Washington, DC — Newly obtained internal Environmental Protection Agency (EPA) emails published by E&E News reveal that senior legal officials were explicitly warned not to take retaliatory action against employees who signed a public letter raising concerns about agency policies — advice that was disregarded by agency leadership just one day later.

The documents, obtained through a Freedom of Information Act (FOIA) request via E&E News, include a July 2 email from Nathanael Nicols, Assistant General Counsel for EPA’s Employment Law Practice Group. In it, Nicols affirms that EPA employees who signed the public “Declaration of Dissent” letter were likely engaging in protected speech under the First Amendment and cautions that any disciplinary action could carry significant legal risk.

Nicols agreed with prior internal analysis concluding that there were no ethics violations associated with employees signing the letter. He further advised that taking personnel action against signatories could be viewed as retaliatory and risk creating a chilling effect on other employees considering similar expressions.

Nicols warned that any personnel actions in response to this activity “would present significant legal risk,” noting that the employees’ actions would likely be evaluated under the Pickering balancing test — a legal standard used to determine when public employee speech is protected. Under that framework, he explained, employees appear to have been speaking as private citizens on a matter of public concern, placing their speech squarely within First Amendment protections.

Despite this clear legal guidance, EPA leadership placed numerous employees on administrative leave the following day and ultimately took disciplinary action against most signers, including firing at least 14 employees.

“This new evidence makes clear that EPA leadership was not operating in a legal gray area; they were warned,” said Joanna Citron Day, PEER’s General Counsel, who is representing several of the terminated employees who signed the Declaration of Dissent. “Career legal experts advised against retaliation, highlighted the constitutional protections at stake, and flagged the risk of chilling lawful speech. Those warnings were ignored. Any charges or disciplinary actions against these employees should be vacated immediately.”

The letter, signed by EPA employees in their personal capacities, raised concerns about agency decision-making and its impact on public health and environmental protections. Internal emails now confirm that agency lawyers recognized the letter as protected activity and urged restraint in responding.

Legal experts have long held that public employees do not forfeit their First Amendment rights, particularly when speaking as private citizens on matters of public concern. The Pickering v. Board of Education standard requires balancing the interests of the employee in commenting on such matters against the government’s interest in promoting workplace efficiency, an analysis Nicols indicated weighed in favor of employee protections in this case.

“It is not surprising that Nathanael Nicols agreed with Justina Fugh, Director of the EPA’s Ethic’s office, that employees should be protected under the First Amendment,” said Josh Klinger, attorney with Minahan Muther & Klinger, who is representing several of the terminated employees. “Pickering is well established case law from 1968 that created the legal standard used to determine when public employee speech is protected. This First Amendment issue could have been easily resolved by the EPA without any disciplinary action(s) whatsoever. Instead, the EPA chose to retaliate against these employees’ protected speech.”

The newly released emails raise serious questions about whether EPA leadership knowingly exposed the agency to legal liability and undermined fundamental free speech protections for its workforce.

PEER will continue to review the full set of documents and pursue additional transparency regarding the agency’s actions.

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Read the E&E News article

Examine the EPA emails obtained by E&E News

Review PEER’s press release on the illegal firings

PEER protects public employees who protect our environment, natural resources, and public health. We support current and former environmental and public health professionals, land managers, scientists, enforcement officers, and other civil servants dedicated to upholding environmental laws and values across federal, state, local, and tribal governments.