Ruling may have chilling effect on whistle-blowers

Labor Department document says laws may not protect all against retaliation.
By David Goldstein - Mcclatchy Washington Bureau

Last Updated 12:21 am PDT Saturday, May 19, 2007
Story appeared in MAIN NEWS section, Page A6

WASHINGTON -- The sentence was buried deep within a recent Labor Department ruling, but the message was clear: Whistle-blowers, beware.

More specifically: Whistle-blowers relying on the protections against official retaliation contained in several major environmental laws, proceed with caution.

The sentence was in a footnote at the end of a ruling against a federal whistle-blower. It said the Labor Department recognized only the protections written into the clean air and solid waste-disposal acts, not laws governing clean water, drinking water, toxic substances and hazardous waste.

"This is the latest attack in a systematic war to gut the environmental whistle-blowers' statutes," charged Tom Devine, the legal director of the Government Accountability Project, a nonprofit watchdog group.

The Labor Department has jurisdiction over environmental whistle-blower cases. Steven Mandel, an associate solicitor for the department, said it took those complaints "very seriously."

"I do not believe there has been any change in policy or practice in this area," he said. "We think we do a very effective job protecting whistle-blowers."

Whistle-blower advocates, however, view the footnote as more proof that the Bush administration makes it harder to expose problems in enforcing environmental laws.

In 2005, the Justice Department said the Clean Water Act's whistle-blower protections were invalid.

The Environmental Protection Agency has said in court papers involving another case that it doesn't recognize the protections in any of the six major environmental laws.

That was underscored this past week. Asked about those protections, the EPA said in a statement that it supported whistle-blower protections passed in 1989 and in 2001 that cover all government agencies. But the agency didn't mention the safeguards in the laws that it administers.

Several federal scientists and other environmental experts said government employees would be less likely to speak out if demotions, pay cuts and other types of reprisals were to be the result.

"If you're an employee, it has a very chilling effect," EPA whistle-blower Cate Jenkins said.

An EPA scientist, Jenkins has claimed that the agency downplayed the health dangers of the dust around the World Trade Center after 9/11.

The list of environmental concerns that whistle-blowers have exposed is long. It includes pesticide testing on infants, leaking underground storage tanks, arsenic in drinking water and the threat of mercury contamination in food.

"When there are obvious problems, employees need to be able to go to the (Capitol) Hill or go to the media and talk about it," said Bill Hirzy, an EPA chemist who's a union official for agency employees.

Even environmental-movement critic Bonnor Cohen, who charged that its supporters "engage in shameless scare campaigns," said whistle-blowers needed better shields.

All federal employees have whistle-blower protections under the 1989 Whistleblower Protection Act. But employee disclosures under the law must meet very specific requirements for the protections to apply.

They must show, for instance, an imminent danger to public health or safety.

At issue is the Bush administration's view that since the government has "sovereign immunity" -- individuals can't sue it unless it agrees to be sued -- only Congress can waive that immunity, and it hasn't done so with all the environmental whistle-blower laws. If true, an employee can't sue the government for lost wages or other punitive measures that might have been taken as a result of the employee's speaking out.

The footnote in the Labor Department ruling said Congress had waived sovereign immunity only for the clean air and solid waste laws. But there appears to be a dispute within the department about whether other laws also could be covered.

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* The McClatchy Washington Bureau's David Goldstein can be reached at (202) 383-6080 or dgoldstein@mcclatchydc.com.