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Right to Know

The Public’s Right to Know

Background

Over the past two decades, right to know laws have become one of the most innovative and effective means for protecting the environment and public health. These laws, also known as information disclosure statutes, serve a number of broad and important societal interests.

Right to know laws help improve the efficient functioning of the market. Armed with better information, consumers can make more informed decisions, and press for safer products. Better informed workers can negotiate for less toxic working conditions, or demand wage premiums for hazardous jobs. Investors in securities markets can act more knowledgeably; indeed, studies show that stock prices react significantly to the release of environmental information: upward when information reveals a firm's superior performance; downward when poor performance is revealed.

Right to know laws also serve fundamental liberty and autonomy interests. They provide individuals with knowledge of the risks involved in their choices and allow them to decide whether or not to encounter these risks. To paraphrase a Congressional sponsor of right to know legislation, Americans believe that they have a fundamental right to know what goes into the air their kids breathe, the water they drink, and the ground they play on.

Right to know laws also promote democratic decision making and the power of ordinary citizens. Equipped with better information, citizens can participate on a more equal footing with regulated entities in permitting, land use, and other political decisions. Local residents and members of the public can exert pressure on firms to reduce risky activities or eliminate unnecessary toxic exposures. Right to know laws also can improve health and safety, by facilitating emergency planning, avoiding accidents, and helping the government determine areas in need of additional regulation. They also provide strong incentives for firms to undertake self-regulation and reduce risky activities: when companies face a choice between, say, disclosing harmful substances in their products and reformulating the products to eliminate the harmful substances, often they choose to eliminate the substances.

Laws utilizing information disclosure requirements can take a variety of forms – warnings, informational labeling, worker training and notification, or community reporting and disclosure. The most important federal right to know law is the Emergency Planning and Community Right to Know Act, adopted by Congress in 1986 in response to the disastrous accident at a chemical plant in Bhopal, India in 1984 that killed more than 3,000 people and injured thousands others, as well as other chemical spills in the U.S. Among other things, the act requires that industrial facilities report their annual releases and transfers of 654 specified toxic chemicals (this program is known as the Toxic Release Inventory, or TRI). The information is provided on standardized reporting forms that are submitted to EPA and state officials. EPA is required to make the information available to the public through a national computerized database accessible through personal computers.

Other federal information disclosure programs include the

• Hazard Communication Standard, (administered by the Occupational Safety and Health Administration), which requires employers to warn their employees about chemical hazards in the workplace;

• "Beach Bill" (enacted by Congress in 2000 as an amendment to the Clean Water Act), which requires states to notify the public when beaches become unsafe for swimming or other recreational activities;

• the Safe Drinking Water Act, which requires public water suppliers to inform their customers when they exceed contaminant levels or fail to monitor drinking water, and to mail to customers an annual customer confidence report describing the level of contaminants in the system and the health concerns associated with each contaminant; and

• Securities and Exchange Commission regulations that require publicly traded corporations to disclose environmental liabilities and pending enforcement actions above certain thresholds.

States and local governments have also adopted a variety of right to know programs. For example, California's Proposition 65, adopted as a voter initiative in 1986, requires that businesses provide warnings prior to exposing individuals to listed carcinogens and reproductive toxins. Proposition 65 has led to the elimination or reduction of toxics in numerous consumer products, such as ceramicware, nail polish removers, lead foil caps on wine bottles, submersible well water pumps, brass faucets, calcium supplements, and hair dyes. It also has prompted reductions in air emissions of certain toxic chemicals of approximately 85%.

Apart from legislatively mandated programs, EPA has developed numerous tools to allow the public greater access to its storehouse of environmental information. For example, along with the Environmental Council of States, EPA started a project in 2002 (called Enforcement and Compliance Online) enabling the public and industry to directly access the current environmental enforcement and compliance recordsof more than 800,000 regulated facilities nationwide. EPA has placed a great deal of other very informative material on its web site, which receives over 50 million visits per month.

What People are Fighting About

Despite the broad benefits of providing information to the public, industry-backed groups have started criticizing right to know laws and calling for restrictions on these and other EPA information-based programs. The critics have recommended a variety of procedural reforms to limit government disclosure of environmental information.

One major justification for withholding information is the possibility that terrorists will use it to attack vulnerable facilities. In the aftermath of the September 11, 2001 attacks, government agencies, conservative think tanks, and industry groups have lobbied to remove information not only from the world wide web, but also from public reading rooms. At the end of the 107^th Congress, a little-noticed provision was enacted as part of the Homeland Security Act that bars the disclosure of “critical infrastructure information” that is “voluntarily” submitted by industry. Risk audits are explicitly included in this definition. (See CPR Perspective, Secrecy) It remains to be seen whether this provision will chill the routine disclosure of environmental information.

Industry critics also have suggested that environmental information be subject to various new procedural hurdles and “quality” reviews. Some proposals would provide industry with the right to comment on and participate in EPA decisions about whether to release public data, which industry has labeled “information products.” Others would establish a right to judicially challenge implementation of EPA disclosure programs, including the “quality” of data disclosed to the public. For example, the so called “data quality” appropriations rider adopted by Congress in 2001 requires that agencies ensure the quality of information that they disseminate, and provide an administrative mechanism for persons to seek to correct inaccurate data.. (See CPR Perspective Series, “The Data Quality Appropriations Rider: New Procedures and Information Disclosure.”) Other proposals call for EPA only to release information after it defines the “purpose and audience” for the data and “beta-tests”it to make sure the public understands it, and to limit the use of information disclosed to the public for specific purposes. Industry advocates additionally call for expanding the category of information that is considered confidential trade secret and thus exempt from disclosure, in some cases to include basic emissions data from regulated facilities.

Another area of controversy is whether or not state right to know laws should be preempted by the federal government. For example, industry groups are likely to introduce legislation in the 108^th Congress (as they have done numerous times in the past) that seeks to override the application of Proposition 65 to toxics in foods and other consumer products.

CPR's Perspective

Right to know laws such as TRI have proven to be highly effective. From 1988 to 2000, for example, releases of chemicals subject to TRI reporting dropped by a remarkable 48 per cent. Some company executives credit the TRI program with providing them, for the first time, information about the volume of toxics they generate. (That a federal law would be necessary before company executives would learn about the volume of their own pollution helps to illustrate the problem of corporate accountability for information about risks, discussed in another Perspective. (See CPR Perspective, Corporate Accountability) Information disclosure laws like TRI program also are extremely cost-effective. EPA's direct administrative costs for TRI are approximately $25 million, a tiny share of the agency's budget. TRI also imposes minimal direct compliance costs on regulated entities. And if firms choose to reduce harmful pollutants as a result of their reporting obligations, they have absolute flexibility in determining how and when to do so. EPA officials, as well as environmentalists and regulated entities, regularly tout TRI as one of the nation's most effective environmental laws.

Similarly, OSHA's hazard communication standard has been very effective in informing workers about the risks of many of the chemicals to which they are exposed in the workplace. The material safety data sheets that manufacturers of chemicals must prepare to accompany those chemicals as they move through various workplaces have become an important source of information for both workers and consumers. Workers with sufficient bargaining power have used the information that the hazard communication standard has made available to them to demand safer working conditions or higher wages.

Reforms that subject the disclosure of public environmental information, such as TRI data, to substantial new procedural hurdles threaten to substantially undermine one of the principal virtues of right to know laws - their ease and administrative simplicity. These reforms would delay the disclosure of public data and bog down agencies in time-consuming and lengthy analyses – precisely the type of rulemaking “ossification” that has hampered other types of environmental regulation for the past two decades. The data quality rider, for example, is likely to delay, and in some cases eliminate, the flow of data from the government to the public. (See CPR Perspective, Data Quality)

Moreover, attempts to manage or limit the environmental data that is released to the public are fundamentally undemocratic. They presume that only "experts" or regulated entities can cope with or process certain types of environmental information, and not the public, which is most impacted by exposures to toxics and other pollutants. Thus, for example, EPA should not be required to “beta-test” data before it is released - -EPA’s disclosure of information to the public about health and environmental risks is not the equivalent of marketing a product like shampoo to the public. The better approach is for EPA to disclose the information it has along with whatever uncertainties or assumptions about the data exist, and let the public decide for itself how much weight to accord the data.

In addition, the claims of industry that environmental data disclosed by government agencies to the public are of poor quality are largely unsubstantiated. In fact, the evidence suggests that there are relatively few instances of erroneous data reported by EPA to the public. And to the extent that there are problems with information that EPA releases – a good portion of which comes from regulated entities themselves – public disclosure creates important incentives for improved data quality. According to EPA, this is precisely what has occurred with its Sector Facility Indexing Project (SFIP), which provides public access to the compliance records, emissions, and other environmental impacts of hundreds of large industrial facilities. Finally, there is little if any evidence that competitors have been able to usecurrently publicly available environmental information to form a “mosaic” that reveals confidential data about other firms their competitors, evidence needed to justify a more expansive definition of protected “trade secret” data.

Thus,

• Current information disclosure laws should not be hobbled by procedural reforms that will delay or block the release of public data.

• Congress should not allow judicial review of complaints about information disclosed by agencies to the public. (Link to CPR Perspective Series, “The Data Quality Appropriations Rider.”)

• Because of its proven effectiveness, the TRI program should be expanded and improved, in at least three ways:
  1. TRI data should be reported more promptly to the public. There is currently a two year time lag between when companies report releases and when these releases are disclosed to the public, even though EPA receives most of the TRI data electronically and could release it almost immediately.
  2. The TRI program should be expanded to require reporting of information of about chemical use, as well as releases. Such reporting would provide the public with important information about potential risks posed by facilities in their communities, and also create additional incentives for firms to reduce their generation and use of toxic chemicals.
  3. The TRI program should be expanded to cover additional sources such as sewage treatment plants, hospitals, service businesses like dry cleaners and auto service stations, airports, and pesticide runoff, since releases from these exempted sources may very well exceed those that are covered by TRI

• Efforts to preempt successful state and local right-to-know laws, such as California's Proposition 65, should be resisted. States should be allowed to experiment with innovative statutes that fill regulatory gaps left by federal law.

• The right to know concept should be expanded to provide information to other people who are exposed to hazards posed by pollutants and products and food items. For example, consumers have a right to know whether the food they are consuming has been genetically modified to contain pesticides or other potentially dangerous proteins.

In Sum

Right to know laws have proven to be a very potent, cost-effective way of reducing harmful environmental, occupational and other exposures and an important alternative to traditional forms of regulation. Information released by these laws and other EPA information-based initiatives has a public character, reflecting emissions that affect communities surrounding polluting firms, a corporation’s compliance with requirements designed to protect the public, and similar information. The major federal right to know program, TRI, should be strengthened, and successful state right to know initiatives should not be displaced by federal law.