Agency capture is a phenomenon that is unfortunate, but it does happen. The term refers to when an industry that is subject to regulation by a federal agency–like the Environmental Protection Agency (EPA)--is able to either staff the agency with personnel they approve of or in some way influence those who are tasked with supervision.
In other words, the industry ends up controlling the watchdogs under agency capture. When that happens whistleblowers need to step forward. A current example of this is the courageous work of EPA whistleblowers reporting lax supervision of chemical products.
The EPA’s Chemical Division has seen its scientists flag dozens of submitted products for high levels of toxicity. In spite of this, the EPA has not rejected any of these products. Why? According to whistleblowers, the Chemical Division program is the latest victim of agency capture.
“The depth of it is pretty horrifying”, said Kyla Bennett, who works for the Public Employees for Environmental Responsibility (PEER). It is PEER’s attorneys who are representing four scientists who have come forward as whistleblowers.
The scientists are doing much more than making charges. They are bringing evidence, ranging from documents to emails that back up their claims of agency capture. These scientists all report being pressured to speed up approval of chemical products.
“Managers seem to think their job is to get as many new chemicals on the market as fast as possible,” Bennett said.
How did agency capture do its work in this case? Industry-compliant managers altered risk assessments, accelerated the approval process, and sought to retaliate and harass the staff members who were brave enough to speak up. Furthermore, scientists were prevented from speaking with outside experts, a process the scientists consider vitally important to gaining an accurate risk assessment.
All of this ran afoul of the expressed desire of the United States Congress, which had passed legislation in 2016 aimed at tightening the chemical approval process, rather than loosening it.
How Did This Happen?
Motivation in cases like these can often be the source of speculation, but the reason can certainly be financial. It is not a question of outright bribery. Such blatantly criminal behavior is easier identified and prosecuted. Instead, the regulated industries take a longer view and create an atmosphere where personnel rotates between the private industry and the public agency that regulates it. Under these circumstances, an EPA official who didn’t “play ball” with the industry they oversee, might not find an open door the next time their own resume is being sent out.
Whistleblowers Are Protected
The importance of whistleblowers and their courage is evident, and it is backed up in federal law. The Federal Whistleblowers Enhancement Act makes it expressly illegal for a government employee to be subject to harassment, retaliation, or poor job performance reviews because of their actions to bring truth to light.
At John P. Mahoney, Esq., Attorney at Law, we’re proud to represent whistleblowers and fight to protect their legal rights. Our federal agencies are watchdogs. When the watchdogs go astray it’s the whistleblowers that keep us all safe. Don’t hesitate to call us today at (202) 350-3881 or contact us online if there’s something you’re seeing at your federal agency that you want to talk about with a lawyer.
