Public employees and their allies on the outside fight against Bush’s war on science
One autumn morning seven years ago near Rifle, Colo., Wendell Goad walked out of his house to find his driveway flooded with mucky water. Turning toward his garage, he saw a 15-foot-tall geyser shooting out of his drinking water well.
Goad and his wife, Kay, soon learned the cause: Natural gas drillers working about a mile from the house had been using a technique called hydraulic fracturing, which involves pumping water, sand and chemicals into underground coal beds to release methane gas. The night before the flood, sometime between 11 and midnight, the drillers, who worked for Williams Production Company, lost control of a gas well, causing a "blowout" in an underground fissure.
"The pressure found a fracture somewhere and found our water well," says Kay Goad. "And it needed to erupt someplace."
That eruption continued for a day and a half; the Goads had to evacuate their home for three days because it was filled with dangerous levels of methane. For months afterward, they kept fans in the crawlspace to clear the house of the odorless, colorless gas that seeped from the well. For more than two years, Kay says, she could hold a match to the pipe that vents the well and spark a blue flame. The couple still has a methane detector in their bedroom, and despite the efforts of three different water-treatment specialists, their well water remains too contaminated to drink. Williams Production has responded by drilling the Goads a new well; the company is still trying to clean the old one of cancer-causing benzene.
Hydraulic fracturing, or "frac’ing," (pronounced FRACK-ing) is on the rise around Rifle and elsewhere in the West, but the Goads and citizens like them are powerless to stop future blowouts. "Seven years ago, no one listened to us," says Kay. "I just don’t understand how they can continue to do this, and continue to contaminate water that they can’t clean up."
In fact, for most of a decade, community activists have been fighting to get the U.S. Environmental Protection Agency to regulate frac’ing. Drillers inject the earth with chemicals such as diesel fuel, benzene, formaldehyde, toluene, ethylbenzene and zylene (HCN, 10/27/03: Gas industry gets cracking). Those chemicals and gelling agents, when mixed with sand and water, create new fissures and hold them open so that oil or gas can better reach the well head. But critics argue that too little is known about where the chemicals eventually end up, or what impacts they might have on underground aquifers pumped for drinking water and irrigation. Inside the EPA, there are longtime civil servants who agree and say that the agency’s own science backs them up.
But to this day, no federal agencies regulate hydraulic fracturing, which is used primarily by three companies worldwide — Halliburton, Schlumberger and BJ Services Company. Energy companies don’t even need a permit to use the process. And, this January, Congress may vote to permanently exempt frac’ing from any future regulation under the federal Safe Drinking Water Act.
Leading the push to exempt energy companies from federal laws that protect the environment and public health are officials at the highest levels of the Bush administration, supported by the efforts of politically appointed regulators willing to ignore the findings of their own scientists, or even rewrite those scientists’ opinions. And this is just one example of the challenges facing not only agency scientists, but all federal employees, as they come under pressure to subvert the very laws they are supposed to uphold and enforce. Field biologists, park superintendents, land managers and environmental regulators are all feeling the pinch of politics.
"We think it’s very ironic this is happening under an administration that was re-elected because of its values," says Jeff Ruch, executive director of the nonprofit watchdog group Public Employees for Environmental Responsibility (PEER). Ruch’s group offers legal counsel to whistleblowers, and helps civil servants who want to speak and act anonymously. "The larger challenge for the vast majority of (public employees) is: How can they do their jobs faithfully, and survive?"
In recent months, this challenge has played out in the halls of the EPA’s Region 8 office in Denver, where one scientist has openly questioned his agency’s collaboration with industry over hydraulic fracturing.
The story stretches back at least to 1988, when residents of Alabama’s Black Warrior Basin first found a black, stringy substance in their tap water. "A nearby well pad was used to frac’ a coal seam and apparently intersected with a fracture that provided water to their well," says David Ludder, an attorney with the Tallahassee-based Legal Environmental Assistance Foundation (LEAF).
LEAF sued the EPA, alleging that frac’ing had contaminated the wells, and in 1997, the 11th Circuit Court of Appeals agreed, and ordered the state and federal government to regulate hydraulic fracturing. The court also ordered the EPA to begin a three-phase study to determine whether the practice poses a threat to public health, and if it should be regulated under the Safe Drinking Water Act.
As a result of the decision, Alabama became the only state to regulate frac’ing. It now requires drillers to use "green," water-based frac’ing fluids, rather than hydrocarbon-based chemicals such as diesel fuel. Progress on the national front has been slower, however.
Initial reports from inside the EPA indicated that the agency knew that hydraulic fracturing could endanger drinking water supplies. By 2001, however, the White House Energy Task Force — headed by Vice President Dick Cheney, a former CEO of frac’ing pioneer Halliburton Corp. — was encouraging Congress to exempt hydraulic fracturing from the Safe Drinking Water Act. In order to strengthen its case, the administration pressured the EPA to alter its frac’ing studies, according to a 2002 letter to then-EPA administrator Christine Todd Whitman from Rep. Henry Waxman, D-Calif. But Waxman’s call for objective science apparently fell on deaf ears.
In June 2004, the agency released the first phase of its study. It concluded that, because citizens could not prove that contamination in drinking water didn’t come from a source other than frac’ing, the practice posed "little or no threat" to underground drinking water sources. Therefore, according to the report, hydraulic fracturing merits neither federal regulation nor further study.
Although the three companies that use the technique signed an agreement promising not to inject diesel fuel into underground fissures, the agency has no way of enforcing that agreement nor of monitoring the companies’ actions. In communities faced with a coalbed methane rush — and its attendant hydraulic fracturing — many people have found the EPA’s conclusions immensely frustrating.
Then, in early October, a 30-year veteran of the EPA blew the whistle. Weston Wilson, an environmental engineer in the agency’s Region 8 Office, sent a letter to the Colorado congressional delegation revealing that the EPA’s own studies had shown that hydraulic fracturing could taint underground drinking water supplies.
Wilson is hardly a loose cannon or a disgruntled employee. Last year, Bureau of Land Management Director Kathleen Clarke flew to Denver to preside over a pizza party in his honor, and to award him a "Four C’s award" for his work involving coalbed methane development in the Powder River Basin. The Four C’s — "communication, consultation, cooperation, all in the service of conservation" — are the principles that Interior Secretary Gale Norton says guide her department (HCN, 5/24/04: A conversation with Interior Secretary Gale Norton).
In the 18-page technical analysis he sent to his congressional delegation, Wilson wrote that the EPA’s report was "scientifically unsound and contrary to the purposes of the law," and he warned that the agency’s "improper conduct … may result in danger to public health and safety." He also pointed out that the seven-person "peer review" panel that approved the report included five members with potential conflicts of interest: a petroleum engineer with BP Amoco, a technical advisor for Halliburton Energy Services Inc., an engineer with the Gas Technology Institute, and former employees of BP Amoco and Mobil Exploration.
Wilson says the decision to go public about the report was a difficult one: "You don’t know whether to fight or flee," he says over lunch in a downtown Denver diner, almost two months after writing his letter. "It’s hard. You argue with other employees, and you have no support from management."
But Wilson was "blindsided" by the EPA’s report, because management had kept "information hidden and secret," he says. "I realized that my colleagues inside the agency had let me down — long-trusted colleagues, too."
Wilson is disturbed by what he sees happening inside the agency today. "The pressure is on all the experts to be enablers, to be supportive of the (Bush administration’s) policies," he says. And it shows, he says, in the "lack of respect for science and intellectual reasoning by political appointees."
Weston Wilson is just one of many federal employee facing ethical dilemmas these days. It’s no secret that the Bush administration has taken a creative approach to science, particularly as it relates to natural resources, endangered species, global warming, air quality, and anything else that might impact the energy industry.
Last February, 60 scientists, including Nobel laureates, former agency directors and university professors, released a statement contending that "when scientific knowledge has been found to be in conflict with its political goals, the administration has often manipulated the process through which science enters into its decisions." It does that, the statement says, by placing unqualified people with conflicts of interest in positions of power, by censoring and suppressing information from government scientists, and by failing to seek independent scientific advice. By November, more than 5,000 scientists had signed the statement.
Some instances of manipulated science have made headlines. In 2001, for example, when Interior Secretary Gale Norton encouraged Congress to open the Arctic National Wildlife Refuge to oil and gas drilling, scientists revealed she had altered data from the U.S. Fish and Wildlife Service concerning caribou migration and breeding in the refuge. A 2002 decision to send water from the Klamath River to farmers on the California-Oregon border overruled the advice of agency biologists and caused the death of an estimated 58,000 endangered steelhead and salmon (HCN, 6/23/03: ‘Sound science’ goes sour). More recently, a decision not to protect the greater sage grouse under the Endangered Species Act was based, in part, on a scientific review that was heavily edited by a political appointee with no background in biology (see story, page 6).
Now that Bush has been re-elected, many federal employees are bracing themselves for four more difficult years. "I feel like I’m in downtown Beirut," says PEER’s Jeff Ruch, whose phone has been ringing constantly since Sen. John Kerry’s concession speech. "The employee paranoia level is through the roof."
Nervous federal employees are rescinding earlier offers to talk to reporters through PEER, says Ruch. It’s not just that they are afraid of repercussions, should their supervisors find out. Instead, says Ruch, "there is more of a sense that incurring any kind of risk is foolhardy, because it won’t make a difference."
During Bush’s first term, worried federal employees clung to the hope that, once voters realized how the administration and its political appointees threatened the environment and public safety, they would refuse to re-elect the president. "Before the election, that information (that scientists were making public) could have been the straw that broke the camel’s back," says Ruch. Now, there is a sense that nothing will change, that politics will continue to trump science.
One frustrated EPA official, who spoke on condition of anonymity, talks about how working on one environmentally destructive project after another begins to feel "futile." His only consolation, he says, lies in his ability to "make a terrible proposal a little less terrible."
A former Fish and Wildlife Service biologist says her work gave her "heartache," because every day, there was a "new horror." She wonders how other scientists can stay within the agencies under current conditions. "Perhaps they come up with justifications for whatever they’re doing, (and say) ‘I got a few acres for the salamander,’ " she says. "But in a true ecological sense, it’s meaningless. There is a continued loss of habitat, a continued fragmentation of habitat."
Frustrated employees tend to either leave the agencies — perhaps to work for private consultants or environmental groups — or else they learn to "lie low, put in their time and retire," says biologist Chris Hoagstrom, who worked for the Fish and Wildlife Service in Albuquerque for almost 10 years and is now in graduate school.
Those who try to defend the laws and science can face harsh consequences: In October, a U.S. Bureau of Land Management employee in charge of cleanup at Nevada’s Anaconda Mine was fired, he says, because he defended the environment and public health (see story next page). Earle Dixon says the company in charge of the cleanup was allowed to edit his presentation to a local community, removing any indication that drinking water contamination could be caused by the mine. When he discussed that fact with other BLM officials, he says, "The state director blew up and accused me of not being a team player."
"Team playing" with industry isn’t anything new to government, but it has intensified in recent years, says Russell Train, who was undersecretary of the Department of the Interior under Richard Nixon and the second-ever administrator of the EPA under both Nixon and Gerald Ford. "Business lobbyists in Washington have become very organized in environmental matters," says Train, who co-founded the World Wildlife Fund and, at the age of 84, still retains an office there in Washington, D.C.
Train believes that federal employees must resist the Bush administration’s "radicalism." "I recognize that at the present time, the freedom of action of many of those in public service is constrained by tight controls exercised by political appointees," he says. "It’s extremely important that these professionals, who make up the public sector, stick with it and do the best they can — because the alternative is worse."
How can public employees survive in this atmosphere of intimidation and censorship? One option is to blow the whistle — but surprisingly, Ruch and others in the business caution against it. Whistleblowing, they point out, rarely has the desired effect.
When Weston Wilson blew the lid off the frac’ing report, for example, he sent a flurry of activity through a few newspapers, most notably the Los Angeles Times, which broke the story. A handful of lawmakers, including Colorado Reps. Diana DeGette and Mark Udall, both Democrats, Rep. Henry Waxman, D-Calif., and Sen. James Jeffords, I-Vt., wrote letters of complaint to EPA administrator Mike Leavitt. The EPA’s Office of the Inspector General may open its own investigation, but as of early December, the office is merely in the "information-gathering stage," says spokesman John Manibusan, "and no decision has been made yet whether to conduct a review or not." For all intents and purposes, Wilson’s revelations seem to have fallen on deaf ears in Congress, where lawmakers are likely to vote on the revamped Energy Bill — complete with language exempting frac’ing from the Safe Drinking Water Act — early next year.
In 2002, after the Klamath fish kill, a NOAA Fisheries biologist revealed his agency’s complicity with the U.S. Bureau of Reclamation in lowering river flow recommendations under political pressure from the Bush administration. A few lawmakers, notably Sen. John Kerry, D-Mass., and Rep. Mike Thompson, D-Calif., called for an investigation. But despite the fact that a federal court agreed that the agencies had violated the Endangered Species Act, Congress never held any hearings, and the supervisor who instructed biologists to lower their water flow recommendations was promoted (see story next page). Two years after he first revealed problems at NOAA, Michael Kelly left the agency in frustration after another run-in with the same supervisor (HCN, 7/19/04: Scientific Principle: Klamath whistleblower throws in the towel).
No matter how noble their intentions — or how scandalous the actions of their agencies — whistleblowers are unlikely to find support from Congress, says Ruch: "The Republican chairs of the committees won’t even allow hearings."
And the personal consequences can be severe: "I don’t know of any instance where someone benefited their career by going public," says Ruch. "Whistleblowing is a radical, transformative experience." Ruch, who helped start PEER in 1992, worked within California’s state government for almost 20 years.
Ruch advises public employees to work behind the scenes, quietly moving information from their cubicles to the public domain. That way, he says, they shine the spotlight on the agency, rather than on themselves. "The source of the documents is absolutely irrelevant," he says. "By getting those out, (employees) force the public debate that they were unable to force internally within the agency."
Mick Harrison, an attorney formerly with the Washington, D.C.-based Government Accountability Project, agrees that civil servants are wise to keep a low profile. Every administration has retaliated against whistleblowers, he says, but "this administration is one of, if not the worst, for retaliating against employees that are even contemplating whistleblowing." Harrison, who is currently representing Earle Dixon, the former Nevada BLM employee, also represented U.S. Park Police Chief Teresa Chambers, who was fired in July after talking with a Washington Post reporter about budget shortfalls at the National Park Service (HCN, 8/16/04: Park police chief canned for candidness).
Still, there are laws that protect federal employees. Among them is the Whistleblower Protection Act, passed by Congress and signed into law by President George H.W. Bush in 1989. This law protects civil servants who expose violations of the law by agencies from retaliation by their employers. Violations can range from the misuse of funds and the abuse of authority to breaking laws and endangering public health. Only specific issues are covered under the law, and employees are not protected if they simply disobey supervisors and take the law into their own hands. Whistleblowing involves going public, formally asking for protection, and actively disclosing violations.
Technically, the government cannot fire an employee for abiding by federal laws. "Typically, when reporting on an environmental or safety violation, an employee is protected by law from retaliation," says Harrison. "They can’t be retaliated against, even if the violation turns out (not to have happened), as long as they acted in good faith."
A federal employee who has ethical concerns may doubt the safety or effectiveness of reporting the problem through the agency’s chain of command. But there are other options, Harrison says. He or she could send an anonymous report to the media, or to Congress, state agencies, environmental groups, or organizations such as Public Employees for Environmental Responsibility or the Government Accountability Project. But, Harrison cautions, "if you do it, do it carefully." For example, he says, "don’t leave your fax number on the fax you send. If the agency or company is going to know (the information) is coming from you, then you’re in a very difficult position." Harrison suggests that employees talk to an attorney before they do anything, even anonymously, and he advises that they make sure they have allies on the outside — environmental organizations, citizens’ groups or lawmakers.
Federal employees who wish to remain anonymous can also make use of the 1966 Freedom of Information Act (FOIA). This act allows citizens to formally request information from federal agencies in order to learn how policies are made or decisions reached. (States have their own "open records" laws, as well.) The Freedom of Information Act has changed over its almost four decades of existence, and administrations have interpreted it differently — President Clinton’s attorney general, Janet Reno, allowed agencies to share a wide array of documents, for example, while Bush’s outgoing attorney general, John Ashcroft, has tried to slam the door on FOIA in the name of national security. But despite these changes, the law is still a powerful tool, says Nick Schwellenbach, a fellow at the Washington, D.C.-based Project on Government Oversight. Requests should be specific, detailed, professional — and persistent, he says. Often, it can take more than a year for an agency to respond to a request.
"FOIA is a good way for people to see inside the government," says Schwellenbach. "If people don’t have the tools to see how their government works, there is no way they can reasonably decide if their government is serving them or not."
Administration higher-ups have forbidden employees in agencies from the EPA to the Forest Service to speak with the press without approval, and sometimes even without supervision. But public employees can help the FOIA process by tipping off the press, citizens or environmental groups, and quietly suggesting which documents to request. If the data within a particular report don’t support its conclusions or recommendations, they can point that out. They can also draw attention to data, memorandums or comments the public might not even know exist. "Most of our FOIAs are ghost-written by people who are the store holders of that information," says Ruch. Federal employees, he says, have "access to so much: perspectives and the knowledge of where the weak points are."
Political appointees and high-level managers may be clamping down on agency scientists and other public employees, but it’s a strategy that’s bound to backfire, according to Ruch, because it creates an atmosphere of distrust. "The pattern we’ve seen, particularly in the Interior Department, is (that) political appointees don’t trust civil service, and they don’t rely upon it," he says. "That’s one of the reasons people in those agencies will continue to leak like sieves."
Despite their current sense of helplessness, federal employees still have a great deal of power, says Ruch: "Civil servants can make profound changes. Nothing is more dangerous than one person who is well-positioned."
But there is only so much public employees can accomplish from within their offices. There also need to be watchdogs on the outside, waiting to pounce on whatever information they find, according to activists and some agency insiders. While he was at the Fish and Wildlife Service, biologist Chris Hoagstrom says agency scientists were often forced to take on the role of wildlife advocates. But that’s a role that citizens and environmental groups, not agency employees, should be playing, he says. Interested citizens need to show up at all the public meetings and get to know all the stakeholders on a first-name basis, he says. They need to know the ins and outs of the law and the regulatory process, "and they need to be more extreme than we are."
People can also work with their representatives in Washington, D.C., who are more likely on any given day to see a lobbyist than a citizen. Despite the vast amounts of money politicians receive from business interests, voters still hold the power. They can call, write or visit their congressional representatives and senators, asking them to investigate problems within the agencies. They can express their support for stronger environmental regulations or worker protections. If they don’t want their drinking water poisoned by benzene and diesel fuel, if they want their communities clean and their workers safe, they have to let their lawmakers know.
Frustrated citizens can also demand hearings, or sponsor their own. In the Great Lakes region, a coalition of environmental, health, labor and religious organizations held hearings beginning in the 1980s, and became an integral part of the EPA cleanup of the lakes. In 2000, the National Audubon Society of New York State wrote a cleanup plan for Long Island Sound based on what the group had learned during citizen hearings. More recently, citizens have been holding hearings on food safety and election reform. This fall, the nonprofit Campaign to Protect America’s Lands started holding hearings across the West about the protection of roadless areas and national parks.
If the lawmakers in Washington still don’t listen, citizens can act locally, says the EPA’s Wilson: "If the federal government lets you down, and the state government lets you down, keep pressing for accountability."
He points to Rosebud County, Mont., where in November, voters adopted stronger rules for oil and gas drilling (HCN, 11/22/04: Election Day surprises in the schizophrenic West). In La Plata County, Colo., in the late 1980s, residents worked with then-Rep. Ben Nighthorse Campbell to study the effects of drilling along the coal-bearing Fruitland Formation. After the studies proved that drilling had caused underground coal fires and methane seeps, state and federal officials enacted regulations that prevent any new wells from being drilled within a mile and a half of the outcrop.
More often than not, public involvement has a positive impact on projects, according to many agency insiders. One federal scientist notes that projects that arouse strong public interest — such as the proposed oil and gas drilling along Montana’s Rocky Mountain Front or on Colorado’s Roan Plateau — tend to have outcomes that are less damaging than the actions originally proposed. "You see a big difference in the kinds of proposals (that are approved) when interested communities are nearby," he says. "It’s easy (for both agency staffers and citizens) to wallow in self-pity. We need to see what’s still doable, what our opportunities still are."
On the hydraulic fracturing front, Weston Wilson’s voice lends credibility to an issue that citizens have struggled with for years. "It certainly helps to raise the profile (of the issue) when someone from within (speaks out)," says Gwen Lachelt with the Durango, Colo.-based Oil and Gas Accountability Project. "Until now, it has just been us on the sidelines, doing our ankle-biting." Now that the group has some knowledge about what’s been happening inside the EPA, it’s determined to investigate industry’s influence over the agency. Lachelt’s group has filed a Freedom of Information Act request for internal documents that might reveal how the EPA reached the decision to neither regulate nor study hydraulic fracturing.
Wilson put his neck on the line to get the inside story out, and so far, he hasn’t been retaliated against. Now, it’s up to the public to help put pressure on the EPA to regulate frac’ing and to move on to phase two of its study, says Lachelt. She also encourages voters to urge their lawmakers to oppose language in the Energy Bill that would exempt hydraulic fracturing from regulation.
The story is one sign that while industry and the Bush administration have forged a powerful alliance, citizens and civil servants can do the same. "Look at all these specialists working within the agencies — there are 200,000 officials dedicated to environmental protection that already work for the public," says Ruch. These people work for the American public, he adds, not the Bush administration. To make sure they can do their jobs correctly, "the public needs to raise hell however they can."
Laura Paskus is HCN assistant editor.
Public Employees for Environmental Responsibility
202-265-7337 or www.peer.org
Government Accountability Project
202-408-0034 or www.whistleblower.org
Project on Government Oversight
202-347-1122 or www.pogo.org
U.S. House of Representatives contact information,
U.S. Senate contact information,
U.S. Department of Justice Freedom of Information Act www.usdoj.gov/04foia/