White House Ends Climate Change Gag Order

The Government Accountability Project (GAP), counsel for
EPA and climate change whistleblowers Laurie Williams and Allan Zabel,
sent a letter
to President Obama yesterday thanking the White House for causing the
EPA to withdraw its censorship orders that effectively gagged the two
enforcement attorneys.

Williams and Zabel had challenged "cap-and-trade" as a climate change
solution in their personal capacities by, among other actions, posting
a video on YouTube late last year. The EPA accused them of violating
ethics rules simply by listing and referencing their government
positions and experience to strengthen their credibility.

GAP was particularly impressed that White House Ethics Counsel Norm
Eisen not only intervened in this specific case, but successfully sought
the Office of Government Ethics (OGE) to issue new guidelines against
using ethics rules to gag whistleblowers' noncommercial speech.

After 22 years of intransigence, the EPA also committed to implement
and obey the federal anti-gag statute - requiring agencies to include a
qualifier to nondisclosure policies. The qualifier makes clear that
free speech rights outlined by the Whistleblower Protection Act
supersede any restrictions elsewhere in the policy.

"This victory would not have happened without the White House,"
stated GAP Legal Director Tom Devine. "Most impressive, the
administration delivered on transparency commitments by ending
censorship of those criticizing its own policies. At GAP we're not used
to that kind of leadership."

Rick Piltz, Director of the GAP-sponsored project Climate Science Watch,
emphasized the important role of the White House, stating: "The
culture in federal agencies of inappropriately restricting
communication is dug in. It won't be changed overnight and it won't
change all by itself. It's going to take sustained, hands-on White
House leadership and oversight."

Background

Williams and Zabel have worked at the EPA for over 20 years. Zabel
has two decades' worth of experience assisting EPA oversight of Los
Angeles' cap-and-trade program and California's Clean Air Act offsets.
Last November, under threat of discipline, the EPA ordered Williams and
Zabel to remove a YouTube video they created to share their concerns on
cap and trade. Although their efforts were uncompensated, and they
made clear they were speaking in their own capacity, the agency accused
them of ethics rules violations. Besides threatening discipline, EPA
imposed prior restraint by ordering them to submit future public
communications for advance review. The agency reasoned that the pair
violated conflict of interest rules by exploiting their titles and
experience for personal views.

After Williams and Zabel sought
Administration support, White House Ethics Counsel Norm Eisen's staff
checked with OGE and began discussions with relevant EPA officials.
Those talks led to OGE issuing a government-wide ethics guideline
opinion on 5 CFR 2635.807(b) to instruct agencies that compliance only
requires employees to provide disclaimers that they are speaking for
themselves and not the government, and to include other biographical
details when identifying themselves. OGE explained the rules:

The
purpose of section 807(b)(1) and (b)(2), in conjunction with section
702(b), is to ensure that public is not misled as to whether the views
expressed by an Executive Branch employee in uncompensated teaching,
writing, or speaking are those of the employee or those of the
Government. A too literal parsing of either 807(b)(1) or (b)(2)
divorced from this broader purpose could lead to unnecessarily
restricting employee's rights of free speech and commentary. OGE
believes that when it is clear from the actual language or context of
an employee's teaching, writing, or speaking that the employee is representing personal rather than agency views, the purpose of the specific provisions discussed above has been met. [emphasis added]

EPA then agreed that Williams and Zabel had not violated ethics
rules and lifted restrictions. Freed from censorship, last week they
thanked the President and EPA, while blowing the whistle to Congress on
offsets as part of a cap-and-trade program. Their disclosure can be
found here.