ENVIRONMENT LAWS MAY NOT BLUNT HIGH COURT
WHISTLEBLOWER RULING
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Date:
The recent Supreme Court opinion rejecting First Amendment
claims for public employees who act as whistleblowers combined with ongoing
Bush administration efforts to eliminate special whistleblower protections
contained in environmental statutes may discourage EPA staff from discussing
misconduct with supervisors, observers say. They note that although many
environmental statutes are designed to shield EPA employees from retaliation,
those protections may be inadequate in light of the ongoing assaults.
One source points
out that statutes such as the Clean Air Act and Clean Water Act provide, for
now, broader employee rights to free speech when revealing wrongdoing to
supervisors, but warns that unless the trend of eroding such protections is
reversed, “We will have to be reconciled to a bureaucracy of yes people.”
The high court’s
5-4 ruling in Garcetti et al. v. Ceballos May 30 marks the first
decision the court has issued in a case it reconsidered following the
retirement of Justice Sandra Day O’Connor. Her replacement, Justice Samuel
Alito, sided with conservatives in reversing the long-held precedent that
public employees enjoyed constitutional protections when speaking out as part
of their job.
“We reject,
however, the notion that the First Amendment shields from discipline the
expressions employees make pursuant to their professional duties. Our
precedents do not support the existence of a constitutional cause of action
behind every statement a public employee makes in the course of doing his or
her job,” Justice Anthony Kennedy wrote for the majority. Relevant documents
are available on InsideEPA.com.
The decision sparked
outrage from public employee advocates, including the National Treasury
Employees Union (NTEU), which represents many EPA employees.
NTEU had filed an
amicus brief in the case, urging the justices to protect employee
speech. “Again and again, public employees, armed with their specialized
expertise and data or other insights resulting from their work, have served the
public interest by exposing wrongdoing or waste of government funds and by
presenting unpopular but objectively sound conclusions and opinions. . . . This
speech is entitled to constitutional protection.”
NTEU argues
against the “artificial distinction” made between “citizen speech” and
“employee speech,” but the high court endorsed such a distinction.
The court found,
“Two inquiries guide interpretation of the constitutional protections accorded
public employee speech. The first requires determining whether the employee
spoke as a citizen on a matter of public concern. . . . If the answer is no,
the employee has no First Amendment cause of action based on the employer’s
reaction to the speech.”
In response to
the decision, NTEU said in a statement that it would have a “chilling effect on
the ability of public employees at all levels of government to speak out on
matters of public interest.” NTEU President Colleen Kelly added, “When the
voices of dissenting scientists, doctors, lawyers, financial or law enforcement
professionals serving the public are silenced, the American people will
ultimately suffer.”
While employee
advocates and legal experts acknowledge the opinion does not directly affect
many EPA employees, it does remove the employees’ ability to cite the First
Amendment as a whistleblower defense should they claim they were retaliated
against.
One legal expert
says, “The decision takes away the First Amendment defense in any claim,
regardless of other [protective] statutes.” Employees would be “stuck” with
using other statutory remedies, which are also under attack by the Bush
administration and the courts, the source notes.
A source with the
For example, the
Administrative Review Board (ARB) at the Department of Labor is considering a
case, Erickson v. EPA, in which the Bush administration is seeking to
remove the special whistleblower protections under the environmental statutes. EPA
filed a brief last fall arguing that sovereign immunity prohibits federal
employees from suing the government under environmental statutes. That brief
follows an earlier ARB ruling finding that the environmental statutes’
whistleblower protections do not extend to state employees (Inside EPA,
Jan. 20, p14).
The Department of
Justice (DOJ) filed an amicus brief in the Garcetti case urging
the court to find against the employee, Richard Ceballos, who worked as a
deputy district attorney in
DOJ has also
opposed legislation in the House and Senate that would clarify that employees
covered by the Whistleblower Protection Act enjoy First Amendment protections
for their official duties. The legislative effort is seeking to respond to
earlier court rulings that have limited employees’ speech.
A source with the
Government Accountability Project, which advocates free speech rights for
public employees, says that despite bipartisan passage of the bills by the
relevant committees in the House and Senate the past two years, congressional
leadership has not allowed the legislation to come to a floor vote due to DOJ
opposition.
A source with
Public Employees for Environmental Responsibility (PEER) adds that the
environmental statute protections are already limited in terms of the employees
they protect. For example, PEER is arguing in a case pending before the U.S.
Court of Appeals for the 9th Circuit that the public employees of the
A district court
ruled in the case, National Wildlife Federation et al,.
v. National Marine Fisheries Services et al., that
the Bush administration had to increase water flows from hydroelectric dams to
protect the salmon, in part based on the scientists’ findings. That prompted
protests from Sen. Larry Craig (R-ID), who last year successfully included
language in an appropriations bill cutting funding for the
The PEER source
notes, “We have pending First Amendment litigation before the circuit, but we
are seriously rethinking” our arguments in light of Garcetti.
PEER and other
sources note that the ruling will likely prompt a host of litigation over what
constitutes official duty, and may also persuade public employees to take their
concerns directly to the media, rather than seeking to warn supervisors.
A Public Citizen
attorney who litigated the case says the decision “creates a perverse incentive
for employees to go public first with their information.” But the attorney adds
that the employee could still suffer retaliation for such action.
Source: Inside EPA via InsideEPA.com
Date:
Issue: Vol. 27, No. 22
© Inside