Washington, DC — Employees who face reprisal for reporting pollution, public health risks or other environmental violations are finding the Bush administration a major obstacle to relief, according to an analysis released today by Public Employees for Environmental Responsibility (PEER). The record of overseeing anti-retaliation provisions of seven major environmental statutes for current Labor Secretary Elaine Chao has been starkly more anti-whistleblower than that for Clinton’s Secretary Robert Reich.
PEER analyzed all of the decisions by the Labor Secretary’s Administrative Review Board (consisting of three lawyers selected by the Secretary) from 1996 through 2006 under the whistleblower provisions of the Clean Air Act, Safe Drinking Water Act, Superfund, Clean Water Act, Toxic Substances Control Act, Solid Waste Disposal Act and the Energy Reorganization Act (which covers nuclear materials).
The Secretary’s Administrative Review Board (ARB) reviews all recommended decisions by non-partisan administrative law judges reached following a full evidentiary hearing. Under Secretary Chao, a much higher percentage of these hearing verdicts are overturned to the detriment of the whistleblower:
- Reversals of pro-environmental whistleblower verdicts rose 250% during the Bush years. In 2004 alone, Sec. Chao’s ARB reversed three times as many pro-whistleblower decisions as were reversed in four years of the Clinton administration;
- Fewer than 3 out of 10 pro-whistleblower decisions were upheld under Bush compared with 7 out of 10 affirmed under Clinton; and
- From 2004 to 2006, Sec. Chao’s ARB reversed 10 out of 11 pro-whistleblower decisions.
“After environmental whistleblowers prove their case before a judge, the Bush Labor Department comes along to pluck defeat out of the jaws of victory,” stated PEER Staff Attorney Adam Draper, who prepared the analysis. “As a result, environmental whistleblower laws are becoming dead letters offering almost no hope of delivery.”
In whistleblower cases involving public employees, Secretary Chao’s ARB is erecting new barriers, such as invoking the doctrine of sovereign immunity (based on the old English common law principle that “The King can do no wrong”), to bar federal employee claims. In another case, ARB rulings against a National Park Service employee have been unanimously overturned twice by the conservative U.S. Courts Court of Appeals for the Fourth Circuit, only to have the ARB rule a third time against the park whistleblower.
“It is getting ridiculous how hostile the Labor Department has become to worker rights,” Draper added. “For whistleblowers to win a case before the Labor Department they must be prepared to run a multi-year marathon through a gauntlet of jurisprudential gibberish.”