iAccording to press reports, President-elect Trump’s transition team sent a questionnaire to the Department of Energy (“DOE”), demanding the names of employees who have attended climate-change-policy conferences or performed research on climate science. Some of the questions are a reasonable effort to garner information about ongoing DOE projects. But many of the questions appear to be a troubling witch hunt designed to enable Trump’s political appointees to retaliate against climate scientists. Such retaliation could include launching retaliatory investigations, making false accusations of research misconduct, placing the scientist under surveillance, changing their job duties or terminating their employment (directly or constructively). This is a sample of the questions:
- Can you provide a list of all Department of Energy employees or contractors who have attended any Interagency Working Group on the Social Cost of Carbon meetings? Can you provide a list of when those meetings were and any materials distributed at those meetings, EPSA emails associated with those meetings, or materials created by Department employees or contractors in anticipation of or as a result of those meetings?
- Can you provide a list of current professional society memberships of lab staff?
- Can you provide a list of all websites maintained by or contributed to by laboratory staff Labs during work hours for the past three years?
If oil-industry lobbyists plan to suppress scientific research and to convert the DOE into a think tank for the oil industry, then they might be in for a rude awakening. Though a new Administration is entitled to implement its policy agenda, censoring scientific research and retaliating against whistleblowers is prohibited.
Whistleblower Protection Act Prohibits Retaliation for Disclosures About Scientific Integrity
During the Bush II Administration, a White House political operative, who had previously worked as a lobbyist at the American Petroleum Institute, removed or altered descriptions of climate research in reports about climate science. Rick Piltz, a courageous whistleblower at the National Coordination Office of the U.S. Global Change Research Program, publicly opposed the censorship and resigned in protest. Piltz’s congressional testimony andpress reports about politically driven censorship of climate-science research spurred Congress to protect whistleblowers who oppose scientific censorship.
In particular, the Whistleblower Protection Enhancement Act (“WPEA”) prohibits retaliation against government scientists who challenge censorship or make disclosures related to the integrity of the scientific process. “Censorship” is broadly defined to include “any effort to distort, misrepresent, or suppress research, analysis, or technical information.” The WPEA protects a disclosure of information that an employee reasonably believes is evidence of censorship related to research, analysis, or technical information that is, or will cause, gross government waste or mismanagement, an abuse of authority, a substantial and specific danger to public health or safety, or any violation of law.
The legislative history of the WPEA explains the purpose of protecting disclosures about censorship of scientific research:
The Committee has heard concerns that federal employees may be discouraged from, or retaliated against for, disclosing evidence of unlawful or otherwise improper censorship of research, analysis, and other technical information related to scientific research. . . . It is essential that Congress and the public receive accurate data and findings from federal researchers and analysts to inform lawmaking and other public policy decisions.
The WPA and the agencies that investigate whistleblower disclosures and protect whistleblowers from retaliation, including the Office of Special Counsel (“OSC”), Offices of Inspectors General (“OIGs”), and the Merit Systems Protection Board (“MSPB”), will be a critical bulwark for scientific integrity.
Obey Now, Grieve Later
Whistleblowers who oppose censorship of scientific research should be aware of an important limitation in the WPA. 5 U.S.C. § 2302(b)(9) protects an employee’s refusal to “obey an order that would require the individual to violate a law,” but the Federal Circuit and MSPB have defined “law” to mean a statute, not a regulation. See Rainey v. MSPB. Accordingly, refusing to carry out an order that violates a regulation, but not a statute, could result in disciplinary action for insubordination. Whistleblowers would be well advised to follow the doctrine of “obey now, grieve later”—unless carrying out an order would violate a statute, place the employee in clear physical danger, or result in irreparable harm. After carrying out the order on an interim basis, the employee can then blow the whistle to agency officials, an OIG, the media, or Congress. Or the employee can address the concern through an agency grievance procedure.
