…to their and their use and behoof forever.

Monday the 22 nd , World Water Day, marked the launch of World Water Week 2010 – not a bad time to check in on the liquid state of things here on planet earth. Established during the United Nations Environment Programme's 1992 conference in Rio de Janeiro, World Water Day takes a different theme each year. Last year's was “transboundary waters: sharing water, sharing opportunities.” Before that (2008) was “sanitation,” and before that (2007) was “copinng with water scarcity.” This year, the UN decided to return to a 2008-reminiscent, sanitation-related theme, with “clean water for a healthy world.”

Impossible to separate the issue of water scarcity from the issue of water pollution, of course – if we had bottomless supplies of potable fresh water on earth, if would matter less that we've dirtied most of them – but given our limited supply, it makes sense that the UN is focusing its magnifying glass on cleaning our water up this year. According to the UN, more people are losing their lives today to dirty water than to war and violence, and every 20 seconds, a child dies from water contamination and poor access to clean water.

“Day after day,” read UN Secretary General Ban Ki Moon's statement on Monday, “we pour millions of tons of untreated sewage and industrial and agricultural wastes into the world's water systems. Clean water has become scarce and will become even scarcer with the onset of climate change. And the poor continue to suffer first and most from pollution, water shortages and the lack of adequate sanitation.”

And water contamination isn't just a third world issue. Earlier this month, about 117 million Americans may have seen the glasses of (relatively) clean drinking water swiped right out of their hands. The Clean Water Act, one of our country's most important pieces of environmental legislation, had just been debilitated by a terrifying Supreme Court decision – the court had undermined the EPA's power to regulate where major polluting companies can and can't dump their industrial byproduct and sludge. It was a major step backwards in American environmental legislation, and does not bode well for the future of drinking water quality across our nation. Industrial sludge in drinking water won't take a life as quickly as will a fatal case of diarrhea acquired in Kibera slum, Nairobi, but it can certainly set the wheels in motion.

The wars of the 21 st century will be fought over water, not oil, UN Water Advisor Maude Barlow has been warning for decades. And those wars – some of which have already occurred (Bolivia) or begun – will impact every life on this planet.

August 11, 2009

EPA Must Issue Financial Assurance Regulations Under Superfund, Court Holds; EPA Has Discretion On Timeline

Almost thirty years after Congress instructed EPA to require facility owners and operators to set aside funds for the cleanup of property that may be contaminated by hazardous substances, a federal court in California has held EPA may take additional time to draft and issue the regulations. The court held that while Congress required EPA to issue such regulations, it granted EPA some discretion in when to do so.EPA has stated that it intends to require financial assurance for hardrock miningfacilitiesfirst, and will also assess the need to regulatehazardous waste generators, hazardous waste recyclers, metal finishers, wood treatment facilities, and chemical manufacturers.

The regulations at issue are required under the federal Superfund law, the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”),passed in 1980. The statute is commonly said to have been motivated by the notorious hazardous waste contamination discovered buried at Love Canal, NY. Section 108 of CERCLA requires EPA to issue financial assurance requirements for certain types of facilities, based on the risk of injury from hazardous substances in operations at those facilities. The regulations, once issued, would require the operator of a covered facility to set aside funds or otherwise make funds available for a possible future cleanup of hazardous substances at the property. Without such funds, costly cleanups may force potentially responsible parties into bankruptcy leavingtaxpayerswith the bill, or lengthylitigation may ensueover the allocation of costs. EPA was first required to publish a notice of those classes of facilities which presented the “highest level of risk of injury” by December 11, 1980.CERCLA §108(b)(1).

The December 1980 deadline passed, without EPA publishing the required notice. The statutory requirement languished, until in recent years it received renewed attention. EPA was sued in federal court in 2008, on the theory that EPA had failed to perform a non-discretionaryduty under CERCLA. The suit was brought under to CERCLA's citizen suit provision, which allows a private litigant to force non-discretionary agency action. In February 2009, the Northern District of California held in Sierra Club v. Johnson (N.D. Cal. No. C 08-01409) (“ Johnson “), that EPA had a mandatory duty to publish classes of facilities which presented the greatest risk of injury. In July, 2009, EPA published a notice these classes offacilities in the Federal Register, pursuant to the court's order. In its notice, the agencydeterminedthat it would promulgate the first financial assurance requirements for hardrock mining facilities, based on the extent of contamination from such facilities, and the high costs of cleanup.

EPA did not limit its inquiry to hardrock mining; the notice also stated that EPA will examine the need for financial assurance at the following types of facilities: “hazardous waste generators, hazardous waste recyclers, metal finishers, wood treatment facilities, and chemical manufacturers.” 74 Fed. Reg. 37,219. EPA states that it intends to publish a notice of this “second wave” of types offacilitiesby December, 2009. Id.

However, the Northern District of California held that EPA is under no date-certain deadline to issue the financial assurance requirements. Instead, the court held, “that although Section 108(b) requires EPA to promulgatefinancial responsibility regulations and incrementally impose such requirements, Section 108(b) provides EPA with discretion as to when to promulgate such regulations. Unlike the duty topublish notice of classes, Section 108(b) does not include a date-certain deadline for thepromulgation of financial responsibility regulations …” Johnson , Order , at 4-5 (Aug. 5, 2009). In so doing, the court rejected “a bright line rule that only duties withdate-certain deadlines are non-discretionary for the purpose of citizen suits under CERCLA,” and instead looked to legislative history to help determine whether EPA's duty to promulgate regulations by a particular date was non-discretionary. Id . at 5.

To maintain a claim that EPA has “unreasonably delayed” its duties under CERCLA, the court held that plaintiffs may continue to press their claims under another statute, the AdministrativeProcedureAct (APA), but must do so in another court. The court stated, “plaintiffs may bring an APA claim inthe Court of Appeals for the D.C. Circuit alleging EPA unreasonably delayed in promulgating thefinancial responsibility regulations required under Section 108(b).” Id . at 6. Unless and until such alitigationis brought and decided, the timeline for financial assurance requirements under CERCLA will remain unclear.

• Read the initial court decision in Sierra Club v. Johnson (pdf)
• Read the latest order in Sierra Club v. Johnson (pdf)
• Read EPA's Federal Register Notice regarding classes of facilities under CERCLA 108 (pdf)

  For Immediate Release: November 23, 2009
  Contact: Kirsten Stade (202) 265-7337

  EPA SHOWCASE COMMUNITY FUNDS NEVER REACH COMMUNITIES — Environmental Justice $ Limited to EPA Regional Offices in Bureaucratic Shuffle

  Washington, DC — Two days after issuing a press release touting its “Environmental Justice Showcase Communities” initiative, the U.S. Environmental Protection Agency sent an internal “clarification” that funds are not meant for target communities, according to an e-mail released today by Public Employees for Environmental Responsibility (PEER). Instead, the money will be split among EPA regional offices.

  The episode raises doubts about the substance behind vows by Obama appointees to meaningfully revive environmental justice policy launched under the Clinton administration to address inequitable pollution impacts and environmental burdens afflicting disadvantaged communities, racial and ethnic minorities.

  In the November 17, 2009 EPA news release, “Administrator Lisa P. Jackson announced a national initiative to address environmental justice challenges in 10 communities”: Bridgeport (CT), Staten Island (NY), Washington, D.C., Jacksonville (FL), Milwaukee (WI), Port Arthur (TX), Kansas City (KS and MO), Salt Lake City (UT), Los Angeles (CA), and Yakima (WA). The release strongly implies that the $1 million in Showcase Community funds would actually go into the targeted communities, concluding with:

  “Since 1994, EPA has provided more than $32 million in general funding to more than 1,100 community-based organizations.”

  On November 19, 2009, Kent Benjamin, Associate Director of the EPA Office of Environmental Justice (OEJ), sent an e-mail to agency officials citing “misrepresentations in the media” and “confusion” that required “points of clarification,” including:

  • “The EJ Showcase Communities Project is NOT a GRANT program. It is a reprogramming of funds from OEJ Headquarters to the regional EJ program efforts.”
  • Merits of community selection are murky: “There is concern and curiosity about how the project locations were selected. I would encourage you to either include the description of your decision making process in your implementation plan or attach it to the previously completed plan” and
  • Planned accomplishments remain unclear: “OEJ and EJ Showcase Communities priorities team will provide feedback on proposed funds usage to encourage consistency among the range of possible uses.”

  “Contrary to the official spin, not a dime of this environmental justice funding is guaranteed to reach a single Showcase Community,” stated PEER Executive Director Jeff Ruch, noting that EPA failed to issue a clarifying news release. “This program suggests that EPA still operates under the paternalistic attitude that it knows what is best for neighborhoods suffering from past failures of pollution control.”

  In her seminal statement of the central role of environmental justice this July, Administrator Jackson said:

  “In the years ahead, I want to see a full-scale revitalization of what we do and how we think about environmental justice. This is not an issue we can afford to relegate to the margins. It has to be part of our thinking in every decision we make….My friends, the EPA is once again guided by a broad vision of public health protection and environmental preservation. Environmental justice is central to that vision.”

  “Despite the rhetoric, environmental justice remains on the periphery of EPA decision-making,” added Ruch. “Too much environmental justice activity at EPA thus far has been more process but no product – and certainly too little real support for communities bearing the brunt of environmental injustice.”

• For Immediate Release: December 10, 2008
  Contact: Kirsten Stade (202) 265-7337

  EPA DESECRATING NATIVE ARTIFACTS ON SUPERFUND SITES — Widespread Noncompliance Wipes Out Invaluable Prehistoric and Cultural Heritage

  Washington, DC — The U.S. Environmental Protection Agency is needlessly destroying irreplaceable artifacts at hundreds of toxic clean-up sites across the country, according to a complaint filed today by Public Employees for Environmental Responsibility (PEER) with the EPA Office of Inspector General. The complaint details how EPA and its contractors routinely shrug off required site surveys before they begin to blast or excavate, destroying significant historic and prehistoric cultural resources in the process.

  The PEER complaint focuses on one recent Superfund clean-up of an old mine on the Elem Indian Colony reservation in northern California's Lake County. In that 2006 operation, EPA –

  • Began work without any site survey to determine whether it had historic or cultural significance;
  • Ignored a complaint from tribal officials; and
  • Destroyed more than $50 million in archaeological treasures

  “These are not emergency operations that preclude consultation and study before opening up a trench,” stated PEER Counsel Adam Draper, who filed the complaint. “There is no reason why EPA, of all agencies, cannot obey basic resource protection laws.”

  In addition to the Elem site, the PEER complaint points to similar violations ranging from Oklahoma to the island of Saipan. In some instances, EPA has disturbed human remains as well as historic and prehistoric resources.

  “We believe that what EPA did in California is not an isolated incident but is part of a pattern that is taking place in hundreds of locations across the country,” Draper added. “EPA digs first and does not even bother to ask questions later.”

  PEER is asking the Inspector General to –

  • Review what happened on the Elem Indian Colony, identify the responsible agency officials and determine whether compensation should be paid;
  • Survey other EPA Superfund operations to develop an authoritative estimate as to how widespread agency noncompliance is with historic preservation laws and its own Superfund regulations; and
  • Recommend steps that would minimize EPA violations.

  “We want the Inspector General to find out why the Environmental Protection Agency is not also protecting our cultural and historic heritage,” Draper concluded.

• For Immediate Release: August 20, 2008
  Contact: Kirsten Stade (202) 265-7337

  EPA ELBOWS CORPS ASIDE TO PROTECT WESTERN RIVERS — L.A. and Santa Cruz Rivers Will Benefit from Clean Water Act Safeguards

  Washington, DC — In a move to protect Western rivers, the U.S. Environmental Protection Agency has taken jurisdiction away from the U.S. Army Corps of Engineers to determine whether two rivers are covered by the Clean Water Act, according to documents released today by Public Employees for Environmental Responsibility (PEER). The action by EPA effectively trumps recent steps by the Corps to severely diminish Clean Water Act federal safeguards in the Los Angeles and Santa Cruz river systems.

  In an unusual letter sent this past Sunday, August 17, EPA Assistant Administrator Benjamin Grumbles informed his counterpart overseeing the Corps, Assistant Army Secretary John Woodley, that –

  “I am designating the Los Angeles and Santa Cruz Rivers as Special Cases…and therefore EPA Headquarters will make the final determination of their jurisdictional status under the CWA [Clean Water Act].”

  At the urging of the National Association of Homebuilders, the Corps had in recent weeks sent signals that it would radically narrow its standard for whether rivers that flow intermittently should be protected:

  • In June 2008, the Corps declared only a small portion of the L.A. River to be a Traditional Navigable Waterbody (TNW), thus signaling that the bulk of the river and all its tributaries might not be covered by the Clean Water Act; and
  • In July 2008, the Corps suspended its previous decision to designate parts of the Santa Cruz River in Arizona as a TNW. Under the standards proposed to the Corps, fully 96% of all of the surface waters in the state of Arizona would very likely lose Clean Water Act protections that have been in place for the past thirty years.

  “It is refreshing to see EPA show some spine on a politically charged pollution issue,” stated PEER Executive Director Jeff Ruch, noting that Clean Water Act prevents the rivers from being eliminated through fill and prohibits dumping of sewage and toxic materials as will as run-off from construction sites and streets. “The reverberations from this action extend beyond these two rivers.”

  The EPA action removes the Corps from making the determination as to what waters in these river systems will retain their long standing Clean Water Act protections. EPA now will be the agency that defines which waters keep and loose CWA protections. Until EPA makes their final determination there is no guarantee how much of these two watersheds will retain CWA protections, but it is highly unlikely that EPA would have intervened if it agreed with the Corps.

  Navigability is one of the thorny issues created by a 2006 U.S. Supreme Court decision (U.S. v Rapanos) that the Bush administration is using to cut back protections for wetlands and other vital waters. Congress is currently debating legislative remedies to return Clean Water Act protections to what had been historical protected under the Act. In an August 7 letter, two of the leading reform sponsors, Rep. Henry Waxman (D-CA) and James Oberstar (D-MN) demanded the Corps explain their threatened rollbacks, writing that the agency had seemingly acted in an “ad hoc manner, seemingly subject to complete reversal of suspension without any clear and objective standards” that may be “in contravention with the law” and which “undermines federal and state efforts to ‘restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'”

  “Cleaning up the Clean Water Act is high on the agenda for Congress,” Ruch added.

• For Immediate Release: August 14, 2008
  Contact: Kirsten Stade (202) 265-7337

  STRING OF EPA LEGAL LOSSES ON EVERGLADES NO FLUKE — Latest Stinging Court Ruling Cites EPA Regional Office Clean Water Abdication

  Washington, DC — A long series of federal court rulings that the U.S. Environmental Protection Agency (EPA) has been derelict in protecting the water quality of the Everglades is prompting calls for a probe of the agency's regional operations. The most recent federal court decision takes EPA to task for repeatedly violating the very Clean Water Act that it is supposed to administer.

  On July 29, 2008, Miami U.S. District Judge Alan Gold excoriated EPA, finding that the agency had shirked its duty to enforce basic water quality standards and, in so doing, “violated its fundamental commitment and promise to protect the Everglades” and “acted arbitrarily and capriciously.” This is only the latest in a long series of cases stretching back more than a decade that have all gone against EPA.

  Two organizations, Public Employees for Environmental Responsibility (PEER) based in Washington, D.C. and the Council of Civic Associations, based in Lee County, Florida, are today asking EPA's Office of Inspector General to find out why the agency has been so derelict in its duties on both the Everglades and water quality issues throughout Florida.

  “Federal judges appointed by both Republican and Democratic administrations have repeatedly found EPA guilty under the highest standard in civil jurisprudence which cannot be explained away as mistakes or misunderstandings,” stated PEER Executive Director Jeff Ruch. “We want to know specifically who at EPA is responsible and why they are still on the public payroll.”

  EPA finances and is supposed to oversee the State of Florida's clean water program, but EPA has almost uniformly deferred to the state even when the state's actions have been clearly wrong. Meanwhile, restoration of the Everglades, the largest public works project on the nation's docket, revolves around restoring water quality, but official missteps have the mega-project mired in delays and uncertainty.

  The upshot of EPA maladministration is that Florida waters, especially in the southern portion of the state, are in perilously poor shape. Algal blooms, fish kills, saltwater intrusion and drinking water emergencies are becoming ever more common. Changes in weather patterns that affect water supply only magnify the importance of keeping the remaining supplies unpolluted.

  “Unfortunately, it is common knowledge in South Florida that EPA regional managers will do everything possible to accommodate the state and the only way to get them to enforce the Clean Water Act is to sue them – which is a very sad commentary,” commented Ann Hauck of the CCA. “The bottom line is that the Everglades continues to deteriorate. According to EPA Region 4's own recently released Everglades Assessment Report, the area of the Everglades negatively impacted by discharges from the Everglades Agricultural Area has increased under the current Region 4 management.”

  A review by the EPA Inspector General would help inform the next administration about what changes are needed in the EPA Southeastern Regional Office (region 4), based in Atlanta, which is responsible for Florida.

• For Immediate Release: March 3, 2008
  Contact: Kirsten Stade (202) 265-7337

  GROWING NO CONFIDENCE CHORUS CONFRONTS EPA HEAD — Scientist Unions Pledge to Secede from Cooperative Forum, Citing Rising Distrust

  Washington, DC — In a stinging rebuke, unions representing the vast majority of U.S. Environmental Protection Agency scientists, attorneys and other specialists have vowed to cut off future discussions with embattled Administrator Stephen Johnson, according to a letter released today by Public Employees for Environmental Responsibility (PEER). Already in the hot seat for overruling staff advice that he was legally required to grant California's requested waiver to regulate greenhouse gases, Johnson now faces a litany of charges that he has also been duplicitous on an array of other scientific integrity, information suppression and workplace relations issues.

  In a February 29, 2008 letter, the presidents of 19 locals from four unions representing more than 10,000 staff from EPA headquarters, all but one of its regional offices and seven lab complexes served notice that they will “suspend” further involvement with the National Labor-Management Partnership Council. The Partnership Council is a nearly ten-year old forum for resolving disagreements.

  The joint leap-day letter cites repeated instances of broken pledges or bad faith by Johnson, including –

  • Refusing to enforce the agency's “Principles of Scientific Integrity” involving “fluoride drinking water standards, organophosphate pesticide registration, control of mercury emissions from power plants, and “the California waiver decision where the unions contend Johnson has allowed outside influences to preclude “good science in [EPA] decision making”;
  • Using in-house legal staff to retaliate against whistleblowers and union officers; and
  • Ignoring requests to fix problems in EPA's performance appraisal system, which according to the unions, has deteriorated into “jargon and subjective measures” such that it is “all but impossible for employees to know when they are performing at an outstanding level.”

  “Whatever reservoir of good will and credibility that Stephen Johnson had as a career employee is fast evaporating,” stated PEER Executive Director Jeff Ruch, noting that the Bush administration often has defended questionable environmental decisions by pointing to Johnson's status as “a career scientist.” “On a host of critical issues, the nation is looking for EPA to lead, but Johnson cannot be an effective leader from inside a bunker.”

  The EPA Labor Union Coalition, consisting of four major unions (the American Federation of Government Employees, the Engineers and Scientists of California, the National Association of Government Employees and the National Treasury Employees Union), is particularly incensed by EPA's refusal to discuss, let alone negotiate, its closure of agency libraries. Last month, the Federal Labor Relations Board sanctioned EPA and ordered it to bargain any further changes with affected unions.

  “With each committee appearance more contentious and embarrassing than the last, it is hard to see how Johnson can break this downward spiral except by resigning,” added Ruch, pointing to Johnson's recent claims that he cannot recall clear and overwhelming staff advice for granting California's waiver requests, as evidenced by memos and PowerPoint presentations being unearthed by committee investigators. “It is a very bad sign that Johnson has been reduced to the Alberto Gonzales defense.”

• For Immediate Release: March 21, 2007
  Contact: Kirsten Stade (202) 265-7337

  EPA TO DEFANG ITS INSPECTOR GENERAL — Immediate Buy-Outs to Remove Auditors, Criminal Investigators and Chemists

  Washington, DC — Without waiting for congressional approval, the U.S. Environmental Protection Agency is moving this month to significantly downsize its Office of Inspector General (IG), according to agency memos released today by Public Employees for Environmental Responsibility (PEER). The cutbacks will reduce the ability of the IG to audit Environmental Protection Agency (EPA) contracting, investigate EPA enforcement actions and review allegations of political manipulation of agency science.

  Under the continuing resolution passed by Congress last month to fund EPA and most other non-defense agencies through the current fiscal year (FY07) which began this past October, the EPA-IG actually received a slight ($900,000) increase. In his proposed budget for FY08, however, President Bush would cut the IG budget by $5.1 million — the equivalent of a 10% budget reduction.

  EPA managers are rushing to implement these proposed cuts now. It is unstated how displaced IG staff will be replaced if Congress later nixes the President's proposed reduction. The reductions include –

  • Early retirements though buy-outs of senior auditor, criminal investigator, chemist and administrative positions;
  • Possible lay-offs (Reductions-In-Force) and closures of branch offices; and
  • A hiring freeze that precludes replacement of specialists who retire or resign.

  “If ever an agency needed a strong Office of Inspector General, it is the EPA in 2007,” stated PEER Executive Director Jeff Ruch, noting the recent string of agency scandals ranging from the World Trade Center warnings to the horrific asbestos tragedies in Libby, Montana. “The tremendous impact that EPA decisions have on peoples' lives deserves independent scrutiny from auditors and other investigators who can shred agency technical double-talk and get to the bottom of problems.”

  Under the previous EPA Inspector General, Nikki Tinsley, the IG gained a reputation for some independence, issuing a series of blistering reports about controversial EPA actions. Since her departure early last year, there has been no permanent replacement. The current Bush nominee, Alex Beehler, a Defense Department official linked to attempts to exempt Pentagon operations from environmental laws, was blocked in the last session of Congress. Beehler has been re-nominated in the current session, but his prospects for confirmation remain cloudy.

  The cutbacks are being carried out by Acting IG Bill Roderick under orders from EPA Administrator Stephen Johnson.

  “It is not surprising that the last thing the Bush administration values is aggressive investigation into corporate pollution offenses and the political collusion that lubricates them,” added Ruch, pointing that the cuts are taking place now, months before Congress is scheduled to finish work on the FY08 budget. “Congress should be consulted before irreversible steps are taken.”
  
  In the face of congressional protests, during the past few weeks, EPA has set aside plans to cut its network of scientific laboratories and put further closures of its technical libraries on hold.

• For Immediate Release: September 4, 2006
  Contact: Kirsten Stade (202) 265-7337

  BUSH DECLARES ECO-WHISTLEBLOWER LAW VOID FOR EPA EMPLOYEES — Stealth Repeal of Clean Water Act Protections by Invoking “Sovereign Immunity”

  Washington, DC — The Bush administration has declared itself immune from whistleblower protections for federal workers under the Clean Water Act, according to legal documents released today by Public Employees for Environmental Responsibility (PEER). As a result of an opinion issued by a unit within the Office of the Attorney General, federal workers will have little protection from official retaliation for reporting water pollution enforcement breakdowns, manipulations of science or cleanup failures.

  Citing an “unpublished opinion of the [Attorney General's] Office of Legal Counsel,” the Secretary of Labor's Administrative Review Board has ruled federal employees may no longer pursue whistleblower claims under the Clean Water Act. The opinion invoked the ancient doctrine of sovereign immunity which is based on the old English legal maxim that “The King Can Do No Wrong.” It is an absolute defense to any legal action unless the “sovereign” consents to be sued.

  The opinion and the ruling reverse nearly two decades of precedent. Approximately 170,000 federal employees working within environmental agencies are affected by the loss of whistleblower rights.
  
  “The Bush administration is engineering the stealth repeal of whistleblower protections,” stated PEER General Counsel Richard Condit, who had won several of the earlier cases applying environmental whistleblower protections to federal specialists. “The use of an unpublished opinion to change official interpretations is a giant step backward to the days of the secret Star Chamber.” PEER ultimately obtained a copy of the opinion under the Freedom of Information Act.

  At the same time, the U.S. Environmental Protection Agency (EPA) is taking a more extreme position that absolutely no environmental laws protect its employees from reprisal. EPA's stance would place the provisions of all major federal environmental laws, such as the Clean Air Act and the Safe Drinking Water Act, beyond the reach of federal employees seeking legal protection for good faith efforts to enforce or implement the anti-pollution provisions contained within those laws.

  These actions arose in the case of Sharyn Erickson, an EPA employee who had reported problems with agency contracts for toxic clean-ups. After conducting a hearing, an administrative law judge called EPA's conduct “reprehensible” and awarded Erickson $225,000 in punitive damages but the Labor Secretary overturned that ruling.

  “It is astonishing for the Bush administration to now suddenly claim that it is above the law,” said PEER Senior Counsel Paula Dinerstein, who is handling Erickson's appeal of the Labor Secretary's ruling to the U.S. Court of Appeals for the 11th Circuit based in Atlanta. “Congress could end this debate by simply declaring that it intends that the whistleblower protections of these anti-pollution laws apply to the federal government.”

  Congress is now debating Clean Water Act clarifications in the wake of a confusing U.S. Supreme Court decision (Rapanos et ux., et al. v. United States) handed down this June that muddies the extent of federal jurisdiction over wetlands. Unless Congress also resolves the Clean Water Act sovereign immunity question, scores of federal employee whistleblower cases may be dismissed or languish in limbo while the issue is litigated.