Jump to Navigation | Jump to Content
American Bar Association

 

Environmental Whistleblowers' Rights

By Allan Kanner – February 18, 2015


The law protects those who blow the whistle on potential or actual threats to the environment. Whistleblowers have a right to report environmental violations and to be free from retaliation for doing so. They may also be able to obtain money damages and other relief from those who violate environmental laws or retaliate against whistleblowers.


What Laws Protect Environmental Whistleblowers?

Seven major federal environmental laws have special provisions protecting corporate whistleblowers:


  • the Clean Air Act (CAA), 42 U.S.C. § 7622
  • the Toxic Substances Control Act (TSCA), 15 U.S.C. § 2622
  • the Federal Water Pollution Control Act (FWPCA) (a.k.a. Clean Water Act), 33 U.S.C. § 1367
  • the Energy Reorganization Act (ERA) (also encompassing the Atomic Energy Act), 42 U.S.C. § 5851
  • the Resource Conservation and Recovery Act (RCRA) (also encompassing the Solid Waste Disposal Act (SWDA)), id. § 6901
  • the Safe Drinking Water Act (SDWA), id. § 300j-9(i)
  • the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (a.k.a. Superfund), id. § 9610

In addition, the False Claims Act offers environmental whistleblowers both a financial incentive to report wrongdoing in connection with federal contracts or other benefits and protection from retaliation for investigating and filing suit under the False Claims Act. 31 U.S.C. §§ 3729–3730.


A variety of federal laws protect the rights of whistleblowers in other fields that come into contact with the environmental sector. See, e.g., 46 U.S.C. § 2114 (maritime whistleblower protection); 49 U.S.C. § 31105 (transportation safety); id. § 60129 (Pipeline Safety Improvement Act). Many states have also enacted laws to protect whistleblowers. In addition, environmental whistleblowers may be protected under other provisions of law, such as 42 U.S.C. § 1983, from retaliation for environmental whistleblowing if the conduct is protected by the First Amendment. See, e.g., Charvat v. E. Ohio Reg’l Wastewater Auth., 246 F.3d 607 (6th Cir. 2001). However, liability under section 1983 may be more difficult to establish than under whistleblower laws.


Environmental Whistleblower Statutes


Who is protected by federal environmental whistleblower laws? Any employee (or, in certain circumstances, an employee’s representative) who believes he or she has been discriminated against in retaliation for “blowing the whistle” on a safety problem or environmental violation, or for engaging in other activity protected under the whistleblower law, may file a complaint. Under certain provisions (the CAA, TSCA, SDWA, and ERA), an employee may have “any person” file a complaint on his or her behalf.


Almost any private sector or state, municipal, or federal employee can be protected. See Anderson v. U.S. Dep’t of Labor, 422 F.3d 1155, 1156–58 (10th Cir. 2005) (whistleblower action against political subdivision); Passaic Valley Sewerage Comm’rs v. U.S. Dep’t of Labor, 992 F.2d 474 (3d Cir. 1993) (same). In addition, under certain environmental laws (CERCLA, SWDA, and FWPCA), “authorized representatives of employees,” which might include union officials, unions, or attorneys authorized to represent employees, may be protected as well. See Anderson, 422 F.3d at 1175–82.


The ERA, SDWA, CAA, and TSCA prohibit discrimination based on the protected activity of an employee “or any person acting pursuant to a request of the employee,” but the discrimination must be directed toward the employee, and under those laws it is the employee who may file a complaint.


What activity is protected? Employees participate in protected activity when they (1) report internally a violation of the environmental statutes, see, e.g., ERA, 42 U.S.C. § 5851(a)(1)(A)&(B); Passaic, 992 F.2d at 478–79; (2) commence or are about to commence a proceeding for violation of federal environmental laws; (3) testify or are about to testify in any such proceeding; or (4) assist or participate in proceedings that may implicate violations of environmental regulations.


Are any employees excluded from federal whistleblower protections? Yes. The federal environmental whistleblower laws do not protect any employee who, acting without direction from his or her employer (or the employer’s agent), deliberately causes a violation of federal environmental law.


What is illegal discrimination? The federal environmental statutes prohibit a wide range of retaliatory actions, including reprimands, termination, threats of discharge or layoff, demotion, salary reduction, denial of promotion, denial of benefits, refusal to hire or rehire, blacklisting, harassment, and any act that would dissuade a reasonable person from engaging in further protected activity.


What must a plaintiff prove to prevail? To prevail under any of the environmental statutes for unlawful discrimination, an employee must establish a prima facie case by showing the following:


1. The employee engaged in protected activity;

2. The employer knew of the protected activity;

3. The employee was subjected to adverse action by the employer; and

4. The employee has sufficient evidence to raise at least an inference that the protected activity was the likely reason for the employer’s adverse action.


(Sometimes courts phrase it differently or break the prima facie case into five rather than four elements, but the basic rule is the same. Compare, e.g., Anderson, 422 F.3d at 1178 (five-factor test), with, e.g., Passaic, 992 F.2d at 480–81 (test parsed as four factors).


What is the employer’s burden of production? If an employee successfully establishes a prima facie case that the protected activity was the likely reason for the employer’s adverse action, an employer may rebut the employee’s prima facie case by producing evidence that the adverse action was motivated by a legitimate, nondiscriminatory, and non-pretextual reason for its action.


Where evidence of a “dual motive” exists, i.e., where reasons other than retaliation may also account for the employee’s termination, the employer has the burden to prove that it would have terminated the employee even if the employee had not engaged in the protected conduct. See, e.g., Passaic, 992 F.2d at 480–81 (CWA); Consol. Edison Co. v. Donovan, 673 F.2d 61, 62–63 (2d Cir. 1982) (ERA). The burden of proof is sometimes said to be a preponderance of the evidence, see Passaic, 992 F.2d at 481 (applying the CWA and general principles from non-environmental cases), and is sometimes clear and convincing evidence, for instance under the ERA, see 42 U.S.C. § 5851(b)(3)(B) & (D).


What can a prevailing plaintiff recover? A prevailing employee will be made whole, i.e., will be returned to the same position in which he or she would have been absent the retaliation. Depending on the federal environmental law at issue, a prevailing employee may be entitled to reinstatement, back pay with interest for lost wages, front pay, compensatory damages (for emotional distress and loss of professional reputation), restoration of seniority, sick leave, and other “privileges of employment,” and litigation costs, which may include attorney fees, expert-witness fees, and costs. In addition, some of the environmental whistleblower-retaliation statutes authorize exemplary or punitive damages “where appropriate” (under the TSCA and the SDWA) and other “affirmative relief” (such as requiring a letter of apology and formal posting of the decision).


Where should a complaint be filed? The federal environmental whistleblower laws are administered by the U.S. Department of Labor (DOL). Complaints must be filed in writing within 30 days of the date on which the discriminatory action was made and communicated to the employee (except for ERA complaints, which have a longer filing period), and should be mailed to:


U.S. Department of Labor
Office of the Assistant Secretary
Occupational Safety and Health Administration – Room S2315
200 Constitution Avenue
Washington, DC 20210
202-693-2000


The Secretary of Labor promulgated regulations imposing additional requirements and procedures for handling whistleblower complaints by employees under all seven of the federal environmental statutes named above. See 29 C.F.R. §§ 24.100–24.115.


How soon must a complaint be filed? A complaint under six of the environmental statutes just discussed must be filed with the DOL in writing within 30 days of the time an employee learns that he or she will be, or has been, subjected to discrimination, harassment, or retaliation. For whistleblower actions under the ERA, complaints must be filed within 180 days.


As noted at the outset, many states have also enacted laws to protect whistleblowers. Many of these laws have a longer statute of limitations and other benefits unavailable under federal law.


False Claims Act—Protection for Qui Tam Whistleblowers


What conduct is covered by the False Claims Act? In addition to the environmental statutes just discussed, the False Claims Act (FCA), 31 U.S.C. §§ 3729–3730, also offers protection to environmental whistleblowers. The FCA is an important litigation tool to combat fraud committed against the federal government; its broad reach includes liability for misrepresenting compliance with the obligations of a government contract and “reverse” false claims to avoid the payment of fines or other financial obligations to the government. Id. § 3729(a)(2) & (a)(7); see id. § 3279(c) (defining “claim”); see also, e.g., Michael Holt & Gregory Klass, “Implied Certification under the False Claims Act,” 41 Pub. Cont. L.J. 1, 7 (2011) (discussing ways in which claims may be false or fraudulent); United States ex rel. Hutcheson v. Blackstone Med., Inc., 647 F.3d 377, 385 (1st Cir. 2011) (same). The FCA imposes civil penalties and treble damages on any person who violates the act, among other remedies.


Who may bring an FCA suit? The citizen suit (qui tam) provisions of the FCA empower private individuals to bring an action on behalf of the federal government against those who violate the act. 31 U.S.C. § 3730(b)(1). If the plaintiff (“relator”) succeeds, he or she is entitled to a portion of the proceeds of the suit. See id. § 3730(d). The purpose of this provision is to encourage private individuals who are aware of fraud being perpetrated against the government to disclose that information.


What must an environmental whistleblower prove to prevail on an FCA claim? To state a claim under the FCA, a plaintiff must allege (1) a false statement or fraudulent course of conduct; (2) made or carried out knowingly, see id. § 3729(b)(1)(A)(i)–(iii) & B; (3) that was material, id. § 3729(b)(4); and (4) that is presented to the federal government, e.g., United States ex rel. Steury v. Cardinal Health, Inc., 625 F.3d 262, 267 (5th Cir. 2010). In addition, only the attorney general or an “original source” of the information may bring suit under the FCA. 31 U.S.C. § 3730(e)(4); see Rockwell Int’l Corp. v. United States, 549 U.S. 457, 467 (2007), possible abrogation on other grounds by amendment to 31 U.S.C. § 3730(e)(4) raised by Ping Chen ex rel. U.S. v. EMSL Analytical, Inc., 966 F. Supp. 2d 282, 293 (S.D.N.Y. 2013). “Original source” means an individual who either, before the information is publicly disclosed, voluntarily disclosed the information to the government or has independent knowledge that “materially adds” to the allegations. 31 U.S.C. § 3730(e)(4)(B).


The FCA offers remedies to environmental whistleblowers in cases in which a company’s operations involve contracts with or other benefits from the federal government. See, e.g., Simoneaux v. E.I. du Pont de Nemours & Co., No. Civ. 12-219-SDD-SCR, 2014 WL 4352185, at *1 (M.D. La. Sept. 2, 2014); Abbott v. BP Exploration & Prod. Inc., 781 F. Supp. 2d 453, 461–62 (S.D. Tex. 2011); see also, e.g., Rockwell, 549 U.S. 457. For example, if a company is operating under an oil or gas lease and discharges oil or other hazardous substances into the environment and fails to report it as required, or makes a material misrepresentation in a federal oil- or gas-drilling permit application, that company may be liable under the FCA. See Abbott, 781 F. Supp. 2d at 462; Jennifer Machlin & Tomme Young, Managing Environmental Risk: Real Estate and Business Transactions § 20:29 (2014) (failure to report a discharge or emission).


How does the FCA protect whistleblowers? The FCA contains an anti-retaliation provision, which protects an employee from being “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer” because the employee investigated, reported, or sought to stop an employer from engaging in practices that defraud the federal government. 31 U.S.C. § 3730(h)(1).


What must a plaintiff prove in an FCA retaliation suit? To prove that an employer retaliated against an employee in violation of the FCA, an employee must demonstrate that (1) he or she engaged in protected activity, i.e., opposed the employer’s attempt to get a false or fraudulent claim paid or approved by the federal government or conducted an investigation that reasonably could lead to a viable FCA action; (2) the employer had knowledge of the protected activity; (3) the employee suffered an adverse action that was motivated, at least in part, by the employee’s engaging in protected activity. The FCA protects “[a]ny employee, contractor, or agent[,]” not just employees, but only “employers” may be held liable for retaliation. Id. § 3730(h); see, e.g., United States ex rel. Golden v. Ark. Game & Fish Comm’n, 333 F.3d 867, 870–71 (8th Cir. 2003) (only employers may be held liable); United States ex rel. Siewick v. Jamieson Sci. & Eng’g, Inc., 322 F.3d 738, 740 (D.C. Cir. 2003) (same).


What remedies are available in retaliation suits? Remedies for retaliation against whistleblowing employees include reinstatement and restoration of seniority status, double back pay with interest, compensatory damages, and costs and attorney fees. 33 U.S.C. § 3730(h)(2). A civil action seeking damages for retaliation under the FCA must be brought within three years after the retaliation occurred. Id. § 3730(h)(3).


What limitations does the FCA impose? The FCA does not apply to some matters, such as claims made under the Internal Revenue Code, certain claims brought by members of the armed forces, certain suits brought against federal officials if the government already possessed the information at issue, and information sourced from civil proceedings in which the government was already a party. Id. §§ 3729(d), 3730(e).


Most courts hold that federal employees may serve as FCA relators. See, e.g., Little v. Shell Exploration & Prod. Co., 690 F.3d 282, 286–92 (5th Cir. 2012) (collecting cases); United States ex rel. Holmes v. Consumer Ins. Grp., 318 F.3d 1199, 1208 (10th Cir. 2003) (en banc); United States ex rel. Williams v. NEC Corp., 931 F.2d 1493 (11th Cir. 1991). Other laws protect the rights of federal-employee whistleblowers as well. See, e.g., 5 U.S.C. § 2302. However, FCA qui tam and retaliation claims may not be brought by federal employees against the U.S. government nor by state employees against the state or state entities due, among other considerations, to sovereign immunity. See, e.g., United States ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131, 142–43 (4th Cir. 2014); United States v. Tex. Tech Univ., 171 F.3d 279 (5th Cir. 1999). By contrast, with respect to state officials, the better view is that they are not entitled to good-faith (“qualified”) immunity from retaliation suits brought against them in their individual capacities under the FCA. See Samuel v. Holmes, 138 F.3d 173, 178 (5th Cir. 1998); but see, e.g., Kaminski v. Teledyne Indus., Inc., 121 F.3d 708 (6th Cir. 1997) (unpublished table disposition) (suggesting in passing that government officials could raise qualified-immunity defenses).


Conclusion
Overall, protections in federal law for environmental whistleblowers are robust. If an employee is concerned about potential or actual threats to the environment, he or she has a variety of options to consider, each with its own set of protections.


Keywords: environmental litigation, whistleblower, False Claims Act, Clean Air Act, Toxic Substances Control Act


Allan Kanner is a partner with Kanner & Whiteley, LLC, in New Orleans, Louisiana.


 
Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).