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1 ~
Harnessing the "Power of Information"
.
Environmental Right to Know
as a Driver of Sound Environmental Policy
Jeanne Herb, Susan Helms, and Michael J. Jensen
A REVOLUTIONARY CONCEPT
The Emergency Planning and Community Right-to-Know Act (EPCRA)
of 1986 (under the Superfund Amendment and Reauthorization Act, Title
III) delivered a new concept in federal environmental policy: the concept
of government as a broker of information to which the public has the "right to
know." Up until that time, environmental policy at the state and federal level
was dominated by air-, water-, and hazardous waste-specific "command-
and-control" regulatory approaches. Those conventional approaches oversaw
industry operations from a fragmented perspective; overly prescribed expensive,
technology-based solutions to industry rather than providing incentives for sound
and lasting environmental performance; and did not recognize the role or value
of public accountability. The initial reports from the Toxics Release Inventory
(TRI) under EPCRA in 1987 were eye opening to most observers both within
and outside the U.S. Environmental Protection Agency (EPA) (Wolf, 1996~.
The sheer size of allowable emissions reported under TRI, the cross-media trans-
fers of pollutants, and the uncertainty of risk implications led the public, regula-
tors, and industry managers to question the viability of traditional regulatory
approaches.
TRIP s results were so significant, in fact, that they contributed to a rethink-
ing of regulatory mechanisms within and beyond the EPA (1997~. Although
legislation predating TRI, such as the 1974 Freedom of Information Act, may be
said to have established the public right to access information, it was the Toxics
Release Inventory that shortcut the bureaucratic information request process and
made data truly accessible. It made popular the notion that "providing public
253
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254
HARNESSING THE "POWER OF INFORMATION"
access to environmental databanks is an innovative effort to reduce the role of
big government bureaucracy" (Khanna et al., 1998:33~. The concept of "the
power of information" has become a cornerstone of EPA efforts to develop
environmental policies that not only deliver better environmental results, but
also do so more cost-effectively (U.S. Environmental Protection Agency, 1999~.
Some argue that the concept of public right to know has emerged as "a political
idea that justifies mandatory and quasi-mandatory 'voluntary' reporting programs
that the Agency could only imagine a few years ago" (Outer, 1999~. Right-to-
know laws since have expanded from environmental health (such as TRI, Occu-
pational Safety and Health Administration (OSHA) material data safety legisla-
tion, and carcinogens under California's Proposition 65) to cover issues as diverse
as discrimination (such as in the Home Mortgage Disclosure Act) and customer
service statistics (airline delay and baggage-handling records) (Graham, 2000~.
Triggered by the 1984 chemical accident in Bhopal, India, Congress enacted
EPCRA based on the philosophic underpinnings that citizens who are informed
about hazardous chemicals in their communities can make more educated deci-
sions about their own protection. Yet putting chemical release data that are
gathered via TRI into the public domain is intended to have an even broader
effect than on citizens in local communities. Although the political rhetoric
surrounding EPCRA was on empowering local citizens to make personal deci-
sions, the sheer public nature of the data is intended to drive environmental
performance at industrial facilities by affecting a host of sectors in society, as
illustrated in Figure 15-1.
SUCCESSFUL RESULTS
TRI generally is seen as a tremendous success. The U.S. General Account-
ing Office estimated that "over half of all [TRI] reporting facilities made one or
more operational changes as a consequence of the inventory program" (U.S.
General Accounting Office, 1991:61~. The EPA credits a 40-percent reduction
in toxic chemical releases to TRI (Outer, 1999~. This may be an exaggeration,
because many state and local regulations and programs targeted chemicals that
were listed under TRI. However, the fact that an effect of such magnitude could
be attributed to this single law is astounding, particularly when compared with
the small impacts of much more expensive and complicated legislation (Fung
and O'Rourke, 2000~.
TRI's strengths also are accompanied by weaknesses. The minimal over-
sight of the EPA in TRI reporting and interpretation is a significant (if initially
unintentional) feature of the policy, which has other consequences besides tax-
payer savings. The EPA sets no standards, gives only a limited technical review
to the self-reported data, and has an extremely weak monitoring and enforce-
ment system inspections are limited to a small percentage of reporting firms
per year (Fung and O'Rourke, 2000~. Because the universe of chemicals regu-
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JEANNE HERB, SUSAN HELMS, AND MICHAEL J. JENSEN
Sector: State and federal
policy makers
Purpose: Strategic planning, trends
analysis, facility targeting, compliance
~ccict~n~P
~ .. 1
Sector: Community members and
organizations
Purpose: Local community action,
dialogue with local industrial facilities,
personal decision making
Sector: Environmental
Nongovernmental Organizations (NGOs)
Purpose: National environmental
trends, legislative and regulatory
initiatives, state-by-state comparisons,
interstate industry targeting
1
_~"Right-to-know" ~
l Environmental l
Information J
~ l
FIGURE 15-1 Impacts of right to know on societal sectors.
255
Sector: Financial institutions
Purpose:Assessment of industrial
sector and individual facility
competitiveness, innovation and
efficiency, short-term decision making
and long- term planning, liability
planning
Sector: Industry
Purpose: Internal strategic planning,
pollution prevention targeting,
community outreach, chemical
tracking
lated under TRI remains small compared to the universe of chemicals in com-
merce, companies can in some cases switch to similar, off-list chemical variants
to avoid reporting (Dernbach, 1997~. In addition, "phantom reductions" have
been reported due to changes in reporting methodologies such as redefining on-
site recycling as in-process recovery (Nathan and Miller, 1998~. In what is per-
haps TRI's greatest shortcoming, nearly a third of companies each year simply
fail to report (Fung and O'Rourke, 2000~.
The general hands-off approach to TRI data also has consequences on the
user end. The data gathered under TRI sometimes are considered difficult for
citizens to understand and fully utilize (Grant, 1997; Helms, 1997~. Reporting
firms contend that the data can be misrepresentative without context. Critics
also rightly emphasize that chemical volumes are alone poor indicators of human
health risks. These interpretive weaknesses increasingly are being addressed by
both governmental and nongovernmental tools, as noted later in this chapter.
The deepest criticism leveled at TRI, and right to know generally, questions
the underlying basis of disclosure that available information will lead to more
rational decision making. Often there will be some scientific or practical dispute
regarding what interpretation of the data is rational. Information also can be
used in negative ways, such as undermining proprietary business rights or for
terrorist sabotage an argument used to restrict EPA disclosure of the potential
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HARNESSING THE "POWER OF INFORMATION"
impact of chemical accidents (Tetreault, 2000~. Do the new risks accompanying
disclosure compare with the old risks hidden before disclosure? Does right-to-
know information create another threat, or by helping to reduce tonics, eliminate
the root of this threat?
Despite its widely recognized limitations, TRI continues to be viewed as an
environmental success story. Its success is recognized by policymakers, indus-
trial managers, and environmentalists (Hearne, 1996~. Popular and academic
research points to the tangible impact that TRI has had on the various societal
sectors; TRI is now believed to be used regularly by citizens, community organi-
zations, organized environmental groups, industry managers, state and federal
agencies, lawyers, investment advisors, and the media, as will be described in
the following paragraphs (Fung and O'Rourke, 2000~.
Community Members and Organizations
One early survey indicated that TRI was being used in a variety of ways,
including:
.
.
Advocating for legislative and regulatory changes,
· Comparing a facility's emissions against permit records,
· Exerting public pressure on facilities,
Planning for emergencies,
· Supporting direct negotiations between industry and citizens (Lynn and
Kartez, 1997~.
National environmental organizations have documented examples in which
citizen organizations have directly used TRI data in organizing community ef-
forts, negotiating with individual facilities, and advocating for new environmen-
tal programs (Working Group on Community Right to Know, 1991~. They have
also produced guidance for local community groups to use in applying TRI as a
tool in community action efforts (Wise and Kenworthy, 1993~.
Financial Institutions
Investment, insurance, and debt markets operate based on corporate disclo-
sure of financial statistics and risk (for example, the information regulated by the
Securities and Exchange Commission). Corporate environmental information,
including TRI emissions, is used to a limited extent for purposes such as gauging
liability, investment decision making on an ethical basis, or evaluating firm or
industry standing in regard to strategic environmental opportunities and threats.
Event studies indicate that environmental disclosures, including TRI release data,
can affect stock prices in the short term (Hamilton, 1995~. Studies also seem to
indicate a small but positive correlation between firms' longer term stock prices
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JEANNE HERB, SUSAN HELMS, AND MICHAEL J. JENSEN
257
and their environmental performance, which encourages the concept that finan-
cial markets may at some point provide incentives for firms to improve their
environmental behavior (Konar and Cohen, 1997.
Industry
Part of the philosophic underpinning of TRI is that the public disclosure of
industry environmental performance will motivate industry to take actions to
prevent itself from being viewed as a poor environmental performer. Analyses
both inside and outside EPA point to such results, while acknowledging that it is
impossible to draw a direct and conclusive connection between TRI alone and
industry environmental management. One survey reported that 67 percent of
firms reduced TRI released per unit of production and noted that protecting the
health of facility employees and complying with state or federal regulations
outranked all other factors as to why they reduced releases (Santos et al., 2000~.
Less research is available pertaining to the effect that TRI data have as an effec-
tive tool for internal industrial strategic planning. However, information that is
available tends to note that TRI can serve as one of many tools for industry to
internally identify priorities, engage in dialogue with the local community, and
track tonics (Kerr et al., 2000~. TRI also has played an integral role in voluntary
pollution reduction efforts within industrial sectors, such as the American Chem-
istry Council's Responsible Care program.
National Environmental Organizations
TRI has become the cornerstone of several leading national environmental
organizations' efforts to track industrial environmental performance trends, pro-
mote local citizen access to environmental information, undertake direct negoti-
ations with industrial facilities (Natural Resources Defense Council, 1999), and
promote changes to environmental policies. Organizations that are active users
of the data include the Working Group on Community Right to Know, National
Environmental Trust, Environmental Defense, Natural Resources Defense Council,
the U.S. Public Interest Research Group, Good Neighbor Project, and the watch-
dog group, OMB Watch. In addition to applying data gathered under TRI, part
of these national organizations' efforts involve making the data more accessible,
contextualized, and useful to citizen organizations (see http://www.scorecard.org).
State and Federal Policy Makers
Clearly, TRI has been a tremendous resource for government agencies at the
federal and state levels. It contributed to the design and development of several
voluntary initiatives, including the EPA 33/50 and Performance Track programs.
It is an important internal planning tool for various regulatory and nonregulatory
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HARNESSING THE "POWER OF INFORMATION"
initiatives at the EPA, and it provides an annual assessment of toxic chemical
releases nationally. States have employed the data in a variety of ways, includ-
ing developing pollution prevention programs, implementing compliance assis-
tance efforts, formulating internal strategic plans, and tracking industrial pollu-
tion trends (Kerr, 2000; Aucott et al., 1996~.
INFORMATION AS A DRIVER OF ENVIRONMENTAL POLICY
The general success of TRI leads us to consider how to best maximize the
concept of using environmental information and its disclosure to cost-effectively
drive improvements in environmental results. Several elements are critical to
the successful implementation of environmental information. Although they are
interrelated and mutually reinforcing, it is useful to disaggregate them and con-
sider them separately, as one might examine each link in a chain. Broadly
speaking, it is critical to have high-quality information and a means of distribut-
ing and sharing that information, then empowering people to act on that informa-
tion. These general stages are listed in Figure 15-2.
Refining information content, for example, requires not only that regulatory
agencies demand more emissions data from facilities, but that the data requested
help answer important questions; that the data are clear with respect to units,
time periods covered, and information that may be excluded (e.g., fugitive emis-
sions); and finally, that the data are put into context with regard to a facility's
contribution to a particular issue as a whole, changes over time, and potential
health impacts.
Similarly, exploring information uptake more finely reveals that for informa-
tion to be distributed effectively, it needs to be widely available to those with and
without computers, and people need to know the information exists. In this arena,
environmental information managers can borrow tools from the marketing indus-
try to make their product as user-friendly and widely recognized as possible.
Information may satisfy the curiosity of some people, but it will do little as a
lever for change unless users are empowered with the tools for action. Specifical-
ly, users need both a meaningful reason (motivation) to track down information
and the skills to take advantage of it, whether it influences individual choices such
as the products they purchase or where they live, or actions at a broader level such
as dialogue with polluters, watchdog coalitions, letter campaigns, or legal actions.
Information is power, and the goal of improving environmental information should
be to empower all stakeholders to make fully informed decisions.
Finally, although the stairstep diagram appears to be a unidirectional model,
it is important to revisit each step over time so that each step can be enhanced by
what society learns. For example, if people are not motivated to retrieve avail-
able information, then providers should listen to those potential users and deter-
mine what the barriers might be. Then providers will be able to address the
clarity and content or the availability and user-friendliness of the information.
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JEANNE HERB, SUSAN HELMS, AND MICHAEL J. JENSEN
259
Content
Uptake
FIGURE 15-2 Information disclosure: Elements of success.
Action
Thus, achieving success is not a matter of one trip up the steps, but a matter of
making numerous revisions along the way.
FUTURE ENVIRONMENTAL POLICIES
Recognizing the contributions that have been made by TRI and the right-to-
know concept overall, and considering the necessary elements to ensure the
success of environmental information, it is timely to consider what new policies
are needed to maximize the impact that environmental information can play as a
driver of policy. Four recommendations follow:
1. Promote states' use of TRI and general right-to-know concepts. TRI is a
federal program that is, appropriately, not delegated to states. In addition, states
are not provided federal funds in implementing right-to-know programs (Grant,
1997~. We are in an era of increasing devolution of responsibility for manage-
ment of environmental regulatory programs from the federal to the state level.
States need to be educated in the value of right to know and TRI, specifically.
Incentives, including financial incentives, should be provided to states that reflect
right-to-know concepts in implementation of federally delegable programs.
Training and guidance should be provided to states in how to effectively use the
information resources that are currently available in strategic planning and day-
to-day management of regulatory programs.
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HARNESSING THE "POWER OF INFORMATION"
2. Expand the concept of right to know beyond TRI. Clearly, the "power of
information" has been evidenced in the TRI experience. The EPA, Congress,
and the states should consider that experience when developing new initiatives
by ensuring that information disclosure and public accountability components
are included. This is particularly relevant in this time of regulatory reinvention
at the state and federal levels. It is one thing for the EPA and the states to "talk
the environmental information talk," but certainly another to walk the walk.
New voluntary initiatives that are being rolled out need to contain robust public
accountability right to know components to ensure that the regulatory incen-
tives often provided by these programs are balanced by sound public tracking of
industrial performance and program results.
3. Improve the data that are already collected. Although there is a wide
array of activities at the state and national levels to improve information man-
agement, there is little being done to actually improve the quality of the data and
answer the question: "What information do we really need?" Rather than con-
tinuing to propagate an environmental information infrastructure through invest-
ment of millions of dollars in systems to manage data with inherent limitations,
we should be reconsidering not only how data are reported, but what data are
reported (Helms, 1999~. Our goal should be not just to ensure that reported data
are efficiently stored and made retrievable, but we also should be enhancing data
quality to ensure that data are accurate and can actually help us track compliance
and overall environmental performance. A new reporting structure is needed
that can have TRI and the right-to-know (RTK) concept as its basis and measure-
ment of overall environmental performance and multimedia pollution prevention
(Geiger, 1998~. Such a structure can be created to fill in the gaps while, at the
same time, eliminating redundancies and unnecessary data.
4. Provide context for data. Although efforts such as the Environmental
Defense scorecard and RTK net are tremendous steps forward in providing the
public with a context for the mass of information available, they both still face
inherent limitations. TRI has been criticized for being misleading. Scorecard
has been criticized for being unscientific. Nevertheless, these limitations have to
be accepted in the light of no better alternative being available. A recommitment
needs to be made to have policymakers, the environmental community, and in-
dustry come together to reexamine how to best provide the public with a full
understanding of the nature of information to which the public has a right to
know. Without a vision for how the public can interpret environmental informa-
tion, systems cannot be put into place to improve the accessibility and intercon-
nectiveness of TRI and other relevant data.
Within a decade, TRI has moved the concept of right to know from a vague
advocacy term to a fundamental policy tool. The success of TRI offers impor-
tant insights into how information disclosure, in general, can be enhanced to
make right to know an even more effective tool in current efforts to reinvent
environmental regulation. However, a clear recommitment from the EPA and
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JEANNE HERB, SUSAN HELMS, AND MICHAEL J. JENSEN
261
Congress to the concept of right to know, a plan for improving the content of
environmental information as well as its collection, storage, and retneval, and a
vision for the role of the public and public accountability in environmental poli-
cy are needed to ensure that we improve on the success of TRI and maximize the
concept of right to know in environmental policymaking.
NOTE
1 For a survey of literature on this issue, see Reed (1998).
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Representative terms from entire chapter:
environmental performance
