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Poisonous Procedural ‘Reform’: In Defense of Environmental Right to Know
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<-- Return To Right-to-Know or Left-to-Wonder?

Source: Georgetown Environmental Law & Policy Institute

Download: “Poisonous Procedural ‘Reform’: In Defense of Environmental Right to Know” (PDF format)

Georgetown Environmental
Law & Policy Institute

November 4, 2002

Georgetown Environmental Law & Policy Institute Publishes “Poisonous Procedural ‘Reform’: In Defense of Environmental Right to Know”

The Georgetown Environmental Law & Policy Institute released a paper today which responds to industry criticisms of environmental right to know programs and explains how industry’s proposed “procedural” reforms threaten to undermine these valuable programs. (Click here for a PDF versionof the paper.)

Information disclosure has become a widely used and highly valued tool for protecting public health and the environment, as illustrated by the success of the U.S. Environmental Protection Agency’s Toxics Release Inventory and California's Proposition 65. Disclosure programs are widely credited with achieving significant environmental improvements and empowering citizens to take a more active role in protecting their communities.

At the same time, information disclosure programs have come under increasing criticism from representatives of the industries whose facilities, emissions, and products are subject to public scrutiny as a result of these programs. The critics include such groups as the Coalition for Effective Environmental Information, the Center for Regulatory Effectiveness, and the American Chemistry Council.

Rather than directly challenge the legitimacy or value of information disclosure programs, the industry critics primarily focus on the administration of right to know programs, and advocate a series of “procedural reforms,” such as greater stakeholder involvement and increased opportunities for judicial review. Industry critics also call for limits on the disclosure of certain types of information in the name of protecting business secrets and national security.

The Institute paper, “Poisonous Procedural 'Reform': In Defense of Environmental Right to Know,” concludes that many of the industry proposals related to administrative process and judicial review would weaken information disclosure programs in order to address unwarranted or exaggerated concerns about the possible adverse effects of information disclosure. Greater procedural hurdles to information disclosure and more frequent judicial review would delay the disclosure of information, divert agency resources from information disclosure activities to costly and time-consuming internal reviews, and enhance opportunities for industry to influence specific decisions about whether and how environmental information should be disclosed.

The paper also criticizes some of the industry proposals for new substantive limits on information disclosure. The paper explains why, as a legal matter, businesses selling products to the public or emitting pollutants into the environment cannot claim an absolute right to block public dissemination of “confidential” information about their products or facilities and why, as a matter of public policy, disclosure of such information is often socially beneficial.

The paper acknowledges that proposals to limit access to information with genuine security implications have greater resonance, especially after September 11, but calls for a balanced approach. While recognizing the need to control access to certain information which might aid domestic or foreign terrorists, the paper explains how a greater danger may well be created by a failure to eliminate the hazards themselves or by not providing the public the information it needs to spur businesses and government to take corrective action.

Finally, the paper addresses the debate over right to know in the context of two current issues: implementation of the so-called “data quality rider” attached to the FY 2001 Treasury Department appropriations bill, and competing legislative proposals in Congress to address homeland security.

The paper was authored by John D. Echeverria, the Institute’s Executive Director, and by Julie B. Kaplan, the Institute’s Staff Attorney. Additional copies of the paper may be obtained by contacting the Georgetown Environmental Law & Policy Institute.

For further information, please contact the Institute at 202-662-9850 or at gelpi@law.georgetown.edu.

GEORGETOWN UNIVERSITY LAW CENTER
600 New Jersey Avenue, N.W. Washington, D.C. 20001 (202) 662-9850 (202) 662-9005 (fax) gelpi@law.georgetown.edu

Download: “Poisonous Procedural ‘Reform’: In Defense of Environmental Right to Know” (PDF format)

<-- Return To Right-to-Know or Left-to-Wonder?

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