House Speaker Nancy Pelosi has announced plans to bring the Oil Spill Response Bill to the House floor for passage. The Washington Independent is reporting that the bill will include the Offshore Oil and Gas Worker Whistleblower Protection Act of 2010, which, “provides whistleblower and anti-retaliation protections to workers on the Outer Continental Shelf” and “protects worker safety by improving federal agency coordination.” The text of this bill is available here. From my read, it includes most of what we call the "gold standard" protections for whistleblowers. It will protect oil and gas workers when the raise concerns about compliance with the Outer Continental Shelf Lands Act, or any concerns about illness, injury or unsafe conditions. It would protect reports made in the course of performing duties, and protect refusals to violate the law. It would provide a right of action through the Department of Labor, a 180-day statute of limitations, a contributing factor standard for proving causation, and a "clear and convincing evidence" burden for employers who claim they would have fired the whistleblower even if protected activity was not considered. If the Department of Labor has not issued a final order within 300 days, whistleblowers could go to U.S. District Court and ask for a trial by jury. One provision that is missing (but was added to SOX in the Dodd-Frank Act) is a provision specifically barring enforcement of pre-dispute arbitration agreements. It does provide that, "The rights and remedies in this section may not be waived by any agreement, policy, form, or condition of employment," but this might not be enough to keep courts from enforcing arbitration agreements, as they are keen to do. It would be a good day for oil and gas workers, and for everyone who cares about the environment we leave for future generations, if this bill would pass. It would be an even better day if the House adds the Dodd-Frank anti-arbitration language.
Justice Department Considering Using False Claims Act to Recover Losses in Deepwater Horizon Disaster
FCA Legal Actions Could Result in BP Paying Treble Damages To United States Taxpayers
Last month, we posted here our letter to the U.S. Department of Justice calling on them to exercise their power under the False Claims Act (FCA) to hold oil companies accountable for misleading the government and the American people about their ability to clean up oil spills. Today we received an answer. Assistant Attorney General Tony West has written to us to say, "that the Department of Justice is dedicated to recovering any losses it sustains as a result of the oil spill, and is considering all avenues for redress against the potentially responsible parties." Mr. West's letter goes on to express the Department's appreciation of the False Claims Act and the role whistleblowers play in helping the government recover funds fraudulently obtained:
The Deparment appreciates the important contributions of relators in assisting the United States to recover taxpayer funds under the False Claims Act's qui tam provisions. This public-private partnership has proved a successful tool for the recovery of public funds and for rewarding relators who bring allegations of fraud to the government. Indeed, since January 2009, more than $3.6 bilion was obtained under the Act's qui tam provisions, and relators were awarded more than $497 million for their efforts in helping the government pursue these recoveries.
My client, Dr. David L. Lewis, was a top microbiologist at the U.S. Environmental Protection Agency (EPA). He raised the standards for dental hygiene worldwide when he showed how previous practices were inadequate to protect dental patients from the transmission of HIV. He showed how EPA's rules for land application of sewage sludge did not have the scientific support needed to protect us from airborne diseases. Now the Environmental News Network (ENN) is reporting that in 1998, the EPA assigned Dr. Lewis to the University of Georgia in part to research the risks of crude oil spills from drilling rigs. Dr. Lewis was concerned that oil from a blowout could travel in deep sea currents to environmentally sensitive areas on all sides of the Atlantic. Anyone ever hear of the "Gulf Stream"? ENN is reporting that the Clinton Administration's EPA nixed the project. The EPA's Office of Water (OW), headed by Robert Perciasepe, coordinated with leaders of the biosolids industry (who were sore about Dr. Lewis' research on the dangers posed by their industry) to damage his reputation and get him fired in 2003. ENN says that EPA Administrator Carol Browner was sympathetic but was "overruled at the highest level." President Barack Obama appointed Browner to oversee energy and environmental issues, and appointed Perciasepe as EPA Deputy Administrator. It is too bad that we lost the opportunity to apply our top scientific talent to the problem of biological degradation of crude oil, and that those who sided with industry over our interests are again setting government policy. You can read Dr. Lewis' paper on his proposal to study oil spills, how EPA squashed it, and then squashed his career at EPA, by following this link.
Last month, CNN's Special Investigations Unit released a story about Bobby Maxwell's experience as an inspector for the U.S. Department of Interior's Minerals Management Service (MMS). The main point of the story is how MMS was infused with a "culture of corruption," and its slipshod inspections missed opportunities to prevent the Deepwater Horizon explosion. The story also mentions that Maxwell is in the fifth year of a whistleblower lawsuit against Kerr-McGee. In that case, Maxwell won a $7.5 million dollar verdict against Kerr-McGee. After a judge threw out the verdict, he appealed. In 2008, the U.S. Court of Appeals for the Tenth Circuit agreed that Maxwell had a right to pursue his fraud case and reinstated the verdict. No doubt, Maxwell's status as a wistleblower, especially a whistleblower who has won his case, empowered him to speak out about the dangers of MMS' alignment with the oil companies instead of with the environment. No doubt, Maxwell raised his concerns years ago, but no one was listening until 11 workers lost their lives and the ecology of the Gulf of Mexico was ruined by this disaster. Maxell's story makes obvious how we would all benefit from giving our federal employees strong whistleblower protections. To me, this is the reason why our Senators must scrap the poison pills in their current version of the Whistleblower Protection Enhancement Act (WPEA), S. 372, and adopt the strong House version, HR 1507. Follow this link for more information about helping environmental whistleblowers.
I find it amazing when I look over these past seventeen years of having been involved with the National Whistleblowers Center and the law firm of Kohn, Kohn and Colapinto that we have not moved so much further ahead in this nation with protections for whistleblowers. In 1992 when I first approached the law firm of Kohn, Kohn, and Colapinto to represent me in my attempts to address the problems at the FBI crime lab, we were a nation in denial. Whistleblowers had a history of being dealt with brutally. And today the same brutality is evident in every whistleblower case the law firm and the NWC handles. Today I look at the BP disaster in the Gulf of Mexico as countless lives and resources are destroyed and know that somewhere in that group of people who brought this disaster on our nation, there were potential whistleblowers who said to themselves that the risks of blowing the whistle on BP malpractices were just not worth the dangers to themselves and their families. After all, this nation cares little for the rights and protections of individuals who would proactively stop such disasters. This lack of concern is reflected in the actions of our Congressmen and Senators, some of whom have labored hard and diligently to establish whistleblower protections while most ignore obvious safeguards for our nation, our citizens and our natural resources. If we do not wake up in the face of this, the worst environmental disaster in history created by lax standards by the British Petroleum Corporation, then we deserve what we get.
In our recent attempts to strengthen whistleblower protections we have even faced almost insurmountable barriers to whistleblower protections from President Obama's staff, in fact efforts to thoroughly gut whistleblower protections by that very staff. Present Barack Obama cannot be so blind as to believe that gutting whistleblower protections will do anything but lead to repeats in other forms of the BP environmental disaster we see going on now. And yet, as a nation, we maintain a society where individuals who would expose serious dangers to this nation are treated as criminals.
These many years later, I remain confused and saddened by this state of affairs, by the mistreatment of whistleblowers and the lack of protections for those individuals who would put the safety of this nation above the safety of themselves and their own families. In days gone by, these patriots would have been treated as heroes. Today, they are simply martyrs to lost causes. This is a shame on our nation, on our President and on our Congress.