A bipartisan quartet of senators last week reintroduced legislation aimed at protecting employees of the Department of Energy and the Nuclear Regulatory Commission who report nuclear safety violations.
The bill—straightforwardly titled the Department of Energy and Nuclear Regulatory Commission Whistleblower Protection Act (S. 2896)—is sponsored by Sen. Tammy Duckworth (D., Ill.) and cosponsored by Sens. Chuck Grassley (R., Iowa), James Lankford (R., Okla.), and Ron Wyden (D., Ore.). Duckworth had introduced the legislation twice before, in May 2018 and May 2019.
According to a September 29 joint press release from the senators, although Congress in 2005 amended the Energy Reorganization Act of 1974 to extend whistleblower protection rights to DOE and NRC employees, administrative law and appeals court judges “subsequently determined that such complaints ... would be summarily dismissed, because Congress did not provide the clear and unequivocal waiver of sovereign immunity under Section 629 of the Energy Policy Act of 2005 that the Supreme Court of the United States requires to enable whistleblower protection claims to be enforced against the United States government.” (Sovereign immunity is the legal doctrine that says a government can’t be sued without its consent.)
Words matter: In April of this year, a three-judge panel of the Fourth U.S. Circuit Court of Appeals unanimously ruled that the NRC has sovereign immunity in whistleblower lawsuits brought by its employees, dismissing a nuclear engineer’s claim that he was denied promotions after raising safety concerns with the agency. The ruling cited the language of the Energy Reorganization Act, which requires whistleblowers to have been retaliated against by a “person.” Judge J. Harvie Wilkinson wrote: “Including the government within the meaning of ‘person’ would raise a host of new issues, ranging from the merely befuddling to the truly bizarre, such as allowing the government to bring criminal or civil enforcement proceedings against itself .”
S. 2896 would expand the definition of “person” to include the DOE and the NRC.
A word from the sponsor: “Every individual should be protected when blowing the whistle on a nuclear safety violation, which is why Congress was right to act more than 15 years ago to ensure civil servants at the Department of Energy and Nuclear Regulatory Commission received the same whistleblower protections and due process rights as nuclear energy industry employees,” Duckworth said. “The legal loophole that now denies DOE and NRC employees full whistleblower protections when engaging in protected activity ultimately weakens oversight, accountability, and public confidence in the industry, and I am grateful to be working with a strong bipartisan coalition that shares my commitment to swiftly fixing this problem.”