The Pitfalls of the Environmental Right to Know

Alexander Volokh, Harvard University

Abstract

Would you want your family to live near a plant containing acetone, acetaldehyde, methyl butyrate, ethyl caproate, hexyl acetate, methanol, acrolein, and croton aldehyde? Perhaps not. Responding to Americans' fears of exposure to scary-sounding and possibly dangerous chemicals, and prompted by a few high-profile industrial accidents, Congress in 1986 adopted a far-reaching system of chemical-release reporting dubbed the Toxics Release Inventory (TRI). Some states have adopted environmental information programs of their own.

The TRI requires nothing but reporting, but has had a large effect nevertheless. Stock analysts, house hunters, and environmentalists use its data to evaluate companies and neighborhoods. Journalists and policy analysts use TRI data to inform debates on the effectiveness of environmental policy or to argue for more stringent regulation. State agencies use TRI data to track their own environmental progress. Businesses do too—capital markets seem to care about this new source of information, and the TRI seems to have prompted emissions reductions and increased environmental compliance. Small wonder that environmental officials call TRI one of the most successful federal environmental programs.

But what does it all mean? Environmental-information laws are often misunderstood. Because they do not directly regulate production, right-to-know laws are generally considered more benign than traditional command-and-control regulation. Their advocates commonly depict them as “voluntary,” “market-based” programs—and many in the policy community, including those who are often critical of command-and-control regulation, have accepted this characterization. Yet such a description masks several crucial elements of right-to-know programs.

Environmental-information initiatives may not always yield useful information. Calcium supplements contain trace amounts of lead, but prominent lead warnings may blind consumers to the benefits of calcium. Vinyl acetate and butyraldehyde are harmful in some forms, but unduly scaring people about these risks would mean foregoing the benefits of safety glass, which the National Highway Traffic and Safety Administration has identified as the most cost-effective improvement ever introduced in the history of automotive safety.

Most information is not meaningful in itself, but requires interpretation and analysis. Because not all information is relevant to making an informed decision, more information is not always better. It is often claimed that people are smart enough to sort through the information they are given, but this argument can be taken too far, especially when the information is highly technical. Indeed, information-gathering or labeling that is excessive or too detailed can easily confuse, mislead, or be used to manipulate consumers; it may make people misperceive risks, misallocate resources, and frustrate health, safety, and environmental objectives. (The plant with the scary sounding chemicals from the beginning of the Article, by the way, is a strawberry.)

These elements of right-to-know programs may or may not be desirable. But given these elements, right-to-know laws, which mandate the disclosure of information, cannot be called “voluntary” or “market-based.” They are regulatory, and should be judged as such. Part II of this Article summarizes the requirements of TRI. Part III argues that environmental information, as required under current law, is often misleading and provides a distorted picture of the health and environmental effects of chemical use. Current disclosure requirements often do not distinguish between safer and riskier chemicals; they often do not distinguish between chemical use that exposes people or communities and chemical use that is safely managed; they often double-count releases, transfers, or waste; and they do not cover all chemicals or all facilities. These failings are not easy to correct under the current system, and more ambitious and more comprehensive data-reporting requirements will do little to alleviate these problems.