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Community Right-to-Know

In 1986, the U.S. Congress passed the Emergency Planning and Community Right-to-Know Act. Though it was debated and passed as a stand-alone law, it ended up packaged as part of another 1986 law, the Superfund Amendments and Reauthorization Act. So it is known either as EPCRA or as SARA Title III.

The new law was billed as a response to two emergencies, the catastrophic 1984 chemical release at a Union Carbide plant in Bhopal, India, and a distressingly similar but not catastrophic 1985 release at Carbide’s facility in Institute, WV. As befits its focus on chemical emergencies, EPCRA set up a network of State Emergency Response Commissions (SERCs) and Local Emergency Planning Committees (LEPCs), and it obligated every individual facility deemed capable of launching a chemical emergency to develop its own emergency response plan.

But the best-known part of EPCRA had very little to do with emergency planning. Section 313 required the U.S. Environmental Protection Agency (EPA) to establish a Toxics Release Inventory (TRI), a nationwide list of routine chemical releases to air, land, and water from every covered factory, power plant, and so forth. Facilities have to file their TRI reports annually. A couple of years later EPA releases the data to the public – not just the totals, but the raw numbers for every facility in the country. Interested citizens can get chapter-and-verse on releases from any facility or geographical area of any chemical that’s covered.

Section 313 is the “Community Right-to-Know ” part of the Emergency Planning and Community Right-to-Know Act.

Importantly, Section 313 does nothing – absolutely nothing – to regulate chemical emissions. It’s not about controlling what gets emitted; it is exclusively about communicating what gets emitted.

Nonetheless, its effects have been little short of revolutionary.

And because those effects are publicity-driven and market-driven, they are immune to the ebb and flow of regulatory fervor in Washington. Even during the environmentally lax presidency of George W. Bush, the annual TRI obligation has continued to exert strong pressure on companies to reduce their reportable emissions.

In the two decades since EPCRA became law, American environmental activists have gotten used to the annual flood of TRI data. They tend to focus more on the (genuine) flaws of Section 313 than on its extraordinary mandate of transparency. But it has arguably been one of the most effective environmental laws ever.

There’s a lesson in that for other areas of environmental regulation: When companies are doing things the public disapproves of, it may not be necessary to make them stop; it may be sufficient to make them tell, and let the public make them stop. Of course addressing a problem like global warming requires a lot more than just expanding TRI to cover greenhouse gases. But that would surely be a useful, easy, early step.

Corporate Obligation to Know

TRI forces facility managements to know what they’re emitting. It’s not just a Community Right-to-Know law. It’s a Corporate Obligation-to-Know law.

It may surprise some readers to learn that most facility managements have traditionally had very little idea how much of what they were emitting. This is true not just of mom-and-pop operations, but even of huge complexes owned by multinational corporations.

In some cases, clearly, they didn’t know because they didn’t want to know – often because their attorneys told them they’d be better off not knowing. The way toxics liability law has evolved in the U.S., a company that knowingly emits potentially dangerous chemicals is far more vulnerable to tort litigation than a company that unknowingly emits the same chemicals. “We had no idea” is a better defense than “we knew about it but didn’t think it was worth fixing.”

Prior to TRI, companies were usually under no obligation to characterize their emissions. But if they did so voluntarily, they might have an obligation to inform their stakeholders. Then they would face a classic Catch-22: Either tell your stakeholders and invite litigation, or keep the information secret and reap the whirlwind if it gets out anyhow. Far better not to know – better for the company, though obviously not for its neighbors or its employees.

It was arguably malfeasant for a company to acquire this dangerously volatile information until EPCRA Section 313 made it obligatory to do so.

(It’s worth noting that other areas of tort law have evolved quite differently – medical malpractice law, for example. A doctor is in better legal shape if s/he considered a possible diagnosis but erroneously concluded that it didn’t apply than if s/he never even considered it. But a factory management is in better legal shape if it has never stopped to wonder whether there might be deadly dimethylmeatloaf coming out the stacks. This is still the way toxics tort law works in the U.S. – but since 1986, Section 313 makes the company stop to wonder what it’s emitting whether it wants to or not, thus eliminating the defense of ignorance.)

Even without the perverse effects of litigation defense, facility managements might not have known much about their emissions before EPCRA Section 313. Consider for example a wire manufacturer that operated a copper smelter in Georgia for decades without wondering whether the smelter’s emissions might include dioxins. Only when dioxins were added to the TRI list did the company discover not just that it had reportable dioxin emissions, but that its copper smelter was in fact the largest dioxin point-source in the state (of facilities covered by TRI), and one of the largest in the country.

Once the company knew about its dioxin emissions, it obviously had to do something about them. After costing out various emissions reduction technologies, it quickly decided to close the smelter.

Pressure, Competition, Litigation, and Husbandry

Why did the wire manufacturer “obviously” have to do something about its dioxin emissions, even though they violated no federal or state law? More generally, why has the TRI requirement led to significant emissions reductions, even though it doesn’t mandate any reductions at all? For at least five reasons:

• External pressure. TRI numbers are published. Local activists look at them when deciding what to campaign about. Local journalists look at them when deciding what to report about. Local residents look at them when deciding what to worry about. Workers look at them when deciding how safe their workplace is, and investors look at them when deciding which stocks are likely to suffer from environmental controversy. All this attention readily converts into pressure on individual facilities. “Why did you emit so much dimethylmeatloaf last year?” “Why didn’t your emissions go down as much as you promised they would?” “What are you doing to get the numbers lower in the future?” Questions like these come up routinely at many facilities.
• Internal pressure. Even when these sorts of questions haven’t come up yet, companies know they might come up at any time. The result is significant internal pressure from corporate management, seeking to achieve lower overall TRI numbers. Vague corporate goals like “sustainability” and “social license to operate“ need credible, trackable metrics. Every U.S. company that publishes an annual environmental report or corporate social responsibility report includes a section on TRI emissions. And every company wants its TRI trend line to point downward.
• Competition. A lot of the pressure is competitive. It takes a real expert to know how many pounds of dimethylmeatloaf add up to a serious problem. The answer depends on the chemical – some TRI chemicals are measured in tons, others in fractions of an ounce. And the answer depends on where the emissions are going; the same amount shipped to a landfill may be a lot less harmful than going out the stacks. What everyone can relate to is the comparative information. Are you the biggest emitter in the area? Are you one of the top ten in the country? Companies that struggle successfully to get lower on the list thereby expose other companies to unwanted scrutiny in their stead, and thus motivate those other companies to get lower too.
• Litigation. Like activists, journalists, neighbors, workers, and shareholders, plaintiff attorneys also study the TRI list, looking for good class action prospects. Getting lower on the list reduces the probability of becoming a litigation target. And for companies that are already litigation targets, getting lower on the list gives them a more positive story to tell to prospective plaintiffs, and (if things go badly for the company) to juries.
• Husbandry. TRI emissions are wasted chemicals. Once TRI was implemented, a lot of companies were shocked to learn how many tons of useful chemicals they were wasting. Especially in the early years, facilities often found that their TRI emissions reductions more than paid for themselves when the recovered chemicals were reused as raw materials for their own manufacturing or converted into raw materials for some other facility.

And so the TRI numbers have gone down – down pretty impressively. Consider the grossest of all measures: total emissions of all chemicals from all facilities in all industries (for comparability, just the chemicals and industries that have been covered since the outset). In 1988, the total was 3.01 million pounds. In 2006 (the latest year available as this is written in mid-2008), the total was 1.24 million pounds, 59% lower. (Meanwhile, the U.S. population increased by 22%.) Total TRI emissions went down every year except 1997 and 2004. Progress in the first six years of the Bush administration, from 2000 to 2006: 1.60 million pounds to 1.24 million pounds, a 22% reduction.

If you want to do your own trend analysis, access the EPA data at www.epa.gov/triexplorer/trends.htm. You can specify the geographical location, the industry, and the chemical or chemicals, and look at the results for every year from 1988 to 2006.

Three More Benefits

Section 313 of EPCRA has had three other highly desirable impacts that deserve to be mentioned.

Right-to-Know Risk Communication

Section 313 obligated every covered facility to talk with its neighbors and other stakeholders about its emissions. Not technically – all that was technically required was to tell EPA about its emissions. But companies knew that EPA would make their TRI data public. Smart companies quickly realized that they would be wise to do so themselves, and do it first.

Even in the days before the Web, when making information “public” meant something a lot less convenient than it means today, Section 313 launched thousands of environmental dialogues between industrial facilities and their neighbors. The need to communicate became even more pressing after the Environmental Defense Fund started putting all the TRI data online in 1998. EDF’s www.scorecard.org became the dominant website for localized industrial emissions information. Then EPA did the same thing. Now EPA’s surprisingly user-friendly www.epa.gov/triexplorer is the go-to website for TRI information. (In 2005 EDF passed ownership of Scorecard to Green Media Toolshed, a smaller and less well-funded group, which hasn’t kept it updated. That’s a shame, because Scorecard tries to assess the comparative risk of various chemicals, whereas TRI itself is only about pounds.)

Because it forced local industrial facilities to talk to their neighbors, Section 313 was a huge shot-in-the-arm for the then brand-new field of risk communication. The first national conference with “risk communication” in its title was entitled simply “National Conference on Risk Communication.” It was sponsored jointly by the Conservation Foundation, the National Science Foundation, and EPA, and it took place in 1986, the year EPCRA was passed.

In the decade that followed, how to explain the TRI numbers was a risk communication staple. Many of today’s leading riskcomm practitioners and consultants got their start helping companies talk about their TRI emissions.

And not just about the pounds. TRI risk communication has invariably focused on why particular numbers went up or down; on how much risk is associated with particular emissions; on how well the company has fulfilled its previous promises and what it is prepared to promise for the future; etc. And when companies are foolish enough to wait for EPA to release the data and an activist or a journalist to find it, then TRI risk communication focuses largely on why the company kept the information “secret.”

When companies talk to their stakeholders about their TRI emissions, they typically have at least four goals:

• To put the numbers in a context the company considers appropriate before some critic puts them in a context the company likes a lot less. Risk communication teaches that this shouldn’t mean telling people there’s nothing to worry about; it should mean explaining which emissions the company considers most worrisome and which it thinks are less so (even if the poundage is substantial).
• To focus attention on the company’s TRI improvements. If a company is savvy about risk communication, it outsources much of the credit for those improvements to the stakeholders who most actively applied pressure to achieve them. The improvements are more credible when the company shares the credit.
• To explain the company’s TRI deficiencies – emissions that went up or failed to go down enough. A company that understands risk communication will make these explanations apologetic rather than defensive, and accompany them with actionable improvement goals. Smart companies also establish accountability mechanisms so people can watch as the company struggles to achieve the goals.
• To acknowledge and validate people’s concern about the emissions. This is the goal that departs most from the TRI numbers themselves. How much anger and fear people feel about a company’s emissions is more a function of the way the relationship is handled than of the actual data. Good risk communication doesn’t just mean explaining the data; it means validating people’s concerns, apologizing for the company’s past transgressions, sharing control and credit, and the like.

Environmentalists sometimes worry that a company’s “good risk communication” might replace emissions reduction. And companies sometimes hope that will be the case. But trying to improve relationships with stakeholders without improving actual performance as well is profoundly unlikely to work. People quickly get it that the so-called improvement is a strategic distraction – mere public relations – and that generates more anger and fear.

But improving performance without improving relationships with stakeholders doesn’t work either. People stay upset and therefore tend not to notice that the numbers went down. You have to do both.

This is one of the core lessons of risk communication. The chief arena in which it was learned was EPCRA Section 313 right-to-know.

TRI Drawbacks

The most serious drawback of Section 313 is also the most obvious: It doesn’t address the risk associated with various pollutants, only their quantity. “Pounds of pollution” is an extremely gross measure of environmental or health impacts. What people really want the right to know is how endangered they are, not how much stuff has been emitted to the air, water, or ground. Even a technical ignoramus realizes that the risk is going to depend on what’s being emitted and where it’s being emitted, not just on how much of it is being emitted.

EDF’s Scorecard offered a fairly rudimentary measure of risk. EPA now says it is trying to do something more sophisticated. It is merging TRI data, data from its National-Scale Air Toxics Assessment (NATA), and geographic information systems data (on Google Earth) into something called TRI-NATA Explorer, which is eventually supposed to enable people to map their risk, at least their inhalation risk.

Meanwhile, the annual TRI reports provoke dialogue about risk, but they inform that dialogue only with information about pounds.

Other drawbacks that are frequently mentioned:

• Right-to-know translates into action only if politically active stakeholders mobilize around the information (or if companies anticipate that they are likely to do so). Not surprisingly, then, TRI’s impact on emissions has been mostly in politically active communities.
• Some of the incentives in TRI are wrong. A company can reduce its numbers by switching from a chemical that’s covered to one that isn’t, or from a chemical that’s emitted by the ton to one that’s emitted in much smaller quantities – changes that don’t necessarily reduce risk and may actually increase it. Similarly, a company that outsources a high-emitting process or hires an offsite waste processor can reduce its numbers without reducing total emissions.
• TRI data are self-reports, with no meaningful way to police their accuracy. In many cases they’re not actually data at all; “reasonable estimates” are permitted instead where actual data would be burdensome to collect.
• TRI covers only the 600+ chemicals it covers – which is far from all the chemicals emitted. Recurrent battles focus on what chemicals should be added to (or deleted from) the list.
• Since 2005, EPA has been trying to weaken (one critic says “dismantle”) the TRI program with changes like switching from annual to biannual reporting and increasing as much as tenfold the thresholds for having to report about particular chemicals. These efforts have been partially successful and are continuing as of mid-2008.
• There is also a movement afoot to make federal right-to-know law preempt more draconian state laws, such as California’s Proposition 65.

These drawbacks notwithstanding, TRI has proved its worth. More than any other U.S. law, it has established that transparency can lead to environmental improvement, and thus that requiring transparency – right-to-know – is an efficient tool of environmental regulation.

Bibliography

Toxics Release Inventory (TRI) Program, U.S. Environmental Protection Agency, online at www.epa.gov/tri/. See especially the TRI Explorer at www.epa.gov/triexplorer/. (Both accessed August 15, 2008.) An eminently usable government website with all the TRI data.

RTKNet: The Right-to-Know Network, OMB Watch, online at www.rtknet.org/. (Accessed August 15, 2008.) A very handy repository of right-to-know data sets, including but not limited to the TRI data. Also offers links to organizations focusing on right-to-know and other resources of value.

Ann Florini and Joseph E. Stiglitz, The Right to Know: Transparency for an Open World (New York: Columbia University Press, 2007). A much broader assessment of right-to-know, focusing on worldwide barriers to disclosure of all sorts of government and corporate secrets.

Copyright © 2008 by SAGE Publications, Inc.

Contact information page:    Peter M. Sandman