Public Employees for the Environment: Defending Principle During the Polluters’ Ball

An Interview with Jeff Ruch

Jeff Ruch is a founder and executive director of Public Employees for Environmental Responsibility (PEER), an alliance of local, state and federal resource professionals in the United States. PEER is a service organization for people who work inside natural resource, pollution control and land management agencies, helping specialists who find themselves in the political cross-hairs being pressured to do things that are unethical, illegal or improper and who have no other means of support.

Multinational Monitor: What kinds of support does Public Employees for Environmental Responsibility provide to governmental resource professionals? Jeff

Jeff Ruch: We provide legal representation, conduct media campaigns on employees' behalf and connect them with other employees. We also provide what we call career counseling -- in many instances, one of the services we provide to the public employees is to keep them employed as public employees. We find ourselves talking more people out of blowing the whistle -- we call it talking them down from the ledge -- than we encourage to go forward, publicly identify themselves and pull what we call a Joan of Arc.

MM: Are the employees that you work with generally unionized? What is your relationship to government employee unions?

Ruch: We are not a union but we often work with unions. More often than not, the employees do belong to unions, but a significant minority of the time, they do not. That is in large part because many of them are managers or supervisors and, in rare occasions, the actual heads of the agencies, and they have found themselves in political trouble.

During the Bush administration thus far, we've found the GS level of our intakes going way up. During the Clinton administration, our typical intake was a park biologist; today our typical intake is a park superintendent.

MM: Why do you talk people down from whistle-blowing? What are the risks of being a whistleblower?

Ruch: The reason we talk them down is that in many instances they won't accomplish their objective and they will ruin their career.

We often tell them if you're going to fight the agency, the last terrain you want to fight them is your own personnel jacket. When individual employees charge their own agency with some sort of misconduct, the employee often ends up being investigated. Usually charges are trumped up and the person is fired or sent to Siberia or otherwise taken off their career track. In the event that the whistleblower ends up in personnel litigation or other sorts of discrimination litigation with the agency, the case turns on a labor issue -- whether or not they were properly fired or transferred. It's outside the jurisdiction of that forum, be it the civil service court or a labor court, to address the underlying issue for which they're willing to risk their career.

If you're trying to address enforcement in the Environmental Protection Agency, becoming a whistleblower about the lack of enforcement may or may not result in a different path for your career, but it is not likely to change whether or not there is enforcement.

So what we try to do is sit down with the employee and figure out ways to deliver the message -- in many cases without the messenger. If the agency is forced publicly to deal with the issue in a way where they can't change the subject and talk about a disgruntled employee, that's half the battle. On that sort of terrain, with the spotlight on them -- that "60 Minutes" moment -- the agency will do the right thing. That's because counter-pressure is being applied to counteract the pressure they're getting not to implement the law or to change figures or whatever it is the employee is blowing the whistle about.

MM: What are some of the strategies you employ with an employee not coming forward publicly to get the word out?

Ruch: It depends upon the nature of the issue.

Sometimes, there is a particular decision document, in which case we may use the Freedom of Information Act to request the document. Sometimes, in order to mask the source of that intelligence, we do a "haystack request," asking for a lot of documents in order to extract the one needle.

Another device, particularly when you're dealing with an issue of systematic non-enforcement, is employee surveys. You ask all of the enforcement staff whether or not they're experiencing problems that are being reported by individuals.

Sometimes, we get employees together to write white papers that describe situations, or describe how an agency has declined. Those reports have on occasion led to the resignation of a top official or triggered grand jury investigations.

Sometimes, it is a matter of taking the information to an investigative agency, like an inspector general. Where it makes sense to mask the employee's identity, PEER may file the complaint, and the inspector general gets access to employees only under conditions that really do protect the confidentiality of the employee.

MM: When employees do come forward as whistleblowers, what kinds of pressures and retaliation have you seen in recent cases?

Ruch: The typical thing is that the agency will trump up some sort of disciplinary charge. They'll take an incident, a disagreement, and turn it into a charge of assault. In some instances, they will take a practice that is common by employees -- improper use of a credit card is always a favorite one -- and charge just the one employee when what that employee is doing is what all of their colleagues are doing. We've been involved in cases where employees have been accused of gambling because they bought a charitable raffle ticket from a colleague. There is no limit to depth of the pettiness to which the agencies will go.

A lot of times there is an attempt to cast doubt on the mental health of the individual. This happens more often in cases involving women, although it is not confined to women.

Then, in addition to transferring the person to a non-job or Siberia, there are variations of something we call "loving them to death," where the whistleblower is promoted to an inconsequential job just to get them out of an area in which they're doing their work too well.

MM: To what extent are federal employees facing threats of violence or acts of violence? Who is getting victimized by this and who are the perpetrators?

Ruch: Over the years, we've received complaints from individual employees, and in some instances we've provided legal representation to counter-sue where employees have been threatened or, in some cases, attacked and beaten up, in connection with local tensions concerning the enforcement of environmental regulations.

In one extreme case, a Forest Service district ranger had his office, home and car firebombed. The Forest Service was forced to move him out of Nevada, claiming they couldn't guarantee his safety, and transferred him to an office in Boise, Idaho. Within the next year, that office was evacuated three times because of bomb threats. We liken it to putting a burn victim to work in a match factory.

A lot of those more spectacular high-profile, high-publicity incidents peaked in the mid-nineties. One of them was pictured on the cover of Time magazine -- a Nevada county commissioner with a bulldozer, bulldozing through a barricade manned by Forest Service special agents. But while the high-profile events have tapered off, the low-level, harassing incidents have gone on unabated. Since the mid-nineties, we have annually submitted Freedom of Information Act requests for all incidents and we have totaled them up. In every year but one since 1990, the number of incidents reported has gone up.

To some extent, the increases reflect better reporting. A significant number of incidents that employees report to us individually don't end up in the agency data base. For example, we've done surveys of all national wildlife refuge managers. Two years in a row, we asked them whether during the past year they or their staff had been threatened or assaulted in connection with enforcement of an environmental regulation on the refuge. A third of all respondents said yes. But the official wildlife service, their parent agency, had no record of any incident.

In many cases, the agency attitude is, "We don't want to hear these problems. The best way to handle local tensions is to not inflame the situation by bringing in the Justice Department or taking any kind of action, the best way is just to appease the tensions and move on and pretend that it didn't happen." It becomes very frustrating for the employee charged with enforcing a rule when the agency won't back them up when they are threatened or their offices are vandalized.

MM: What is the source of the threats?

Ruch: Usually it is the local user group. Sometimes it is ranchers, sometimes it is miners, sometimes it is hunters.

We've even had an incident involving fishermen using potlines in a national wildlife refuge. The reason the refuge was trying to get rid of that practice was because they tended to strangle the birds, for which the refuge existed.

But usually the underlying tension involves some sort of resource issue. One of the more dramatic ones that is going on right now involves ATV users in the California desert, under the jurisdiction of the Bureau of Land Management. One agency report called the conditions out there near riot conditions -- that is the condition that takes place several times a year on holiday weekends throughout the Fall.

MM: And are these things that the agencies could contain better if they chose to?

Ruch: Yes. The employees who are there feel like they are being left out as sort of sacrificial lambs without any support from their own chain of command.

MM: Turning to environmental criminal enforcement, you have done surveys on prosecution levels of the past decade or so. What have you found?

Ruch: For the most part, environmental criminal prosecutions have been going down, and in some categories they have been going down quite dramatically.

Unfortunately, the records aren't kept in a way that makes comparisons easy and the agencies themselves don't feature the comparisons. When they report on prosecutorial successes, they report on an anecdotal rather than a statistical basis. Sometimes it is very hard to speak in general terms about environmental prosecution writ large.

So a lot of work has been on specific agencies. One agency where we've done an awful lot of work is the Environmental Protection Agency. The most recent work involved agents who came to us a year ago, to complain that because of a range of new security assignments, they've been unable to do their jobs -- white collar criminal enforcement, primarily against corporations. These EPA criminal field agents only number about 120 in the entire country, and they were being called away to do everything from serve on contingency teams of what they call national security events -- big events like the Super Bowl and the Winter Olympics, and the Major League Baseball All-Star Game -- to providing a security escort and doing personal errands for then-administrator Christine Todd Whitman.

We chose to tell that story by among other things doing a survey of all the agents to find out the extent to which they were being prevented from doing their job. Then we matched that with Department with Justice data showing since the advent of the Bush administration a 40 percent drop-off of new cases referred to the Justice Department by EPA.

That has led to an inspector general investigation and a number of EPA criminal enforcement leaders have since left -- only one top official remains.

MM: When you surveyed the enforcement agents, what did you find? What were their attitudes about work life under the Bush administration?

Ruch: They said that the agency had lost a lot of its effectiveness in the last few years, and that there was a de-emphasis on environmental enforcement and a greater emphasis on non-enforcement activity. They registered a tremendous vote of no confidence in the integrity and competence of the leadership of the enforcement branch of the EPA, as well as declining morale and a feeling that there were insufficient resources to allow them to do their jobs adequately.

MM: If someone said, you're just asking the malcontents, or only the malcontents are responding, what would be your answer?

Ruch: In this case, we sent the survey to every enforcement agent and enforcement attorney in the agency, and between a third and a half responded. We don't do projections based upon a small sample. The fact that that number of people feel that way, we think is significant in and of itself. If you look at most corporate workplace surveys, from their point of view a 10 percent response is considered quite robust.

We view these surveys as opportunities for employees to collectively speak out. We generally ask essay questions and those questions allow the employees to speak on particular issues. That testimony is fairly significant in and of itself, even if it's only experienced by a couple of people.

The aspect of the recent survey that drew the most attention -- though we thought it was one of the least significant findings -- was the number of agents that had reported personal experience with having to perform errands for the administrator and her family.

The fact that scores of agents would report this personal experience -- even if it's not experienced by the majority -- is significant in and of itself.

When we do these surveys, we've always invited the agencies to do their own surveys -- and even offered to pay for the postage -- but we've never had that offer taken up, so our money has been safe.

MM: Are you able to speculate in broad terms what it means for pollution enforcement at EPA to be down 40 percent? Who's getting off, what's the broad impact on the environment?

Ruch: The broad impact -- and it's difficult to document because the agency's record keeping is so poor -- is that compliance goes down.

The relationship between enforcement and compliance is little understood, but just about every EPA review finds an extraordinary amount of noncompliance. The last one that drew national attention was on water quality. It found that approximately 40 percent of all their major waste water sources did not have current permits or were exceeding current permit levels.

Another case that we just highlighted involved mountain top removal permits in West Virginia, where the EPA incredibly allows people to push the tops of mountains down into streams. Although the agency permits the activity, they do impose limits. An agency audit found widespread if not almost complete noncompliance with permit conditions. Rather than take a single enforcement action, the agency has decided to offer amnesty! So if you live in West Virginia or Kentucky where these kind of practices are common, it means that anywhere around a mining operation, you can have significant degradation if not complete loss of the streams. In our view, this can be traced back to some extent to the lack of enforcement.

One of the most significant areas where we've spent an awful amount of time involves the Department of Defense. The Pentagon is by far the biggest pollution violator on the planet and is prolifically and profoundly polluting large parts of the landmass of the United States. Internal EPA documents that were used to brief incoming Bush administration officials found that the former sites are contaminating a land area the size of the state of the Florida. They don't have good estimates on the amount of contamination coming from the active sites because the Pentagon won't let them on-site. The Pentagon is now seeking to exempt itself from having to comply with toxic and other anti-pollution laws. The agency has taken almost no enforcement action. What little enforcement action has occurred has for the most part been taken by individual states, who are quite outmatched by the Pentagon. The result is a toxic legacy that according to EPA estimates will require the largest clean-up in environmental history, outstripping even the clean-up required to remediate the nuclear weapons complex.

MM: What kind of environmental exemption is the Pentagon seeking, and what would be the impact?

Ruch: We were gifted with their internal strategy memo, which is posted on our website. It's a document from December 2002. What they're looking for is almost complete immunity from pollution control and wildlife statutes.

Many of the active bases are astride local populations' sole source of drinking water sources, and you're going to see greater and greater contamination of drinking water supplies.

In the case of just one chemical that is now becoming quite prominent, perchlorate, you're looking at groundwater contamination that outstrips anything we've ever seen in the history of the country. Since this chemical has been so widely used not just on defense sites but also by defense contractors, just the tip of the iceberg is now beginning to be traced by studies that are very grudgingly being done by the Pentagon.

To me, it is outrageous, and it's a function of a complete abdication of responsibility by the United States Congress, which has failed to provide effective oversight over the Department of Defense. What Congress has done, not only this year, has been reprehensible and a complete dereliction of duty.

MM: What is the administration trying to do in terms of contracting out and how is that relating to the natural resource and environmental agencies?

Ruch: Generally speaking, the administration agenda is corporate control of the environmental agencies. Corporate control consists of putting lobbyists and lawyers from the corporations in high positions and re-writing the regulations, undermining enforcement and, in the case of outsourcing, replacing the agency's civil staff with corporate consultants.

After recent changes at the Defense Department, combined with what happened last year with Department of Homeland Security, now more than half of the federal employees have been stripped of civil service protections. And the other agencies are set to soon follow.

As a result of all these changes, you'll have a workforce that is like the private sector -- one that can be fired at will, without reason, with very little protection from unjust or arbitrary action. At the same time, you will have a workforce that can much more easily be replaced by private contractors.

The idea that you would have "independent science" within the agencies -- publicly maintained science -- becomes almost an endangered concept because the scientists that do this work can be removed at a whim under these systems, or replaced by XYZ corporation under a rigged competition.

MM: Are there examples of this happening?

Ruch: The most examples come from the Department of Defense, because that's the area where these outsourcing replacements have been taking place, under new rules that are just beginning to dawn in the civilian agencies. We represent about a thousand civilian biologists, botanists, archeologists and other "ologists" that work on the defense bases.

There has been a widespread effort to replace the natural resource staff with private consultants. Usually the resource staff that are targeted are those that have been raising concerns about particular military or non-military operations that are taking place on the base.

For example, the Defense Department allows a number of commercial uses on their lands, usually with strong political backing. A classic one is the grazing they allow at Fort Hood. They allow free grazing for the Central Texas Cattleman's Association. Besides providing free grazing through pasture clearance at taxpayer expense, they compensate them for each cow that's killed by a tank or whatever the equipment or operation is. By our calculations, this is the most expensive single grazing program in the world.

Staff that raise objections to those kinds of programs are the ones that are targeted for removal. Then you bring in a consultant who's concern is getting the consultant contract renewed. And they tend to give advice that is much more pleasing to the chain of command and much more convenient to whoever is applying the pressure.

MM: Are there examples from other agencies?

Ruch: We were gifted with other agency documents that assessed the impact of following through on administration contracting plans.

In the Park Service, where they were further along than most of the agencies, they had targeted for replacement almost all of the agency's archeologists. This meant removing the knowledge base that we had spent a good part of the last three decades building up.

One of the other impacts was that, since a lot of the jobs are on the lower level of the pay scale, that they were finding that in some areas upwards of 90 percent of the people being replaced were non-white. On one hand, the Park Service has increasing the diversity of the workforce as an important goal, but on the other hand, with outsourcing they are reversing the diversity gains for the last generation in almost one fell swoop.

The way outsourcing inside the agencies is done is that they bring in corporations to design the system -- so it's run by corporations for corporations. The costs of doing all this have to be taken out of existing operations. In the case of the Park Service, needed repair work couldn't be done, and seasonal hiring couldn't take place, so that outsourcing could proceed.