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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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256 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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258 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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260 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). REFERENCES Aucott, M., D. Wachpress, and J. Herb 1996 Industrial Pollution Prevention Trends in New Jersey. Trenton, NJ: Department of Environmental Protection. Dernbach, J.C. 1997 The unfocused regulation of tonics and hazardous pollutants. Harvard Environmental Law Review 21:1-82. Fehr, S. 1999 Worries about public disclosure, threat of terrorism. The Washington Post, October 10. Fung, A., and D. O'Rourke 2000 Reinventing environmental regulation from the grassroots up: Explaining and expanding the success of the Toxics Release Inventory. Environmental Management 25(2):115-127. Geiser, K. 1998 Can the pollution prevention revolution be restarted? Pollution Prevention Review 8(Summer):71 -80. Graham, M. 2000 Regulation by shaming. Atlantic Monthly 285(4):36-40. Grant, D.S. 1997 Allowing citizen participating in environmental regulation: An empirical analysis of the effects of right-to-sue and right-to-know provisions on industry's toxic emissions. Social Science Quarterly 78(4):859-873. Hamilton, J.T. 1995 Pollution as news: Media and stock market reactions to the tonics release inventory data. Journal of Environmental Economics and Management 28:98-113. Hearne, S.A. 1996 Tracking tonics: Chemical use and the right to know. Environment 38:4-33. Helms, S. 1997 Chemical Use Information Disclosure: Seeking Common Ground Among Business and Environmental Stakeholders. Boston: Tellus Institute. 1999 Report card. Environmental Forum 16(6) :21 -29. Kerr, G. 2000 Materials Accounting Project, Materials Accounting and P2: A Good Team? Unpub- lished paper prepared for the Anderson & April, Inc., National Pollution Prevention roundtable, August 15. Khanna, M., W. Rose, H. Quimio, and D. Bojilova 1998 Toxics release information: A policy tool of environmental protection. Journal of Envi- ronmental Economics and Management 36:243-266.

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262 HARNESSING THE "POWER OF INFORMATION" Konar, S., and M.A. Cohen 1997 Information as regulation: The effect of community right to know laws on toxic emis- sions. Journal of Environmental Economics and Management 32:109-124. Lynn, F.M., and J.D. Kartez 1997 Environmental democracy in action: The Toxics Release Inventory. Environmental Management 18:511-521. Nathan, T.E., Jr., and C.G. Miller 1998 Are Toxic Release Inventory reductions real? Policy Analysis 32:368A-374A. Natural Resources Defense Council 1999 Preventing Industrial Pollution at Its Source: The Final Report of the Michigan Source Reduction Initiative. Dillon, CO: Meridian Institute. Outen, R.B 1999 Designing Information Rules to Encourage Better Environmental Performance. Arling- ton, VA: Jellinkk, Schwartz & Connolly, Inc. Reed, D.J. 1998 Green shareholder value: Hype or hit? In Sustainable Enterprise Perspectives. Wash- ington, DC: World Resources Institute. Santos, S.L., V.T. Covello, and D.B. McCallum Tetreault, S. 2000 Industry response to SARA Title III: Pollution prevention, risk reduction, and risk communication. Risk Analysis 16(1) :57-65. 2000 Risk reports won't be on Net. Las Vegas Review Journal (September 4). [Online]. Available: http://www.lVrj.com/lVrj_home/2000/Sep-04-Mon-2000/news/14203814.html [Accessed: March 21, 2002]. U.S. Environmental Protection Agency 1997 EPA Strategic Plan. EPA/190-R-97-002, September. 1999 Aiming for Excellence. Actions to Encourage Stewardship and Accelerate Environmen- tal Progress. EPA/100-R-99-006, July. U.S. General Accounting Office 1991 Toxic Chemicals: EPA's Toxics Release Inventory Is Useful but Can Be Improved. GAO/RCED-91-121. Washington, DC: U.S. General Accounting Office. Wise, M., and L. Kenworthy 1993 Preventing Industrial Toxic Hazards: A Guide for Communities. New York: INFORM. Wolf, S.M. 1996 Fear and loathing about the public right to know: The surprising success of the emer- gency planning and community right to know act. Journal of Land Use and Environ- mental Law 11 (2):217-325. Working Group on Community Right to Know 1991 Working Notes on Community Right to Know. September-October. Washington, DC.