Antioch Law Journal


In 1978 Congress amended the Energy Reorganization Act in order to protect whistleblowers - employees who disclose potential violations of nuclear health and safety laws - from retaliation by their employers. 1 Since passage of the nuclear whistleblower protection amendment, the circuit courts of appeals are divided over the issue of what constitutes protected activity.The U.S. Court of Appeals for the Fifth Circuit held in 1984 that an employee must contact a "competent organ of government" to be protected. 2 The U.S. Courts of Appeals for the Ninth and Tenth Circuits have disagreed, and have held that employees who disclose potential health and safety violations directly to their supervisors are protected against discrimination, even if there has been no direct notification to the Nuclear Regulatory Commission (NRC). 3 The Supreme Court, with three Justices dissenting, has recently denied certiorari of the utilities' appeal of the Tenth Circuit decision.4 In this Article we shall examine the public policy, legal, and regulatory issues raised as a result of this split on the issue of the scope of protection in the circuit courts of appeals. These issues go to the heart of the viability of nuclear whistleblower protection.