Kohn, Kohn and Colapinto’s whistleblower attorneys have experience using whistleblower reward laws to address environmental crimes. Laws such as the False Claims Act, the Commodity Exchange Act, and Foreign Corrupt Practices Act have whistleblower provisions that can be used to combat criminal activity related to environmental crimes, including illegal fishing, illegal logging, and wildlife trafficking.
For example, illegal logging in a rain forest in Asia or South America can trigger violations of U.S. law. The False Claims Act, that has very strong qui tam whistleblower reward provisions, covers false statements on import or customs forms. It is typical that customs forms are falsified when lumber or fish harvested in violation of environmental laws are imported into the United States.
The major wildlife trafficking laws also have reward provisions, including the Endangered Species Act, have reward provisions. Unlike the False Claims Act and similar reward laws, the Endangered Species Act reward law is discretionary. However, as explained in the groundbreaking article by our partner Stephen Kohn, “Monetary Rewards for Wildlife Whistleblowers: A Game-Changer in Wildlife Trafficking Detection and Deterrence,” these laws can be used to reward whistleblowers.
Another law available to environmental whistleblowers is the Act to Prevent Pollution from Ships (APPS). The APPS incentivizes the reporting of pollution on the high seas. The law has transnational jurisdiction and numerous non-U.S. citizens have obtained rewards. Under the APPS federal court judges can award whistleblowers up to 50% of sanctions obtained when a seaman’s disclosures result in the successful prosecution of an ocean pollution case.
As set forth in the index of cases complied under the APPS, whistleblowers from numerous countries have obtained over $30 million in awards for reporting the illegal discharge of oil.
Anyone who witnesses an environmental violation should immediately contact an experienced whistleblower attorney. First, the facts of the case must be carefully screened to determine if the violation is covered under an effective whistleblower reward law. Second, because of the very short statute of limitations for filing a retaliation case, it is important to prepare for a potential employment case as quickly as possible.
The CAA, TSCA, WPCA, Superfund, SWDA and SDWA are older whistleblower laws and do not contain many of the more effective procedures contained in more recent whistleblower laws. They have very short statutes of limitation (30-days) and must be filed with the U.S. Department of Labor. However, the case law developed within the DOL has been fairly progressive and whistleblowers can obtain significant damages in DOL proceedings. The AEA is very similar to the other environmental laws, but it has a longer statute of limitations, and permits whistleblowers to remove their cases to federal court for a jury trial.
The only reward law directly related to environmental protection is the Act to Prevent Pollution on Ships (APPS) which covers pollution on the high seas. A federal court can award a whistleblower up to 50% of sanctions for APPS violations. However, environmental violations can trigger rewards under anti-fraud laws. For example, importing lumber that was cut from a protected area can constitute a customs violation under the False Claims Act. Likewise, paying bribes to obtain oil or mineral leases in developing countries can constitute violations of the Commodity or Security Exchange Acts or the Foreign Corrupt Practices Act.
The major federal environmental laws have anti-retaliation provisions that prevent discrimination against whistleblowers. These include the Clean Air Act (CAA), Safe Drinking Water Act (SDWA), Solid Waste Disposal Act (SWDA), Atomic Energy Act (AEA), Superfund, Water Pollution Control Act (WPCA) and the Toxic Substances Control Act (TSCA). Additionally, many states have laws or court precedents that protect environmental whistleblowers. These laws prevent employment discrimination, but do not allow for the payment of rewards.