New Whistleblower Protection Law
by Audrey Haynes
But some protections may be challenging to implement, they caution
Last month President Obama signed the Whistleblower Protection Enhancement Act into law. The law revamps protections for federal employees who come forward and report misconduct, abuse of authority, or violation of law in their workplaces. These enhancements could be crucial in advancing environmental issues, but only if implemented properly.
"Protecting federal employees with the courage to come forward -- at the risk of their own careers -- to report waste, fraud, and abuse that they have witnessed is an important cornerstone of good and effective government," said Congressman Todd Platts (R-Pennsylvania) in a statement. Platts, along with Representatives Darrell Issa (R-California), Elijah Cummings (D-Maryland), and Chris Van Hollen (D-Maryland) introduced this version of the legislation into the House earlier in 2012, where it passed unanimously, representing a remarkable and rare bipartisan effort.
"This reform took thirteen years to pass because it can make so much difference against fraud, waste and abuse. Government managers at all levels made pleas and repeatedly blocked the bill through procedural sabotage. But once there were no more secret 'holds,' the WPEA passed unanimously, because no politician in a free society can openly oppose freedom of speech," Tom Devine, legal director of the Government Accountability Project said in a statement.
Whistleblower protections laws were implemented in the 1970s, however, courts' stingy interpretations of the protections have rendered them inadequate. More than 200 whistleblower cases have come before the federal appeals court since 1994, when whistleblower law was last strengthened. Only in three cases did the whistleblower prevail.
"There's been steady erosion of whistleblower rights," says Tony Corbo, a senior lobbyist at Food and Water Watch, an agriculture industry watchdog group. "Courts have really narrowed the scope of how a whistleblower could be protected."
In one case, the federal appeals court stated that an employee must have "irrefragable proof" that the agency was not acting in good faith, a nearly impossible standard for any whistleblower to meet. Case law dictated that whistleblower rights did not apply if the employee was not the first to report the misconduct, had spoken about the misconduct to someone else prior to disclosure, or divulged information directly related to their job duties.
Whistleblower protections deteriorated to the point where fear of retribution inhibited employees from speaking out, rendering the law effectively useless. The new law closes these judicially created loopholes.
Many environmental groups, including the Union of Concerned Scientists, Forest Service Employees for Environmental Ethics, Public Employees for Environmental Responsibility, and Food and Water Watch, fought for the legislation.
"The bill further extends whistleblower status to scientists who expose censorship of federal information that is either crucial to public health and safety or required by law or regulation," Celia Wexler, senior Washington representative at the Union of Concerned Scientists, said in a statement. Corbo of Food and Water Watch says the legislation will help promote food safety: "You oftentimes have food inspectors who are afraid to come forward if they know that there is something wrong and their supervisors are allowing unsafe practices in some of these plants that they inspect."
Inspectors who aren't afraid to blow the whistle can expose serious health risks. Kenneth Kendrick, a former assistant plant manager at Peanut Corporation of America (the company at whose plant the 2009 salmonella outbreak originated) repeatedly reported incidences of rat infestation to the Texas Health Department in 2006. Phyllis McKelvey, a former USDA inspector, is currently protesting a new program for inspecting chickens. McKelvey worked in the program's pilot plant which churned out poultry products covered in feces, pus and scabs, she says in her online petition.
The new law will give inspectors "more protection in terms of bringing forth that kind of information without fear of retribution, says Corbo. Or if supervisors do come after them, there are now due process procedures built into this law where they will have a good shot at prevailing."
Andy Stahl, Executive Director of Forest Service Employees for Environmental Ethics, similarly cites protection from censorship of disclosures as the new law's "most environmentally significant reform."
"It is not uncommon for specialists to have their analyses changed, watered-down, distorted, etc., by higher-ups in the agency who don't want to hear the bad environmental news. Before this law, these specialists had little choice but to swallow hard because of the risk of retaliation for speaking out. The new law would bar retaliation against an employee for disclosing such attempts at censorship of technical analyses," Stahl says.
Stahl says that the reforms will have the greatest impact around laws such as the Endangered Species Act and National Environmental Policy Act, which rely on substantial technical analysis of the environmental effects of federal actions.
Fear of punishment is unfortunately common among federal scientists. In a 2011 survey by The Union of Concerned Scientists of US Food and Drug Administration scientists about one-quarter of nearly 1,000 respondents felt that they could not "openly express any concerns about the mission-driven work of [their agency] without fear of retaliation." Many also said that political and business interests unduly influence science and regulatory decisions.
Their concerns are not unfounded.
Paul Houser, a hydro-meteorologist and science advisor to the US Bureau of Reclamation, raised concerns about the scientific accuracy of a report on the environmental effects of potential dam removal on the Klamath River, which would ultimately inform policy decisions on the river's management. The report was ultimately changed, but two weeks later Houser was placed on probation and terminated within a year. Although Houser was specifically hired as a "Scientific Integrity Officer," his reprisal sent a clear message from the agency.
Houser, represented by Public Employees for Environmental Responsibility (PEER), filed a complaint under the Whistleblower Protection Act. His case was resolved last week. PEER is hopeful about the new law. "We have worked with many environmental whistleblowers who were not covered under the old law as it was interpreted by the court, but would now be covered. We believe it will be a great benefit to our work," says Paula Dinerstein, attorney and senior counsel at PEER.
Dinerstein does have some doubts though. "The scientific integrity provisions appear to be circular -- they protect disclosures about scientific censorship if they amount to a violation of law, gross mismanagement, danger to public health and safety -- i.e. the requirements for a protected disclosure that are already in the law."
The enhancements do, however, explicitly repeal case law that inhibited these protections.
Dinerstein also points out that under an order from President Obama most federal agencies have recently adopted scientific integrity policies. The process of challenging censorship is streamlined because the agency is now in direct violation of it's own policies.
Stahl additionally points out that these reforms are challenging to implement. "For example, what will happen when a junior scientist says that a government action will harm fish by increasing sediment, but more senior scientists within the agency disagree on the merits of the junior's technical analysis? " Stahl says. "Will the agency be hamstrung in disciplining or removing an incompetent scientist who persists in saying that 2+2=5 no matter how many experts say otherwise."
In the past, courts have dismissed cases like Stahl's example of conflicting science. For example, in a 2001 case biologist Mike Kelly filed a complaint under the Whistleblower Protection Act that his assessment of environmental impacts of an irrigation project on the Klamath River on endangered Coho salmon was significantly altered and weakened. His case was never heard and Kelly was dismissed from the project and eventually resigned from the agency. Of course, PEER (who represented Kelly) suggests foul play but higher-up officials insist that they are relying on the best available science.
Both Dinerstein and Corbo, however, did not believe incompetent junior scientists were a legitimate issue in whistleblower protection, citing alternative pathways in the law. It is clear, however, that such gray areas are dangerous. They allowed courts to narrow the scope of protections in the past and could very likely happen again. How the new whistleblower protection law will fare in future court cases is uncertain but pivotal.
"The original whistleblower laws looked great on paper, but as the years went the courts began to interpret the laws in ways that eventually narrowed the scope of whistleblower protections," Corbo says. "It's something that constantly has to be revisited."
Much of the gray area arises from the idea that science results in an absolute truth. Stahl asserts that Congress is "naïve" in assuming that science is pure and divorced from policy.
"The observation that atmospheric CO2 is increasing and the experiments that demonstrate CO2's greenhouse potential are undisputed. But whether the tar sands should be exploited for their oil or biomass burned for its electricity are policy decisions into which scientists have no unique wisdom."
Of course, it is not the scientist's job to decide whether to drill for oil but rather to explain from an environmental standpoint what drilling for oil means. Stahl does raise a valid point though -- scientists can also have personal agendas and biases that inform their work. Scientists spend a lot of time debating what constitutes good science and standards in any field are constantly changing. The pathway to implementation of enhanced protections is thus similarly fuzzy.
"The mandate for this law is that the truth is the public's business," Devine says. An ideologically sound statement but the problem is that what qualifies as the truth isn't always static.
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