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Public Employees for Environmental Responsibility (PEER)

Extreme Judicial Activism in West Virginia v. EPA

By Kevin Bell - Public Employees for Environmental Responsibility, June 30, 2022

Ruling will restrict the federal government’s ability to address climate change

The Supreme Court issued a decision today in West Virginia v. Environmental Protection Agency that will hamstring the federal government’s ability to issue a wide range of regulations covering the environment, public health, climate change and the economy.

In a 6-3 decision, the Court held that the Clean Air Act’s grant of authority for EPA to implement the “best system of emission reductions” does not allow a nationwide system capping total carbon emissions to force a transition away from the use of fossil fuels. Its reasoning is, essentially, that the EPA cannot use this kind of system because it has never done it before. The court explicitly declined to determine what “system of emissions reductions” it would allow, leaving EPA, and every other agency in government, to guess what a reviewing court will or will not allow.

The ruling, in effect, smothers any attempt to use EPA’s existing statutory authorities to control carbon emissions or meaningfully slow climate change.

Instead of applying the Constitution, the Court relied on a relatively new conservative judicial theory called the “major questions doctrine.” The “major questions doctrine” holds that courts should not defer to agency statutory interpretations that concern questions of “vast economic or political significance.” However, in reality, this nebulous doctrine allows the judicial branch of government to usurp the power of the legislative and executive branches of government by allowing judges to insert themselves into any issue they find important economically or politically. It also further undermines 40 –years of precedent known as “Chevron Deference” which calls on judges to accept reasonable interpretations of a statute by an administrative agency.

Protecting Workers Engaged In Protecting The Environment

Deep-Sea Mining for Metals: Treading Carefully on the Path Toward Renewables

By Katherine Wilkin - Public Employees for Environmental Responsibility, June 8, 2021

As the push for renewable energy sources continues as a means to combat climate change, the demand for metals and minerals that make up critical components of clean energy technology will be on the rise. While some of these minerals can be obtained via deep-sea mining, the environmental impacts of such efforts are not well understood. In moving to a clean energy economy, governments and international non-governmental organizations need to research, understand, and mitigate the negative impacts to the environment and communities that can and will result from activities like deep-sea mining before allowing projects to go forward.

The United States Geological Survey has identified 11 metals and minerals as critical commodities in renewable energy technologies: arsenic, gallium, germanium, indium, tellurium, aluminum, cobalt, graphite, lithium, manganese, and rare earth elements. Silver, copper, selenium, silica, nickel, and cadmium are also used in solar panels, wind turbines, and batteries. Several of these critical metals and elements can be obtained via deep-sea mining from three different types of deposits: (i) cobalt-rich crust that contains manganese, iron, cobalt, copper, nickel and platinum; (ii) polymetallic nodules which are rich in manganese, nickel, copper, cobalt, molybdenum and rare earth elements; and (iii) sea-floor massive sulphides which contain copper, gold, zinc, lead, barium and silver.

Whether deep-sea mining is necessary to acquire enough minerals to fuel the renewable energy shift remains an unanswered question. In a May 2021 report on the need for minerals to power energy transition technologies, the International Energy Agency predicted that by 2040, total mineral demand for clean energy will be four times current demand. Electric vehicles and battery storage technology account for about half of this predicted growth in mineral demand. The Institute for Sustainable Futures at the University of Technology Sydney indicated in 2016 that this increased demand for materials can be satisfied without utilizing deep-sea mining even under a target of 100% renewable energy use by 2050. Further, Carbon Brief reported in 2018 that reserves of lithium and cobalt are likely to be sufficient to meet demand, but there are outstanding concerns of supply chain bottleneck causing delays. This is supported by the IEA report, which indicated that problems in supply of minerals is more likely to be a matter of quality rather than quantity. However, a 2018 study supported by the Dutch Ministry of Infrastructure found that the current supply of critical metals is not enough to transition to a fully-renewable energy system in the Netherlands. Additionally, a 2019 projection of demand for cobalt, lithium, and silver looking as far as 2050 found that “reserves” of these materials—a portion of total available resources that can be extracted economically—will not be sufficient to meet demand for cobalt, and demand for lithium can only be met in a “potential recycling scenario” with improved recycling rates over what is being conducted at present.

With the growing demand for metals and materials for use in renewable energy technologies, concerns arise about the environmental impacts and environmental justice implications of mining on land. For example, cobalt mines in the Democratic Republic of Congo have been the site of human rights violations, child labor, and severe environmental pollution. For that reason, deep-sea mining of these materials may present an option with fewer direct human impacts and environmental justice concerns.

Farewell to FWS – Goodbye to Gag Orders

By Brian Czech - CASSE, February 2018

Open letter to FWS, sent directly to FWS employees on February 7, 2018:

Friends, colleagues, and past FWS co-workers,

I once considered the U.S. Fish and Wildlife Service to be the world leader in conservation, and was proud to sign on! But that was a long time ago: 1999 to be precise. Today, something is awry at FWS headquarters, and that’s what drove me to retire on October 31. Within the leadership ranks of the National Wildlife Refuge System, especially, ethical lapses have led to corrupt tendencies. The mission has suffered and careers have been impacted; none more than mine, which was perennially crippled by gag orders.

The prohibited topic? The trade-off between economic growth and wildlife conservation, also known as the “800-pound gorilla.” The trade-off was the focus of my Ph.D. research in the 1990’s, when I documented the causes of species endangerment as a who’s who of the American economy. I presented these causes in Science, elaborated in Bioscience, and detailed the sociopolitical context in a book on the Endangered Species Act.

The gag orders were ironic, because my background on the 800-pound gorilla was one of the reasons FWS hired me to begin with. As the first “conservation biologist” for the National Wildlife Refuge System, I was told to “think big,” “long term,” and “outside the box.” Beginning in 2001, though, I was strung along by Refuge System chiefs who said “It has to be talked about, but now is not the time.” I waited patiently for the right time to come, occasionally re-testing the waters and invariably getting re-gagged.

While the gag orders started in 2001, the harshest one was issued in 2011 while a previous director awaited his Senate confirmation hearings. I was prohibited from saying “anything having to do with economics.” Another ham-handed order was issued in 2016 as the presidential primaries heated up. All the orders – along with reprimands, suspensions, and various other forms of coercion – were designed to buffer appointees, chiefs, and deputies who were petrified by the politics of economic growth. Such abject fear belied the talents of one appointee who boasted, “I can drink politics with a firehose.”

Not all FWS or DOI programs are inclined to evade the topic. Rather, a clique of Refuge System chiefs has squashed every reasonable effort to raise public awareness of the trade-off between growth and conservation. Now we are paying for this lack of awareness across the landscape.

Lest anyone think the gag orders reflected a technical disagreement, I quote a long-time Refuge System chief: “Everybody knows there’s a conflict between economic growth and wildlife conservation. It’s just not our role to talk about it.” Thankfully such shirking doesn’t infect every agency. Imagine the Surgeon General acquiescing, “Everybody knows smoking causes cancer. It’s just not our role to talk about it.”

Furthermore, the chief was off-base with “everybody knows,” unless he considered “everybody” to be FWS, where we’ve all witnessed the growing economy usurping, eroding, or polluting habitats. He failed to acknowledge the widespread misinformation outside FWS. Politicians, seeking to appease, mislead the public with, “There is no conflict between growing the economy and protecting the environment.”

The gag orders weren’t politically affiliated, either. The win-win rhetoric of “no conflict” was common to Democratic and Republican administrations alike. It was patently false in a bipartisan way, “everybody knew it” (at least in FWS), and sound science had refuted it. Yet to this day the win-win rhetoric constantly re-appears in public forums from the local town hall to the halls of Congress. It attracts wishful followers of all kinds, enough of them to keep economic growth atop the pedestal of domestic policy.

If the gag orders stemmed from neither technical disagreement nor political fealty, then why were they issued? In my opinion the answer is an indictment of an agency gone astray.

Delta Tunnels: Bureau of Reclamation is “Beyond reclamation.”

By Dan Bacher - Red, Green, and Blue, September 11, 2017

“Three recent federal audits have found the U.S. Bureau of Reclamation misspending more than $100 million in funds but the agency has not committed to any meaningful reforms nor to punishing any responsible officials,” according to Public Employees for Environmental Responsibility (PEER).

“The latest audit, last week, identified $84.8 million in improper Bureau of Reclamation payments to the State of California for its controversial Delta Tunnel Project. Despite this finding, the Bureau has no stated plans to recover even a penny.”

“Three recent critical audits arose from reports by Reclamation’s own employees represented by PEER. In the latest report on Friday, the Inspector General (IG) for the U.S. Department of Interior concluded that Reclamation illegally siphoned off funds to benefit fish and wildlife for the Delta Tunnel, a project to trans-ship vast quantities of freshwater from the Sacramento River and Delta to the south.  This project does not benefit fish and wildlife – just the opposite – but will principally benefit south-state irrigators,” PEER said.

This is the third recent “scathing report” on Reclamation misappropriations, according to the whistleblower group:

  • In late August, the U.S. Office of Special Counsel concluded that Reclamation illegally gave $32 million to Klamath Basin irrigators, again misusing funds earmarked for protecting fish and wildlife.  This ruling validated an earlier IG report confirming whistleblower disclosures; and
  • In October, the IG found that Reclamation never collected “repayment of millions of dollars of costs incurred to design, construct, and operate and maintain new head gates and fish screens” within the Klamath Project. These gates and screens are supposed to keep federally protected fish “in the river and out of the Klamath project irrigation canals

The misuse of funds in the Klamath Basin couldn’t have come at a worse time. The number of fall Chinook salmon predicted to return to the Klamath and Trinity rivers in 2017 — approximately 11,000 fish — is the lowest on record, a result of two consecutive juvenile fish disease outbreaks and other factors, including water diversions, dams, drought and ocean conditions.

The Pacific Fishery Management Council closed recreational and commercial salmon fishing in the Klamath Management Zone this season. Recreational fishing for fall run Chinook is banned on the Trinity and Klamath rivers this year.

Free-Speech Restrictions Leave Federal Workers Anxious About Challenging Trump

By Mike Ludwig - Truthout, February 14, 2017

Recent internal memos on how and when federal employees can speak their minds has left those frustrated by President Trump in murky waters, according to advocates.

For climate scientists at the Environmental Protection Agency (EPA) or rogue members of the National Park Service, this uncertainty around their ability to speak without fear of reprisal is causing confusion and despair as the Trump administration assumes control and attempts to assert its version of the facts, according to Public Employees for Environmental Responsibility (PEER), a watchdog group that represents civil servants at agencies like the EPA.

"There will be a number of instances where people are speaking their minds and the rules aren't all that clear," said PEER Director Jeff Ruch, who counsels government employees about their rights. "And you have a chief executive who is somewhat thin-skinned, and that may trickle down through his appointees," who could punish employees for actions perceived as dissent.

Ruch said there seems to be a "level of mutual mistrust" between civil servants who staff federal agencies as nonpartisan workers and President Trump, who promised on the campaign trail to gut agencies like the EPA, and announced a hiring freeze for many agencies shortly after taking office.

"The hiring freeze was not an economic measure but an effort to drain the swamp, as if [federal employees] are a malignant force and, if you can bleed them off, then government will be better," Ruch said. "And a lot of this could be offensive to some of these career civil servants."

Some civil servants have dared to challenge Trump. Since the National Park Service's Twitter account was temporarily shuttered after it questioned White House statements on the size of the crowd at Donald Trump's presidential inauguration, dozens of "alternative" federal agency accounts (such as AltEPA and AltFDA) have opened and amassed followings that rival their official counterparts.

These accounts identify with the anti-Trump resistance, and are unofficial. Many make it clear that tweets and posts are not coming from government employees in their official capacity, if from government employees at all. Ruch said PEER has been fielding questions from operators of these alternative accounts, which often challenge Trump's public statements and draw attention to the latest climate science.

Agency employees who speak out against Trump are treading on difficult ground, particularly since federal civil servants have limited rights to free speech in the workplace. In 2006, the Supreme Court ruled that the First Amendment does not protect public employees for statements made while acting in their official capacity, making it risky to speak out against a new administration that has been openly hostile to the media and anyone else who challenges its narrative.

Moreover, the Hatch Act of 1939 prohibits the vast majority of federal employees from participating in certain political activities on the job, including advocating for and against political candidates. Trump has filed 2020 campaign paperwork and is considered a political candidate. This means that federal employees are prohibited from speaking for or against his reelection in their official capacity, according to a memo circulated by the US Office of Special Counsel last week.

Ruch said making a statement as simple as, "This is a disaster, we've got to get rid of this guy," around the water cooler at a federal office could apparently cost a federal employee their job.

Federal employees do have First Amendment rights as private citizens, but that doesn't protect them in the workplace. Not too long after the White House's snafu with the National Park Service's Twitter account, the EPA sent out an agency-wide memo advising employees about the difference between addressing the public as an EPA employee and in their "individual personal capacity."

Environmental Justice Becoming Just a Platitude at EPA; New “Action Plan” Neuters Enforceable Protection for Overburdened Communities

By Kirsten Stade - Public Employees for Environmental Responsibility, July 14, 2015

Disclaimer: The views expressed here are not the official position of the IWW (or even the IWW’s EUC) and do not necessarily represent the views of anyone but the author’s.

Washington, DC — The proposed new U.S. Environmental Protection Agency “Action Agenda” for environmental justice contains precious little action and continues to marginalize disadvantaged communities beset by disproportionate pollution burdens, according to comments filed today by Public Employees for Environmental Responsibility (PEER). The EPA plan focuses on symbolic steps that will do little to lift the pollution burden off the poor.

Public comment closes today on EPA’s draft “EJ [Environmental Justice] 2020 Action Agenda framework” which would guide agency efforts over the next five years to make “a visible difference in environmentally overburdened, underserved, and economically distressed communities,” according to the agency website. PEER faults this new iteration for, among other reasons, its –

  • Divorce of environmental justice from its underlying basis in the Civil Rights Act of 1964. This separation has reduced environmental justice to a largely voluntary program;
  • Absence of any guidance for state and local recipients of EPA funds, leaving the program as an intellectual exercise for EPA staff with little practical consequence; and
  • Lack of any enforceable regulation or even a plan to promulgate any.

“At EPA, environmental justice has devolved into aspirational window-dressing,” stated PEER Executive Director Jeff Ruch, noting that the agency has yet to take promised steps to enable communities to defend themselves. “EPA’s ongoing failure to put some teeth into this program only perpetuates environmental injustice.”

The PEER comments urge EPA to adopt best practices from other agencies. For example, the Federal Highway Administration commits itself to “identify and address” undue pollution impacts in communities. By contrast, the EPA plan seeks to “build partnerships” to negotiate away problems.

“In the face of environmental racism, the EPA stance is that of a passive cheerleader,” added Ruch, pointing out that despite its muddled approach EPA is charged with coordinating environmental justice efforts among all federal agencies. “EPA has not even been able to develop guidance to implement the civil rights requirements underlying its environmental justice policies in the hundreds of state and local programs it funds, in the very communities bearing the brunt of pollution-driven insults to public health.”

The PEER comments also describe the fragmented and conflicted cross-currents within EPA that have caused various internal reform efforts to be stillborn. In addition, the agency has a history of civil rights complaints inside its own workforce. “Since EPA has not addressed the civil rights issues within its ranks, it is ill equipped to remedy those same problems outside its hallways,” Ruch concluded.

Covert Contracts Drain Chemical Safety Board Budget; Sole-Source Payments Piecemealed to Avoid Bid, Affirmative Action and Other Rules

By Kirsten Stade - Public Employees for Environmental Responsibility, July 8, 2015

Disclaimer: The views expressed here are not the official position of the IWW (or even the IWW’s EUC) and do not necessarily represent the views of anyone but the author’s.

Washington, DC — The new leader of the U.S. Chemical Safety and Hazard Investigation Board (CSB) is busy spending money on things other than chemical safety, according to records released today by Public Employees for Environmental Responsibility (PEER). In the past weeks, CSB has let nearly $100,000 in sole-source contracts for outside lawyers and consultants without public notice or discussion and kept them below a dollar threshold that would trigger an array of federal procurement requirements.

Last month, Richard Engler declared himself the “Interim Executive and Administrative Authority” for the CSB, a status disputed by the only other remaining Board member, Manuel (Manny) Ehrlich. He then proceeded to put the general counsel and managing director on paid administrative leave and began reassigning staff. Without informing Ehrlich, he also began unilaterally executing no-bid contracts for –

  • An organizational consultant called RGS of Arlington, VA for $49,998 ; and
  • “Legal Services” from the Washington, DC firm of Shaw, Bransford, Veilleux and Roth. Records indicate two payments totaling $45,000 have been authorized thus far at a billing rate between $175 and $300 per hour.

Federal contracts under $50,000 avoid a variety of procurement rules, including stronger competitive bidding and affirmative action requirements. They also fall just shy of the $50,000 threshold requiring a full Board vote under an order passed this May (with Engler among the “aye” votes) in the name of improving governance and “transparency.” Yet, these contracts were approved with the other Board member and most of the agency staff left in the dark.

“This guy is spending taxpayer money like a drunken sailor,” stated PEER Executive Director Jeff Ruch, noting Engler craves loyalty from a divided and intimidated staff so much that he even tried to elevate a lawyer with a big lawsuit against CSB. “He is assembling a mercenary force paid to do his only bidding.”

Feds Find Gaping Holes in CALOSHA Safety Net; Serious Enforcement and Inspection Failures Put California Workers at Risk

By Kirsten Stade - Public Employees for Environmental Responsibility, July 1, 2015

Disclaimer: The views expressed here are not the official position of the IWW (or even the IWW’s EUC) and do not necessarily represent the views of anyone but the author’s.

Washington, DC — The, U.S. Occupational Safety & Health Administration (OSHA) has cited the worker health and safety program in California for falling below minimum performance standards in response to a complaint filed by Public Employees for Environmental Responsibility (PEER). As a result, the state
Division of Occupational Safety & Health (Cal/OSHA) must upgrade its enforcement and inspection programs or face a variety of federal sanctions.

In a letter to PEER dated June 26, 2015, OSHA Area Director David Shiraishi upheld the bulk of the “Complaint about State Program Administration” that PEER filed in February 2014. In its review, OSHA found that Cal/OSHA:

  • Fails to conduct an adequate number of inspections in dangerous workplaces and fails to follow its own policy of doing follow-up inspections on serious violators;
  • Does not issue citations in a timely manner, thus delaying hazard abatement and prolonging dangerous conditions. OSHA found the “amount of time Cal/OSHA takes to issue citations is 69% longer than OSHA for safety inspections and 33% longer for health inspections”; and
  • Takes too long to respond to worker complaints of unsafe or unhealthy conditions. Cal/OSHA “averaged almost working four days to initiate investigations for complaints alleging serious hazards” with one serious complaint sitting 106 days. For non-serious complaints, Cal/OSHA averaged more than two weeks before inspecting with one case sitting 300 days.

The OSHA letter contains recommendations for how Cal/OSHA can remedy the identified failures while concluding that “the State Plan is required to remedy these deficiencies.” Like California, nearly half the states are funded by OSHA to operate their own state plans which, by law, must be at least as effective as the federal program. This finding means that California is not meeting that minimum threshold.

Coup Détat and Purge Befalls Chemical Safety Board; Senior Staff Marched Out Under Armed Guard and Banned from Building

By Kirsten Stade - Public Employees for Environmental Responsibility, June 18, 2015

Disclaimer: The views expressed here are not the official position of the IWW (or even the IWW’s EUC) and do not necessarily represent the views of anyone but the author’s.

Washington, DC — Strife within the U.S. Chemical Safety and Hazard Investigation Board (CSB) has burst into the open again with one board member seizing control and ordering immediate suspension of the agency’s entire executive staff, according to documents posted today by Public Employees for Environmental Responsibility (PEER). In less than a week, the CSB will be left with only two board members who cannot agree on governance of the small agency.

The U.S. Chemical Safety and Hazard Investigation Board (CSB) is an independent federal agency charged with investigating industrial chemical accidents in refineries, factories, and other fixed facilities. It is supposed to have five members but is currently operating with only three, after the White House pressured its own appointed CSB chair, Rafael Moure-Eraso, to resign in March before his nominated successor was confirmed. That left the CSB leaderless, since the White House is declining to designate an interim chair among the remaining three members.

On Friday June 12th, one of the board members Rick Engler circulated an email in which he claimed “the Board voted to designate me the Board Member Delegated Interim Executive and Administrative Authority.” However, there had been no CSB vote. Instead, acting without a quorum, Engler and outgoing Board member Mark Griffon, whose term ends on June 24th, made the designation by email. Their action came over the vehement objection of the third Board member, Manuel "Manny" Ehrlich. But Engler rebuffed Ehrlich’s overture that they act cooperatively to run the CSB until a chair could be confirmed.

This Tuesday June 16th, Engler summarily placed the CSB’s executive staff, Managing Director
Daniel Horowitz and General Counsel Richard Loeb, on administrative leave, forbade them from re-entering the building or talking to any CSB staff. Armed Federal Protective Service agents placed the two in custody and escorted them off the premises.

The stated basis for Engler’s action was that he had ordered an internal investigation into “possible misconduct” identified months earlier by a House Committee and the EPA Inspector General in reports that targeted the former board chair. The reports covered topics ranging from Moure-Eraso’s supposedly “autocratic” approach, use of private email, and staff complaints of a “toxic work environment.”

“In charge for less than a week, Engler has presided over the escalation from a toxic work environment to thermonuclear war,” stated PEER Executive Director Jeff Ruch. “These stale and frankly trivial matters do not merit Egyptian-style martial-law retribution meted out here.”

Ironically, it was Engler who was an outspoken critic of the “lack of transparency” and collegiality under Moure-Eraso. Yet, his actions make those of the prior chair pale in comparison.

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