CPR Perspective: The Public Right to Know

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 more, 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, under a 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;
• 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;
• Securities and Exchange Commission (SEC) regulations that require publicly traded corporations to disclose environmental liabilities and pending enforcement actions above certain thresholds; and
• Clean Air Act (CAA) requirements that chemical plants using extremely hazardous chemicals over threshold amounts prepare and disclose risk management plans that assess the hazards from accidental releases, including the population potentially affected, and an evaluation of how far the releases could travel in a worst case scenario.

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. Likewise, the Massachusetts Toxics Use Reduction Act (TURA), passed in 1989, requires industrial facilities to publicly report on the quantities of toxic chemicals they use and generate as waste (as well as to prepare a toxics use reduction plan).

Apart from legislatively mandated programs, EPA has developed numerous tools to allow the public greater access to its storehouse of environmental information. For example, EPA’s Enforcement and Compliance History Online webpage (available at www.epa.gov/echo) enables the public and industry to directly access the current environmental enforcement and compliance records of more than 800,000 regulated facilities nationwide. This website received approximately 2.5 million visits in a little over its first three years of operation.

What People are Fighting About

Despite the broad benefits of providing information to the public, industry-backed groups in recent years have sought to curtail right to know laws and other government information-based programs, including TRI, the signature right to know law. Other efforts to restrict information have played on concerns about security and the “quality” of information disseminated to the public In 2005, EPA proposed three major changes to weaken the TRI program:

• Increasing by tenfold the threshold above which facilities must report certain toxic chemical releases. This would allow facilities to release up to 5000 pounds of toxic chemicals without publicly reporting the releases;
• Increasing the threshold above which facilities must report information about on-site persistent bioaccumulative toxins (PBTs), a particularly dangerous class of chemicals such as lead and mercury. This will allow facilities to withhold information about the uses and quantities of these PBTs;
• EPA announced that it intends to propose a rule reducing the frequency of required reporting for TRI releases from all facilities from every year to once every two years.

Another area of current controversy is whether state right to know laws should be preempted by the federal government. For example, industry groups have been pushing federal legislation that seeks to override the application of state right to know laws such as Proposition 65 to toxics in foods and other consumer products. One such measure, H.R. 4167, passed the House of Representatives in 2006 and is pending in the Senate. Industry groups likewise have been pressuring federal agencies like the Food and Drug Administration to issue letters or statements in an effort to bar state right to know initiatives. In 2006, a California trial court relied on an industry-prompted letter from FDA to block the State of California from requiring warnings to pregnant women about canned tuna containing mercury under Proposition 65.

Critics also have seized on security concerns following the September 11 attacks as a justification for withholding information from the public. At the end of the 107th 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 to government agencies by industry. This term, however, is defined so broadly that it could be interpreted to encompass virtually any information about a facility’s operations that might possibly prove useful to anyone trying to harm the facility, including information about health and safety performance, environmental releases, vulnerability to accidents, and so forth, and thereby chill the routine disclosure of environmental and health and safety information. For example, this designation was used by Federal Energy Regulatory Commission to withhold information from the Connecticut Attorney General about the design and safety plans of a proposed liquefied natural gas facility.

Industry critics also have suggested that environmental and health and safety information be subject to various new procedural hurdles and “quality” reviews.” Some argue for a right to judicially challenge the “quality” of data disclosed by EPA 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. Despite its benign name, the statute will likely delay, and in some cases eliminate, information provided to the public by EPA and other federal agencies.

CPR's Perspective

Right to know laws such as TRI have proven to be highly effective. From 1988 to 2004, for example, releases of chemicals subject to TRI reporting dropped by a remarkable 57 per cent, or 1.71 billion pounds (this figure covers those chemicals that have been on the list for this entire period). EPA officials, as well as environmentalists and regulated entities, regularly tout TRI as one of the nation's most effective environmental laws

Likewise, actions to enforce Proposition 65’s warning requirement have led to the elimination or reduction of toxics in numerous consumer products, such as ceramicware, brass faucets, calcium supplements, water filters, raincoats and other plastic clothing, children’s playground equipment, and portable classrooms. Additionally, other Proposition 65 lawsuits have led to signs in California grocery stores and restaurants warning consumers about the dangers of eating certain fish with high levels of mercury contamination. This information enables pregnant women and nursing mothers to avoid such fish and reduce their risk levels and the increased risk of brain damage children face because of their mothers elevated mercury levels. From the law’s inception in 1990 to 2004, facilities subject to the reporting requirements of Massachusetts’ TURA have decreased their toxic chemical use by 41%, reduced their generation of waste by 65% per unit of product, and slashed their releases of toxic chemicals by 91%.

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.

The CAA’s risk management planning requirements likewise have prompted significant hazard reductions. Since the program’s inception in 1999, there has been an 18 per cent decline in the number of hazardous chemical facilities that report a “vulnerability zone” (the area in which the population would be potentially affected by an accidental chemical release) of more than 10,000 people. A 2006 survey found that many of these facilities had switched from highly hazardous chemicals to safer chemicals or processes.

The cutbacks for TRI currently proposed by the Bush Administration would needlessly weaken the program. EPA’s primary justification for these changes is that they would reduce the reporting burdens for regulated facilities. But TRI imposes minimal direct compliance costs on regulated entities—it does not require them to utilize any pollution control equipment, or take any measures at all other than publicly reporting their releases. 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. In fact, it makes sound business sense for firms to regularly monitor and measure their releases of toxic chemicals. Indeed, some company executives credit the TRI program with providing them, for the first time, information about the volume of toxics they generate. Moreover, the releases that will be exempted by the new rules can be of great significance to local communities; over 900 communities would lose all numerical data on toxic releases, and over 4000 facilities would be able to stop reporting on their releases.

EPA also argues that switching to biannual reporting could save the agency $2 million every other year in administrative costs. But the TRI program already is extremely cost-effective. It runs on a budget of approximately $7 million, less than 1/10th of 1 percent of EPA’s annual budget. Switching to less frequent reporting would directly undermine one of the driving engines of the statute’s success—the ongoing glare of a public spotlight and the resulting incentives to continually reduce emissions-- and also deny communities with up to date information about local sources of pollution.

Because of its proven effectiveness, the TRI program should not be weakened by raising the threshold for when toxic releases must be disclosed, exempting PBTs from disclosure, or reducing the reporting period from once a year to once every two years. To the contrary, the TRI program should be expanded and improved, in at least two ways:

1. TRI should not be limited to its current 654 toxic chemicals, which represent a small fraction of the ecological footprint left by industrial activities. Corporations should be required to disclose the extent to which their facilities release greenhouse gas emissions, solid waste, and conventional air and water pollutants. Notably, the European Union currently requires broader environmental disclosures by corporations, including emissions of greenhouse gases and ozone depleting substances, and California likewise has proposed a mandate for disclosure of greenhouse gas emissions.
2. 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. Notably, the Attorney Generals of thirty-seven states are opposed to the bill currently pending in the Senate, H.R. 4167, on the grounds that it undercuts states’ rights and consumer protection.

Publicly-traded corporations are not required by current SEC rules to disclose indicators of environmental performance to investors. A growing body of research shows that firms with superior environmental records perform better than those with weaker records, which demonstrates that environmental performance can serve as an important indicator of the risk of investing in a firm. Thus, SEC rules should be expanded to require disclosure of other significant information about a firm’s environmental, health, and safety record (beyond simply penalties above a given threshold), including information about TRI emissions, warnings provided about company products pursuant to environmental disclosure requirements, and criminal enforcement and citizen-initiated enforcement of environmental, health, or safety laws. These reforms should be modeled after proposed British regulations that will require publicly-traded corporations to publish annual reports identifying and disclosing the social and environmental risks of their operations.

• Congress should not allow judicial review of complaints about information disclosed by agencies to the public.
• Congress should severely limit the “critical infrastructure information” provisions of the Homeland Security Act so that routine environmental and health and safety information cannot be kept secret from the public.

In Sum

Throughout society, the public is demanding more information and greater accountability from public and private institutions. Right to know laws promote democratic decision making, further autonomy interests, and lead to more efficient consumer and workplace markets. They are a potent and cost-effective way of reducing harmful environmental, occupational and other exposures. Federal right to know programs should be strengthened and expanded, and innovative state initiatives should not be preempted by federal law.