WASHINGTON, D.C. (E&E News) — A top EPA attorney warned of considerable blowback if the agency dished out discipline to employees publicly critical of the Trump administration.
Political leaders at EPA punished those staffers anyway.
Internal emails shed more light on last summer’s episode when the agency was rocked by an open dissent letter that castigated the administration’s disrespect for science and intimidation of staff. EPA suspended many and removed some who signed the letter — a move being appealed by fired staffers.
Yet before the agency sanctioned those employees, one of its own lawyers advised EPA to stand down.
Nate Nichols, assistant general counsel of the employment law practice group at EPA, said “my legal advice” was the agency should not take “personnel actions” or make any move that could be considered “retaliatory” or have “a chilling effect” on other staff.
“Taking any such action would present significant legal risk, as the letter is likely protected speech under the First Amendment,” Nichols said in an email sent July 2 last year.
He cited Pickering v. Board of Education, a Supreme Court decision reached almost 60 years ago that found the government has an interest in regulating its employees’ speech. But that ruling established “a balancing test” to protect First Amendment rights, which was if the workers speak as private citizens about “a matter of public concern” and it doesn’t interfere with their government jobs.
“The document appears to meet the Pickering test and the Agency would be prohibited from retaliating against employees who signed the document,” Nichols said, noting the signatories said the dissent letter was produced on their own time.
He added the letter was “unquestionably” about public concerns and courts have found, depending on a government employee’s job, their private speech has minimal impact on agency operations.
“If the agency retaliates against the employee signatories, we should expect a litigation with significantly increased publicity surrounding the letter,” Nichols said.
The letter, called EPA’s “Declaration of Dissent,” was emailed to Administrator Lee Zeldin and posted online on June 30, 2025. Stand Up for Science, a nonprofit group, helped organize the dissent letter, which initially had names and job titles for some of the employees who signed on.
Despite Nichols’ advice, EPA on July 3 placed close to 150 employees on administrative leave.
“We have a ZERO tolerance policy for agency bureaucrats unlawfully undermining, sabotaging, and undercutting the agenda of this administration as voted for by the great people of this country last November,” Zeldin said in a statement at the time.
By summer’s end, EPA suspended many and fired some of those employees after they spent weeks on leave.
‘He may have a point’
Stephanie Rapp-Tully, a partner at law firm Tully Rinckey, said Nichols’ guidance could undercut arguments the agency would make in court as it defends terminating dissent letter signers.
“Based on that balancing test, he may have a point, and that could be a good defense for an employee who did face an adverse employment action,” said Rapp-Tully, referring to the EPA lawyer’s email.
She added, “I think the fact that this information and analysis exist, it could be very unfortunate for the EPA in terms of the litigation that they have ongoing with these employees.”
Joanna Citron Day, general counsel for Public Employees for Environmental Responsibility, said Nichols’ analysis that the letter was protected speech is “a stunning admission” by the agency.
“It is disheartening. It is shocking. It is horrific,” Citron Day said. “It is our government being turned against us and firing people for exercising their constitutional rights.”
PEER is part of the legal team representing six former EPA employees who were fired after they signed the letter. They filed an appeal with the Merit Systems Protection Board last December, which remains ongoing, Citron Day said.
In response to questions for this story, EPA spokesperson Carolyn Holran said, “We stand by our statement, which remains true: The Environmental Protection Agency cannot fulfill its mission without a zero-tolerance policy for staff undermining, sabotaging, undercutting or misrepresenting the administration’s agenda or actions to the public.”
Nichols’ email was preliminary staff-level legal advice provided on the dissent signers generally and doesn’t apply to any particular individual who signed the letter, according to EPA’s press office.
