes on to say, as a separate issue, that the government may not be sued without its consent on such matters unless it waives immunity. And since, in this legal opinion, it is now " not waiving" such immunity, this means it can't be sued.)

On page 6 of this legal opinion paper it states that "it is difficult to see how section 1367" [of the CWA] "which establishes remedies for employer whistleblower retaliation is a 'requirement'...respecting the control and abatement of water pollution." I take this to mean that an EPA employee whistleblower has no remedies against employer retaliation if they testify against the EPA regarding problems relating to enforcement of the Clean Water Act.

So, although according to Mr. Kruger's interpretation, the opinion by the AAG is directed at this particular case only, and its sole intent is to save the government $225K in a lawsuit, the far broader implications - which are clearly iterated - are that a whistleblower employed by the EPA is now subject to discrimination and firing in retaliation for their testimony. As well, they are now forbidden any recourse against said retaliation, including being able to sue.

By mary in hawaii (not verified) on 06 Sep 2006 #permalink

Hi M in H. Its not a misintepretation. The final line of the AAG's opinion is that the W. blower was found to not have the right to compensation for the 225K is all. It doesnt remove the right to appeal, because thats the law. I doesnt remove the right for other whistleblowers to reach for it, because thats the law. If its held later under appeal that the AAG is right or wrong, then thats the law. No one has removed the right to blow the whistle, only in this case that they have to positively prove that one is entitled to compensation for it. It specifically says that the conclusion by some really hard to understand logic that it does not rise to the level of compesnation. It STILL provides the reliefs and remedies as afforded, only that the person in question isnt entitled to any money but all other provisions are still in effect. It STILL will have to stand the test in law. She has to prove that by blowing the whistle that it would have improved the quality and condition of the water. Didnt happen. I looked her complaint up. Its like saying that because of a minor violation that she blows the whistle on, that she would have said that refineries were polluters. Duh! Yeah, we know that.

As for her personal fortunes going up or down, they would be big time bad stupid to keep her from promotions and the such. Now that is actionable and in State and Federal Court-discrimination, harassment, physical and sexual, recriminations. Man now thats something that an attorney can get his teeth in.
Retaliation? She would have a case in an instant and that is already founded in about 50 years of common and statutory law.

Also Mary, you might just have to understand one thing about the Arabs. Its not really the "ARAB" we are dealing with here. It is the Muslim world. The Muslims by definition must convert or kill all the unbelievers by definition of the Koran. Bad for those who want to think for themselves. Fuck dinosaur juice. It doesnt matter, they will just keep right on asserting that they have the right under God to do whatever they think necessary. Kill them all Mary? Okay, lets hear your big plan on how to appease, negotiate or whatever with these people. They are asserting their positions by blowing people up. We are asserting ours. You are defending terrorists?

Most of them if we knocked the crap out of Teheran would fall apart because this is the money pit. But every few years as I have said in the past we would have to tamp them back. You cant sit back and turn on your TV or drive your car and say that you dont agree with this position. By default you do it and by doing so you are funding terrorism. Me too. I dont like it but come up with something viable. I have heard this poor Arab crap for 50 years and its come to naught.

This isnt a science class. Its the killing business. Kill or be killed is where we are heading. Only an idiot would think that we can negotiate with someone who his Hell bent on killing Westerners. You live in Hawaii. What do you think is going to happen if they take down an airliner going into there? HI would fold up like an old tent because the economy would collapse. France's economy took a 3% tumble because of their "Muslim" riots and they got that under control by use of force....The FRENCH used force? Oh my God!

As as to nuking the countries in the Middle East I wouldnt. I would just let them know that I would be doing a little house cleaning in their areas. After a couple of B-1 strikes I think they would get the picture. I would also do it against Saudi Arabia who as it is said sent the boys to do the bidding of a madman. Pakistan yesterday wanted us to give Bin Laden amnesty. To them this made sense? . Okay, another target on the map.

PTL

By M.Randolph Kruger (not verified) on 07 Sep 2006 #permalink

Kruger: first of all, you continue to conveniently omit what that legal opinion states regarding eliminating the whistleblower's protection against retaliation by her employers for coming forth to expose a problem or wrongdoing. That's the key point, not whether she can appeal, whether she can get money, etc. The whistleblower no longer is protected from retaliation, including firing, for the simple fact of blowing the whistle. If she/he is no longer protected from such retaliation, then there is NO case for a lawsuit. What would she sue for? I cited and quoted all of that, yet you continue to obfuscate and ignore that entire part of the issue.

Second, I am just flat out sick and tired of your bigotry and war mongering at every given opportunity. You are basically an unabashed racist who lumps all Muslims into one box and labels them according to your own cardboard caricature of what you believe them to be. You state their Koran insists they either convert us all or kill us all. That is just a flat lie. The Koran states those who don't convert to Islam will burn in eternal Hell at the end times, but it leaves that to Allah. Muslims are not compelled to murder off non believers. If they were, there would certainly be a whole lot more killings than there are...millions of them. You put forth as fact your tunnel visioned view of Muslims, pretending they all have the extremist viewpoints held by only the most radical militant fundamentalist sects... That is about as accurate and fair as saying that all Christians are neo-con born again fundamentalist flag waving "Kill a commie/Muslim for Christ" types who believe in Creationism, the Rapture and that God is on the side of Bush and all Muslims are Satan's evil doers. What a load. Sadly you seem unaware of your own prejudices, you can't seem to imagine any other way to resolve things than kill or be killed, and really seem to sincerely believe that anyone who thinks differently is just too stupid and unrealistic to see "the truth". But I tell you what, do not do the sexist condescendension number on me, intimating that I am just the ignorant "little woman". You say "What would happen if those western hating Muslims took down an airliner going to Hawaii..oh, the whole economy of the state would collapse." From the loss of one airliner? What utter bullshit. Where do you come up with this stuff? I guess you really buy into Bush's "they hate us because we're free" rationale, huh? If I seem to personally attack you, Randy, it is because in my opinion you purposely mislead people, you pretend to know it all, parading around as if you have all the inside data, selling hate and fear as if it's the only intelligent response. But I've begun to feel more and more certain it's all a pack of lies. In the case above, I found the lies. In other cases, I can't because you never once back up things you say with any reference that can be verified, so I have to wonder what you are really up to.

By mary in hawaii (not verified) on 07 Sep 2006 #permalink

First of all Mary, I dont think I have ever called anyone a name here. Watch your mouth or I will unload on you. Dont call me a bigot or a racist as you would have to prove that. I am a realist and that position is Mary that you appease the tiger, he eats you last but you still get eaten. Who gives a crap whether you think that annihilation of an enemy is right or wrong. I would kill them all if it came down to them or one American, that includes YOU!

On the other hand it seems that you want to defend every little poor sack of crap person on this planet that wants to do us harm with the old rant that the US is always wrong. Second of all you are either ignorant of what is going on in the airline industry or you dont know your own economy in HI. They went down almost 15% in one year in 02/03for something that happened several thousand miles away in NY. Those are documented facts. You think people are going to get onto planes to go to Hawaii if there a large chance that someone will take the plane out of the sky? Thats pretty dumb if you really believe that.

As for the whistleblower. She is still afforded the right to appeal and she is doing that as prescribed by law. And she can all the way to the Supreme Court if she wants. AG opinions are appealed all the time. She isnt out one right, only that she has to prove her case. Its a lawsuit and she has filed it.. You are guilty until proven innocent in a lawsuit. So the government will be guilty in every assertion she makes until a judge rules on it. So far, I havent seen this in court. So what do you think they should do? Just accept it and go on? No. She is also afforded the right to sue if they do fire her in both state and federal court. The AG's opinion hasnt removed anything nor has shee been fired. The AG can only write an opinion and it stands until challenged. I havent heard anyone say that she doesnt have the right to sue if she is terminated either, it is implied by opinion. She will just keep wratcheting it until she either decides to give up or she gets the answer she is looking for. You are pretty quick to jump when its not even in the courts yet. Very strange position, pretty indefensible.

As for your rant about Muslims, Yeah I have heard it all before. Lets see the 200 Marines in Beirut, Lockerbie Scotland, Al Khobar Towers, five embassies in Africa in a day, the Aussies in Indonesia, the American contractor compound in Saudi Arabia, 93 WTC 1, 9/11/2001 WTC 1 and 2-3000 dead. No, they arent trying to kill us Mary... I just must be totally uninformed. I dont have any inside track Hmm. Okay you are allowed your opinion. If mine pisses you off, thats just too bad. But I would like for you to watch your racist remarks. I am an equal opportunity killer. I cull none that would attack this country or its assets, or its people anywhere in the world and that includes you. Funny you should sit in Hawaii and make the statements that you do when a bunch of wild eyed crazies with aircraft carriers on Dec. 7 1941 attacked us without warning and a very debatable provocation. I guess we should have just negotiated with the Japanese too. Nanking China? Non Sequitur.

Pull the plug on this one Revere. This is getting nasty and I can rise to the occasion.

By M. Randolph Kruger (not verified) on 08 Sep 2006 #permalink