[PEN-L:11043] RIght to Know Nothing Legislation (fwd)

[D Shniad <shniad@xxxxxx>]

> =======================Electronic Edition========================
> .                                                               .
> .           RACHEL'S ENVIRONMENT & HEALTH WEEKLY #552           .
> .                      ---June 26, 1997---                      .
> .                          HEADLINES:                           .
> .                     RIGHT TO KNOW NOTHING                     .
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>
> RIGHT TO KNOW NOTHING
>
> American corporations are successfully pursuing a new strategy to
> evade environmental laws and regulations.  As the NEW YORK TIMES
> describes the new strategy, "Urged on by a coalition of big
> industries, one state after another is adopting legislation to
> protect companies from disclosure or punishment when they
> discover environmental offenses at their own plants."[1]  In
> essence, state laws are giving corporations immunity from
> punishment if they self-report violations of environmental laws.
> Furthermore, any documents related to the self-reporting become
> officially secret, cannot be divulged to the public, and cannot
> be used as evidence in any legal proceedings.  "This is a
> disaster for environmental enforcement," says David Ronald, chief
> of the environmental crimes division in the Arizona State
> Attorney General's Office.  "It has been creeping through the
> states without anybody paying much attention."[1]
>
> The strategy took root in 1993 when the Oregon state legislature
> passed the first-ever "audit privilege" law, as they are called.
> Such laws --which have now been passed in at least 21 states and
> are pending in 13 or 14 others --typically contain the following
> provisions:
>
> ** Corporations that report violations discovered during a
> self-audit are immune from prosecution for their violations.
> They cannot be fined or otherwise punished if they disclose
> violations promptly to government authorities and take
> "reasonable" steps to achieve compliance.
>
> ** Individuals who participate in conducting an environmental
> audit cannot be called to testify in any judicial proceeding or
> administrative hearing.
>
> ** Perhaps most importantly, if a corporation conducts an
> environmental self-audit of its operations, the information in
> the self-audit cannot be disclosed to the public and cannot be
> used as evidence in any legal proceedings, including lawsuits
> and/or regulatory actions.  Any information related to a
> self-audit becomes "privileged."  This exemption typically covers
> any documents, notes, communications, data, or opinions related
> in any way to the audit.  The corporation itself decides what is
> related to its self-audit and what is not.  In essence, audit
> privilege laws allow a corporation to stamp any document
> "audit-related" and thus exempt it from public disclosure,
> discovery, or use as evidence in any legal proceeding.  For
> companies facing Superfund lawsuits, or toxic tort actions, this
> exemption can translate into billions of dollars in avoided costs.
>
> ** Some states, such as Texas, have included additional
> provisions that make it a crime for employees or government
> officials to divulge anything related to environmental
> self-audits.  In Texas, if a person divulges such information and
> it leads to penalties against a polluter, the individual who
> divulged the information must pay the polluters' fines,
> penalties, and other costs.  This is a blatant
> "anti-whistle-blower" provision, clearly intended to silence
> individuals who might otherwise come forward with information
> about violations of law.
>
> Audit privilege laws --which are sometimes called Corporate Dirty
> Secrets Laws, or Right to Know Nothing Laws --apply not only to
> private corporations but also to governments as well.  Thus
> citizens of a municipality can lose their right to know about
> pollution from their own local landfill when their state
> legislature passes an "audit privilege" law.
>
> The 21 states that have, so far, passed "audit privilege" laws
> include: Alaska, Arkansas, Colorado, Idaho, Illinois, Indiana,
> Ohio, Kansas, Kentucky, Michigan, Minnesota, Mississippi,
> Montana, New Hampshire, Oregon, South Carolina, South Dakota,
> Texas, Utah, Virginia, and Wyoming.
>
> The Clinton administration supports environmental self-auditing.
> They say that companies know how to audit their own facilities
> better than the government does, and can do a better job of it.
> However, initially the administration took the position that
> companies should receive no immunity from fines or other
> punishment if their self-audits revealed violations.  Further,
> the administration initially took the position that self-audit
> information should not be privileged or secret, saying workers
> and communities had a right to know what local corporations were
> doing to the environment.
>
> To give these views clout, Environmental Protection Agency (EPA)
> administrator Carol Browner threatened to take enforcement
> authority away from any state that passed a typical audit
> privilege law.  (Most U.S. federal environmental laws allow EPA
> to delegate enforcement authority to the states with the
> provision that federal standards must be met.)
>
> Specifically, EPA put Texas on notice that their audit privilege
> law was unacceptable because it would compromise the ability of
> all governments (federal, state, and local) to enforce
> environmental laws. However, in March, 1997, Ms. Browner reversed
> her position and said that the Texas law, with minor changes,
> would be acceptable to EPA. The Texas law gives both immunity
> from prosecution AND privilege to the information produced during
> a self-audit, and, as we have seen, it contains a blatant
> anti-whistle-blower provision.
>
> Most observers believe the administration cut a deal with Texas
> to appease anti-environment forces in the 105th Congress.  As
> expected, EPA's stance in Texas has been widely regarded as the
> administration's acceptance of all states' audit privilege laws.
> More state laws are expected to pass, now that the threat of EPA
> sanctions has been withdrawn.
>
> However, the anti-environment forces in Congress have refused to
> be appeased.  This month, they proposed national "audit
> privilege" legislation.  Senate Majority Leader Trent Lott
> (R-Miss.) personally endorsed S. 866, "The Environmental
> Protection Partnership Act," which is a standard audit privilege
> bill.[2]  It gives immunity to violators who self-report
> violations; and it gives a privilege of secrecy to all
> information related to self-audits.  Notably, S. 866 specifically
> prohibits EPA from revoking enforcement authority of states who
> pass audit privilege laws.  A companion bill has been introduced
> in the House of Representatives --H.R. 1884, the "Voluntary
> Environmental Self-Evaluation Act."
>
> For five years, corporations have been promoting environmental
> audit bills around the country, arguing that such laws would
> improve environmental protection and public health.  Companies
> promoting audit privilege laws include AT&T, Caterpillar, Coors
> Brewing, DuPont, Eli Lilly, 3M, Pfizer, Procter & Gamble,
> Weyerhauser, and Waste Management, Inc. (WMI).
>
> However, protecting public health may not be the first priority
> for all these corporations.  For example, as soon as Ohio passed
> its "audit privilege" law in December, 1996, WMI demanded that a
> citizens' group return documents --some of them dating back to
> 1988 --which the citizens had obtained during litigation aimed at
> forcing the cleanup of the ELDA landfill near Cincinnati.  WMI
> says the documents are now "privileged" under Ohio law and cannot
> be used in a federal court case brought by local citizens.[3]
> Some of the documents in question are stamped "audit" and others
> were simply claimed to be "audits" after the fact. Thus WMI has
> revealed unmistakably what "audit privilege" laws are really
> about.
>
> Some 80 citizen groups have formed a vigorous coalition to fight
> audit privilege laws.  Contact The Network Against Corporate
> Secrecy led by Sanford Lewis in Boston: (617) 254-1030; or
> sanlewis@xxxxxxxxxxxx Their informative Web site can be found at
> http://www.envirolink.org/orgs/gnp/nacs_toc.htm .
>
> As we step back and try to get this "right to know nothing" trend
> into perspective, it appears to us that this is just another
> aspect of the rapidly-growing power of corporations in America
> and worldwide.
>
> Big corporations approved the passage of all the major U.S.
> environmental laws now on the books.  (If they had seriously
> opposed any of them, they would not be on the books.)  These laws
> impose onerous requirements for gathering and reporting data.
> Large corporations complain about these features of our national
> laws, but in truth these reporting requirements provide a
> competitive advantage for large corporations vs. small.  It is
> small businesses that get hurt by all the paperwork that our
> environmental laws entail.  A big company just assigns a team to
> the task and gets it done.  So big corporations created our
> complicated laws, partly for the competitive advantage that it
> gives them over their smaller, more nimble competitors.
>
> Occasionally, however, our environmental laws cost some big
> polluter a major fine of $50 or $100 million dollars.  And toxic
> tort lawsuits can cost them hundreds of millions from time to
> time.  To reduce the likelihood of bearing such costs, big
> polluters now want "audit privilege" laws to protect them from
> public scrutiny and to give them immunity against major
> penalties.  This retains the burdensome paperwork in the laws,
> which gives them a competitive advantage, while reducing the
> risks of major costs. The anti-environment Congress is doing its
> part to carry out this corporate strategy.  Passing a federal
> "audit privilege" law would clearly benefit the big polluters.
> Congress has already taken other steps that fit into this
> strategy: the federal EPA is now so weak that it cannot possibly
> enforce all the laws on the books.  Speaking of EPA's Carol
> Browner recently, the NEW YORK TIMES said in an editorial, "As a
> practical matter, the task of issuing individual permits for
> thousands of companies nationwide is beyond her staff's
> capabilities."[4]  This weakening has not happened by accident.
> Congress has systematically reduced the capacity of the federal
> government to enforce our laws.  In response, Ms. Browner has
> willingly formed voluntary "partnerships" with the states, giving
> them greater enforcement authority.
>
> State enforcement is weaker than federal enforcement because
> states compete with each other for jobs.  Any state that becomes
> known as a "pollution haven" will be looked upon favorably by
> polluters. Conscientious states find themselves at a disadvantage
> under these circumstances.
>
> Sure enough, reports the NEW YORK TIMES, "Pennsylvania and some
> other big industrial states are reporting only a handful of major
> pollution violations, suggesting that inspectors in those states
> may be turning a blind eye to pollution problems.... Federal
> inspectors said the state [Pennsylvania] should have found at
> least 10 times as many violations as were reported in 1995."[5]
> The TIMES later said about 25% of all the states are failing to
> enforce the nation's environmental laws.[4]
>
> We must note once again that the fundamental problem is the
> unfettered power of the modern corporation.  The Clinton
> administration bears as much responsibility as any in this
> department.  As the TIMES has said, "Ever since Bill Clinton came
> to office, he has done more for the Fortune 500 than virtually
> any other President in this century...."[6]
>
> Corporations have limited capacity for self-restraint; they want
> it all and they want it now and they don't want anyone telling
> them what they can and cannot do.  Until we recognize this --the
> nature of the corporate form --as the key problem of our time,
> the environment and human health will continue to deteriorate.
>                                                 --Peter Montague
>                 (National Writers Union, UAW Local 1981/AFL-CIO)
>
> ===============
> [1] John H. Cushman, Jr., "Many States Give Polluting Firms New
> Protections," NEW YORK TIMES April 7, 1996, pg. 1.  See also,
> John H. Cushman, Jr., "Colorado and Ohio Accused of Skirting
> Federal Environmental Laws," NEW YORK TIMES January 30, 1997, pg.
> B7.
>
> [2] Trent Lott, "Voluntary Environmental Self-Audit,"
> CONGRESSIONAL RECORD June 11, 1997, pg. S5494.
>
> [3] The attorney representing the citizens is David Altman;
> phone: (513) 721-2180.
>
> [4] "Environmental Defiance [editorial]," NEW YORK TIMES December
> 20, 1996, pg. A38.
>
> [5] John H. Cushman, Jr., "State Neglecting Pollution Rules,
> White House Says," NEW YORK TIMES December 15, 1996, pg. A1.
>
> [6] David E. Sanger, "The Big One: Washington's Political
> Earthquake," NEW YORK TIMES September 24, 1995, Section 4 ("Week
> in Review"), pg. 1.
>
> Descriptor terms:  enforcement; audit privilege laws;
> environmental audits; right to know nothing; corporate dirty
> secrets laws; corporations; Alaska; Arkansas; Colorado; Idaho;
> Illinois; Indiana; Ohio; Kansas; Kentucky; Michigan; Minnesota;
> Mississippi; Montana; New Hampshire; Oregon; South Carolina;
> South Dakota; Texas; Utah; Virginia; and Wyoming; bill clinton;
> congress;
>
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