WASHINGTON - May 1 – The Bush administration has declared itself immune from whistleblower complaints filed by federal workers under the Superfund law and the Safe Drinking Water Act, according to legal documents released today by Public Employees for Environmental Responsibility (PEER). As a result, federal workers will lose protection against official retaliation for reporting cleanup failures, enforcement breakdowns or manipulation of science relating to contamination of water supplies or toxic pollution.
This latest action was buried in a footnote of a legal ruling issued by the U.S. Labor Department on March 30, 2007 in a whistleblower case involving a scientist from the U.S. Environmental Protection Agency (EPA). It expands upon a ruling last year that federal employees may no longer pursue whistleblower claims under the Clean Water Act – a ruling based upon an unpublished Administration legal opinion.
The Bush administration legal stance is rooted in the doctrine of sovereign immunity based on the old English maxim that “The King Can Do No Wrong.” Sovereign immunity is an absolute defense to any legal action.
“Federal workers who are working to clean up pollution should not be penalized for their pains,” stated PEER Senior Counsel Paula Dinerstein, who is now litigating against the Labor Department’s earlier ruling before the 11th Circuit U.S. Court of Appeals in Atlanta. “This bald assertion of immunity is both legally unsupported and the precise opposite of the direction in which we as a nation should be heading.”
The new Labor Department immunity stance most directly affects the 16,500 EPA employees who administer the Safe Drinking Water Act and the Comprehensive Environmental Response, Compensation, and Liability Act, known as Superfund. Another 150,000 federal employees who work in natural resource agencies are also impacted.
The official EPA position is that absolutely no environmental laws protect its employees from reprisal for good faith efforts to enforce or implement those laws. The Labor Department ruling does not go that far, however, noting that Congress has only explicitly waived sovereign immunity under two environmental laws: the Clean Air Act and the Solid Waste Disposal Act. Consequently, Congress can undo the new Bush administration assertions of sovereign immunity simply by clarifying these laws.
The net result of these developments is that four of the six federal environmental laws with whistleblower protections would be off-limits to federal employees. As with its decision last fall striking down Clean Water Act protections for federal workers, the Labor Department action reverses nearly two decades of precedent.
“The reason these whistleblower provisions are so important is that they protect federal scientists and other specialists against retaliation for doing their jobs,” Dinerstein added. “On controversial issues, the professional staff at EPA should have some kind of assurance that they will not be sacrificed for being right on the public health merits but wrong on the politics.”
Curiously, the footnote asserting expansion of sovereign immunity was not a factor in the Labor Department ruling against the EPA scientist, David Lewis. Therefore, any legal challenge will have to be taken up in a different case, leaving the matter in legal limbo until it is resolved by either Congress or the courts.
Read the footnote from the Labor Department Administrative Review Board
Revisit this fall’s ruling on sovereign immunity under the Clean Water Act
See the full decision (Lewis v. EPA, 2003-CAA-5 & 6, ARB No. 04-1117) containing the footnote