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.
Current and former EPA employees, granted anonymity because they fear retaliation, were frustrated that the agency seemingly disregarded a career lawyer’s advice and chose to reprimand staff instead.
“It just confirms my suspicions that they had the end result in mind and worked backwards to justify it by any means possible,” said an ex-staffer.
One agency employee said leaders should have met with those who signed the letter.
“Instead of focusing on EPA’s mission, they perpetuate a culture of fear by punishing staff who speak up,” they said.
‘Legal analysis’ shared among leaders
Nichols’ email was included in a series of messages obtained by POLITICO’s E&E News under the Freedom of Information Act. Those records show his analysis was shared across the agency.
On the afternoon of July 2, 2025, Nichols emailed his advice to Krysti Wells and Kathryn Smith, both senior human resources officials. He followed up to say a colleague “planned to share my legal analysis with David Fotouhi this afternoon,” referring to the EPA deputy administrator.
Within the hour, Wells forwarded Nichols’ guidance to Helena Wooden-Aguilar, then deputy assistant administrator for workplace solutions, and Michael Molina, now principal deputy chief administrative officer and a Trump political appointee.
Later that night, Molina sent the email chain to other political appointees, Associate Deputy Administrator Travis Voyles and Molly Vaseliou, the principal deputy associate administrator in the external affairs office. “For situational awareness,” he said.
Rapp-Tully, an expert in federal employment law, cautioned it’s not known whether political leaders reviewed Nichols’ advice. In addition, they may have received other guidance before proceeding to discipline employees.
“It could have been a calculated risk of ‘OK, we understand that there might be potential liability, but these are the risks, this is how we assess it, and this is what we want to do moving forward,’” she said. “Not saying that was the right thing to do, but that’s what risk analysis is.”
Nichols also said in his email that a colleague checked with Justina Fugh, director of EPA’s Ethics Office, and “there are no ethics concerns with employees signing” the dissent letter.
Ethics officials at the agency didn’t see a problem with the letter either, E&E News reported last month.
“The employees are simply exercising their first amendment rights to express their opinions,” Fugh said in an email dated July 1 last year.
Citron Day pointed as well to the agency’s ethics office finding.
“There’s no guessing as to what the motivation was here, right?” she said. “This is clearly retaliatory. This is clearly protected speech. You have multiple people in EPA leadership acknowledging, confirming what our argument is.”
A second EPA employee said the agency not following Nichols’ guidance was “terrifying.”
“That is not a gray area or a misunderstanding,” the staffer said. “They made a grave error when they ignored sound legal advice in exchange for an emotional attack on their employees.”
EPA released Nichols’ advice in an earlier FOIA response. That email, however, was redacted to protect attorney-client privilege and the deliberative process.
EPA’s press office said the attorney’s email should not have been produced in response to E&E News’ FOIA request, considering it was privileged attorney-client communications. They added his advice was about risk of litigation, not on whether the agency would lose in litigation.
Overall, of those at EPA who signed the dissent letter, nine employees were removed, six probationary workers were terminated and over 50 staffers served two-week suspensions without pay, according to an estimate provided by American Federation of Government Employees Council 238, the agency’s largest union.
“The public health of all Americans suffers when EPA serves polluters over people and seeks to punish the scientists and engineers who speak out against it,” Miles Batson, the council’s executive vice president, said in a statement.
Batson added, “We are confident that once the EPA workers’ case is heard by an independent judge, their free speech rights will be upheld and justice will be done.”
‘Completely damning’
When the dissent letter was released, Trump EPA appointees began sharing it with each other.
Vaseliou sent a “digital copy” of the letter to Sarah Talmage, head of EPA’s congressional and intergovernmental relations office. Talmage later emailed its link to staff in her office handling House and Senate affairs.
“I assume you saw this. FYI,” Mallory Richardson, a senior adviser in the policy shop, said in an email to Vaseliou, with an “zeldin-letter-from-epa-workers.pdf” attachment.
Among others, EPA chief of staff Eric Amidon and Nathaniel Tisa, principal deputy general counsel, were included on an email related to a reporter’s questions about the dissent letter.
Press attention to the controversy grew over time. The agency sent up a media tracker to monitor coverage of the letter.
“So far, we have had 29 inquires since Friday,” Holran, in EPA’s press office, said in a July 7, 2025, email.
The agency conducted its own internal investigation too, searching computers and email accounts of employees who signed the dissent letter. They were also required to participate in a survey asking if they used government resources to view or sign the document.
Nine months since the letter’s release, Citron Day plans to push ahead with the fired staffers’ case and see them reinstated. She said Nichols’ email was “completely damning” for EPA.
“I think that this is going to be extremely difficult for the agency to explain away,” Citron Day said. “This essentially lays out what our arguments are — that this is targeted retaliation for EPA employees exercising their protected First Amendment rights.”
A third agency employee had a similar assessment, saying Zeldin’s choice was “a deliberate one.”
“I believe he intended to sow fear and make an example of these public servants,” said the EPA employee.
Contact Kevin Bogardus on the encrypted messaging app Signal at KevinBogardus.89.
