Gag Orders Imposed by EPA Administrator Scott Pruitt on Research Staff Infringe on Civil Servant First Amendment Rights and May Violate EPA Policy Restricting Censorship

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Source: Tim Faulkner on Twitter, see: http://bit.ly/2gUk5Xy

By Anne Polansky
CSPW Sr. Climate Policy Analyst

Last week, the Trump Administration’s sustained attack on federal scientists studying climate change science and impacts escalated when US Environmental Protection Agency (EPA) Administrator Scott Pruitt issued last-minute gag orders preventing several EPA research staff from giving planned presentations at a workshop about the overall health of the Narragansett Bay. This is the first such documented incident of speech censorship at the EPA of which we are aware. It is possible, if not likely, that there have been other similar instances that have gone unreported and relatively unnoticed.

News of the intervention by EPA headquarters got out, and The New York Times broke the story last Sunday afternoon; the Washington Post published a similar account that evening. By Monday morning, protesters holding signs reading “Science Trumps Silence,” “Un-gag Science,” and “Denial is Not a Policy” had gathered and lined the entrance to the Save The Bay Center in Providence where the workshop and press conference were held (see photo above).

CSPW is investigating the incident, and GAP attorneys are concerned that the EPA may not only be in violation of its own “scientific integrity” policy restricting censorship, but that it is attempting to infringe on the First Amendment rights enjoyed by all Americans, including civil servants. Details of the gag order, the response from Members of Congress and the public, and a discussion of the potential legal recourse available to the EPA staff follow.

The 2017 report, The State of Narragansett Bay and Its Watershed, contains good news about lower pollution levels than in the past, but warns that climate change is happening now, and that the entire watershed is at risk of suffering from multiple, potentially devastating climate change impacts. The comprehensive research, measuring, and monitoring program for assessing the health of the Narragansett Bay, New England’s largest estuary, is funded in substantial part by the EPA.

An afternoon workshop, preceded by a press conference, to release the new report and present its scientific findings to the public and the press was held on Monday, October 23, in Providence, Rhode Island. Three PhD-level EPA scientists – Autumn Oczkowski, Rose Martin, and Emily Shumchenia – were on the workshop speaker agenda, until they were abruptly removed on Friday, October 20 as the result of a gag order imposed on them by Pruitt. Oczkowski and Martin are employed by the nearby EPA Atlantic Ecology Division (AED) laboratory in Narragansett; Shumchenia is a consultant under contract to the EPA Region 1 office. Martin and Shumchenia were to appear on the panel entitled, “The Present and Future Biological Implications of Climate Change.”

The comprehensive measuring, monitoring, and modeling program to assess the ecological health of the bay and its watershed is coordinated by the Narragansett Bay Estuary Program (NBEP), a collaborative consisting of more than 30 partners in Rhode Island and Massachusetts that includes state and local government entities, nonprofits, universities, and the federal government (namely, the US EPA and the US Department of Agriculture). The Program’s mission is “to protect, restore, and preserve Narragansett Bay and its watershed” that covers a million acres and is home to over two million people, according to its website. The press conference and workshop were held to release the Summary Report of a voluminous Technical Report.

According to the report, the Narragansett Bay is healthier today than it has been in the past – it has even become a hot spot for swimming and paddling – but the entire watershed faces serious challenges associated with continued pollution and especially with the consequences of global warming and climate change. “While some forms of pollution have been reduced significantly,” the summary report says, “other pollution sources and the escalating impacts of climate change influence the bay’s ecosystem and public health conditions, and are the focus of intensive efforts by many agencies and organizations.” Of the five key findings, one is about climate change: “Climate change is affecting air and water temperatures, precipitation, sea level, and fish in the Narragansett Bay region.” All of these factors are not only critical to the ecological health of the bay and its surroundings, but to the many commercial interests it supports.

About the Gag Orders
CSPW interviewed Tom Borden, director of the NBEP, in a phone conversation on Monday, October 23, following the conclusion of the workshop. He added more detail to what was being reported in the press. Here is what we learned about EPA’s gag order and the chronology of events:

NBEP staff were busy with last-minute preparations for Monday’s events when Borden received a phone call at about 12:15 pm Friday, October 20, from Wayne Munns, director of the Atlantic Ecology Division (AED) of EPA’s National Health and Environmental Effects Research Laboratory (NHEERL) in nearby Narragansett. Borden and Munns are professional colleagues and have collaborated for years, and Borden reported a good working relationship with all of the EPA lab staff working on the bay project. Munns informed Borden that he had “just received word” from EPA’s Public Affairs Office in Washington, DC that his staff at the EPA lab would not be permitted to give their planned presentations at Monday’s workshop; he offered his apologies and expressed “some concern,” according to Borden. A few minutes later, Borden received an email from Munns confirming EPA’s orders. Borden then contacted Emily Shumchenia, an EPA contractor also involved with the study but unaffiliated with the nearby EPA lab, to let her know what he had just learned from Munns; shortly thereafter, Shumchenia also withdrew as a workshop speaker.

It was now 12:30 pm on Friday the 20th, one business day before the workshop. Borden’s staff, busily readying for the events, would be leaving the office at 5:00 pm and not returning until Monday morning. Borden sprung into action and quickly began making calls; he needed to find three replacement speakers, including one to give the keynote, in time to change the names on the workshop materials.

Borden shared with CSPW that the order from EPA headquarters and the ensuing press coverage created a certain amount of chaos and confusion. According to the initial Sunday afternoon report in The New York Times, EPA spokesperson John Konkus “did not respond to questions about whether the conference’s focus on climate change was a factor in canceling the appearances,” but clarified in an email that the EPA staff “may attend the program, but not the morning news conference,” and in a subsequent email that “EPA staff will not be formally presenting at either.” The Sunday evening Washington Post report quotes Konkus making a slightly different statement in an email: “EPA scientists are attending, they simply are not presenting, it is not an EPA conference.” The press conference was scheduled to take place at 11:00 am, the workshop at 12:30 pm. Given the ambiguity and the last-minute nature of this unprecedented intervention from the EPA DC office, it is not surprising that neither of the two EPA lab staff attended the workshop even though they were permitted to do so; neither attended the press conference, as instructed. Emily Shumchenia did attend the workshop, according to Borden, but made no impromptu statements, even after being invited to do so. Four other of Wayne Munn’s EPA lab staff attended as well, according to Borden. No one from EPA attended the press conference.

Whether the workshop could be characterized as “an EPA conference” is also arguable. After all, the Narragansett Bay Estuary Program receives about $600,000 each year from the EPA through the agency’s National Estuary Program, which funds a total of 28 estuary programs around the country to the tune of about $26 million. The EPA budget request for Fiscal Year 2018 zeroes out the entire program. Congressional appropriations for the program are still undetermined.

Somewhat miraculously, the workshop was a success: the experts presenting were on par with those they replaced, and the informational content remained intact. However, Borden related to CSPW that it was only a matter of “sheer luck” that he was able to secure three competent replacements, people who were both available to fill in at the last minute, and sufficiently knowledgeable regarding the scientific details of the study. A less optimal scenario was just as likely: absent the fortunate circumstances, Scott Pruitt’s gag order may easily have resulted in significant gaps in the presentations and a shortage of scientific expertise to present the findings and answer questions from workshop participants.

After four years directing the NBEP, Tom Borden resigned on October 27; his decision to leave had been planned for some time and was unrelated to this incident. A new director has already been named.

No reason or explanation was offered to Munns by the EPA official in the Public Affairs Office – most likely, John Konkus – who made the calls to the EPA lab in Narragansett, according to Borden and various press reports. For now, we can only assume that the significant portion of the report and the workshop dedicated to communicating the serious risks climate change poses to the Narragansett Bay and watershed somehow drew the attention of EPA’s front office. Scott Pruitt is a documented climate change denier and has made it abundantly clear that he intends to erase climate change from EPA’s agenda. For example, EPA website content on climate change has been systematically removed, Pruitt helped see to it that the United States pulled out of the Paris Agreement, and EPA’s Clean Power Plan for reducing carbon dioxide emissions from power plants has been scrapped. Preventing EPA staff from speaking out about climate change is consistent with Pruitt’s agenda.

According to his LinkedIn profile and various press accounts, after serving on the presidential campaign for Donald Trump, in January John Konkus became EPA’s Deputy Associate Administrator for Public Affairs. Konkus has also served in the office of Florida Governor Rick Scott, a climate change denier known for forbidding his staff from using the words “climate change” in their work. Earlier this year, the Washington Post reported that the EPA “had taken the unusual step of putting a political operative in charge of vetting the hundreds of millions of dollars in grants the EPA distributes annually,” and “assigning final funding decisions to a former Trump campaign aide with little environmental policy experience.” The same piece reported that “Konkus has told staff that he is on the lookout for ‘the double C-word’ – climate change – and repeatedly has instructed grant officers to eliminate references to the subject in solicitations.” Konkus has a bachelor’s degree in government and politics; he has also served as an executive vice president for Jamestown Associates, a public affairs and political advertising firm where Donald Trump was a client. He appears to have no training or experience in environment or science whatsoever, and has bragged that he reviews every grant and every award the agency gives out.

GAP Attorneys Express Concern, Clarify Rights of Civil Servants
According to GAP whistleblower attorneys Louis Clark (GAP’s CEO and Executive Director) and Tom Devine (Legal Director), under no circumstance can a federal agency legally prevent an employee from attending a public event, or a private event to which they are invited, such as last Monday’s press conference – as long as attendance occurs either with supervisory authorization or on their own time.

We are concerned that Administrator Scott Pruitt and other political appointees at the EPA are attempting to restrict the First Amendment rights that all Americans enjoy, including civil servants. All government employees can speak freely, at any forum they wish, as long as they include a disclaimer making it clear that the employee is representing his or her own expertise or views as a private citizen, and is not representing the views of the federal government or the agency that employs them. Renowned climate scientist James Hansen, a former GAP client, used this tactic to continue to give press interviews, appear as a witness before Congressional hearings, and give talks in public settings after he received similar gag orders from the NASA Administrator under the George W. Bush Administration.

As potential victims of retaliation by their ultimate employer for planning to speak publicly about climate change – much as whistleblower Joel Clement was likely a victim of Interior Department retaliation for being outspoken on climate impacts in Alaska – each of the three EPA scientists has a right to file formal legal complaints. During his last months as a federal employee, Clement also added the disclaimer above when speaking in public and in media interviews.

The EPA itself invokes such a disclaimer. A footnote in the report lists the various funding contracts between EPA and the NBEP and notes that the report “has not undergone the Agency’s publications review process and therefore, may not necessarily reflect the views of the Agency and no official endorsement should be inferred.”

Pruitt may have triggered provisions in the Whistleblower Protection Act (WPA) and the Whistleblower Protection Enhancement Act of 2012 (WPEA), laws that GAP was instrumental in developing. The WPA allows federal employees to disclose, free from reprisal, information that evidences (among other things) an abuse of authority, which the late-hour gag order seems to exhibit. According to GAP attorney Dana Gold: “Preventing government workers from making presentations about legitimate scientific subjects they pursue as part of their work, but that happen to run contrary to the boss’s political agenda, violates fundamental federal merit system principles that are designed to protect employees from political influence.”

The gag orders could be viewed as an abuse of authority, according to Gold, because they had the effect of preventing the scientists from fulfilling their professional commitments, preventing workshop participants from hearing presentations by EPA representatives about EPA-funded research, and creating a chilling effect in the work atmosphere likely to make EPA scientists think twice before agreeing to present their findings publicly.

For 40 years, GAP has represented thousands of federal employees in similar situations to the one these EPA workers find themselves in, and informed them of their legal options and rights through privileged formal and informal discussions. The affected EPA staff have options for recourse. For example, provisions under 5 USC § 2302 allow censored government employees, under certain circumstances, to make what is known as “protected disclosures” and to file complaints with the White House Office of Special Counsel and the EPA Inspector General. Any subsequent workplace reprisal or retaliation suffered by the complainants would be covered under whistleblower protection laws, and any EPA manager found to have engaged in retaliatory actions would be subject to discipline. Moreover, under new provisions in the Dr. Kirkpatrick Whistleblower Act passed into law last week (October 26), retaliation established upon investigation would result, at minimum, in mandated suspension.

Reactions to the Gag Orders
At some point after the EPA headquarters’ call to the lab in Rhode Island, someone became concerned enough to tip off the press. As indicated earlier, Lisa Friedman at The New York Times broke the story that Sunday afternoon (see EPA Cancels Talk on Climate Change by Agency Scientists), and by that evening, The Washington Post had also published the story (see EPA yanks scientists’ conference presentations, including on climate change). News traveled quickly, and what would have been a low-key gathering to talk about the health of the Narragansett Bay quickly drew public attention, attracted a crowd of protesters, elevated press coverage and caused a flurry of commentary in the social media. Borden remarked that the event was more publicized that it had ever been; the last such report release and workshop occurred in 2009. At the press conference preceding the workshop, the significant findings in the report were largely overshadowed by discussion of the EPA’s decision to prevent its scientists from speaking at the workshop.

Senator Sheldon Whitehouse (D-RI) and the other three members of the Rhode Island Congressional delegation – all Democrats – attended and gave statements. Each praised the report and highlighted the key findings, but expressed harsh criticism of Pruitt’s decision to muzzle the EPA scientists.

Several took their ire to social media as well. “Muzzling scientists benefits no one,” Senator Whitehouse tweeted during the press conference.

In an interview with a local environmental organization immediately following the press conference, Senator Whitehouse characterized Pruitt’s gag order as part of “a constant effort at trying to silence conversation about climate change,” and added, “It makes me feel a little sick to my stomach, frankly, that that would happen in the United States of America.”

Senator Jack Reed (D-RI), weighed in: “This type of political interference, or scientific censorship — whatever you want to call it — is ill-advised and does a real disservice to the American public and public health,” he said. “We can debate the issues. We can have different viewpoints. But we should all be able to objectively examine the data and look at the evidence,” he added (as reported by the Washington Post and by the local press).

Representative David N. Cicilline (D-RI), representing Rhode Island’s First District, noted that the EPA scientists are “deeply respected” and the report “thoroughly vetted.” He also expressed dismay at the gag order:

The elephant in the room is, it’s almost impossible to imagine this sequence of events. The idea that we would deny the American people information — good, reliable facts and evidence to develop good public policy — is not only disappointing, it’s dangerous.

Indeed, preventing the dissemination of solid science to the public and policymakers is dangerous and breeds ignorance and foolish decisions – decisions that can result in measurable harm, even human fatalities. CSPW has made this point on numerous occasions and pushed for a national climate change preparedness capability for reducing and managing the serious risks associated with climate change impacts.

Representative Jim Langevin (D-RI), who represents Rhode Island’s Second District, echoed the sentiments:

We have got to get beyond this point of stifling science, of muzzling good science, and speak to the facts as they are. This shouldn’t be about a Democratic or Republican issue. It’s about protecting the planet.

State and local officials, and those who oversee the research and the report, were also critical.

“This looks like the opening volley of the war on science,” said John King, chair of the science advisory committee for the Narragansett Bay Estuary Program, according to one local press report. At another point during the event, King acknowledged the conundrum so many government climate scientists find themselves facing today: “Let us do our jobs without fear of losing our jobs,” he said, according to reports in the local press and on Twitter.

Together with Judith Swift, chair of the executive committee for the research program, John King made a statement in the report that goes to the heart of the problem that is being made even worse and more difficult by President Trump and the people he has selected to run the executive branch.

We as a society are not prepared for climate change. Significant investments in local infrastructure are needed to enhance the resiliency and the socio-economic vitality of the Narragansett Bay region. Such investments will pay long-term dividends as a cleaner, more-resilient bay and watershed results in stronger economic prosperity. Future investments in coastal infrastructure must take into account the predicted effects of climate change such as sea level rise, changing patterns of precipitation, and more severe storm surge flooding. To enhance coastal management efforts, investments in expanded research and monitoring are critical to understand the changing conditions in the bay and watershed, to identify priorities and solutions, and to evaluate the effectiveness of these actions.

Improvement of the nation’s infrastructure has been one of President Trump’s stated priorities, yet one of his first actions was to reverse an executive order requiring climate change impacts to be considered in the design and construction of major infrastructure projects. Every new infrastructure construction or improvement project must include consideration of future weather and climate conditions, or risk engineering failures, even total inundation or destruction if located in coastal areas.

Going Forward: What Now?
One recurrent theme in the report is the relevance and importance of the scientific monitoring, measuring, and modeling work to policymaking at the national, state, and local level. The Narragansett Bay is not only an ecological treasure; it’s a natural resource critical to commercial fisheries, recreation, and other economic enterprises. The bay is at significant risk of degrading as a result of climate change, and the solution is not to attempt to silence the scientists, but to appreciate the value of the work they do and encourage them to speak publicly more often, not less.

Last Monday’s workshop would have occurred under the radar for anyone not keenly interested and involved in the health and ecological well-being of the Narragansett Bay. While this particular instance of government suppression of freedom of speech was reported in the national news and became public knowledge, it very well may not have. The tendency of most scientists is to refrain from making waves, keep a low profile, and avoid making trouble in order to keep doing the important work they were hired for. How many similar instances of restrictions on speech have occurred under the Trump Administration, but have gone unreported? Is this just one example of a larger pattern?

If scientists and their advocates do not actively and effectively defend the important research they do – especially research related to the politically-charged topic of climate change – they will be at risk of being marginalized, silenced and even prevented from performing critical climate change research. Good science is in everyone’s best interest, and it is in everyone’s best interest to defend both good science and good scientists from politically-motivated interference – interference that is not only morally reprehensible but unlawful.

GAP continues to work with other strategic partner organizations, such as the Union of Concerned Scientists, to answer this question, and to even further expand our collective role as watchdogs. We hope Congress will investigate in its oversight role, as it should. Meanwhile, CSPW is conducting an investigation of our own to uncover the reasons behind the gag orders, how they came to be issued, how commonly these gag orders occur, and the legality of EPA’s actions.

Stay tuned!

 

CSPW Senior Climate Policy Analyst Anne Polansky has 30 years of experience in public policies relating to energy and the environment, with a strong focus on climate change and renewable energy. She is a former Professional Staff Member of the House Committee on Science, Space and Technology.

This entry was posted in Assessments of Climate Impacts and Adaptation, Attacks on Climate Science and Scientists, Climate Change Education and Communication, Climate Change Preparedness, Climate Science Censorship, Global Climate Disruption and Impacts, Global Warming Denial Machine, Science Communication, Science-Policy Interaction, Scientific Integrity, Whistleblowers. Bookmark the permalink.