Whistleblowers have provided environmental reporters with many good public-interest stories. But a new move by the Labor Department would in effect nullify provisions in at least half a dozen basic environmental laws that protect whistleblowers against reprisal.
If the move - still tentative - succeeds, reporters can expect only silence from all but the most courageous employees who might have information about agency fraud, waste, abuse, or mismanagement.
It arises in the case of Sharyn Erickson, an EPA Region 4 employee who found fault with the way Superfund contracts were being written. She won a decision from a Labor Dept. administrative law judge awarding her damages for EPA reprisals after her whistleblowing.
One foundation of Erickson's case was the whistleblower protection provisions written individually into almost all of the basic laws that EPA administers: Superfund, Safe Drinking Water Act, Toxic Substances Control Act, Clean Water Act, and Resource Conservation and Recovery Act, and the Clean Air Act.
But on June 30, 2005, a Labor Dept. Administrative Review Board issued an order inviting government lawyers to try to overturn that ruling. That order was unusual in two respects. First, the invitation was initiated by the Review Board, not simply the parties in the case. Second, the Review board suggested that the whistleblower provisions of major environmental laws did not abrogate the federal government's sovereign immunity to lawsuits.
Sovereign immunity against environmental whistleblower complaints had proved a "dead issue" after decades of litigation by EPA whistleblowers had largely failed to sustain it, according to Public Employees for Environmental Responsibility (PEER) - a whistleblower protection group.
Parties were given until Sept. 13, 2005, to file briefs on the sovereign immunity issue.