12. States Offer Corporations Immunity from Violating Environmental Laws

Source: RACHEL'S ENVIRONMENT & HEALTH WEEKLY, # 552, Title: "Right to Know Nothing" Date: June 26, 1997, Author: Peter Montague, Ph.D.

Mainstream media coverage: related article in The New York Times, January 30, 1997, page B-7; National Public Radio, Talk of the Nation, October 17, 1997; National Public Radio, All Things Considered, May 8, 1997

SSU Censored Researchers: Robin Stovall and Brian Foust SSU
Staff Evaluator: Ellen Krebs

American corporations are successfully pursuing a new strategy to evade environmental laws and regulations. One state after another has been lobbied into adopting legislation to protect companies from disclosure or punishment when they discover environmental offenses at their own plants. Called the "Right to Know Nothing Laws," they have been promoted nationwide by coalitions of big industries, including AT&T, Caterpillar, Coors Brewing, DuPont, Eli Lilly, 3M, Pfizer, Procter & Gamble, Weyerhauser, and Waste Management.

State laws are giving corporations immunity from punishment if they self-report violations of environmental laws. 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. "Audit privilege" laws, as they are called, have been passed in at least 21 states and are pending in 13 or 14 others. Such laws 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.

* If a corporation conducts an environmental self-audit of its operations, the information in the "self-audit" cannot be disclosed to the public or used as evidence in any legal proceedings, including lawsuits and regulatory actions. Any information related to a self-audit becomes "privileged." The corporation decides what is related to its self-audit and what is not.

The state of Texas has even made it a crime for employees or government officials to divulge anything related to environmental self-audits. Thus citizens of a municipality in Texas can lose their "right to know" about pollution from their own local landfill if the local contractor chooses to conduct a self-audit.

The Clinton Administration has accepted self-auditing by saying companies know how to audit their own facilities better than the government does, and can do a better job of it. Last March, the U.S. Environmental Protection Agency accepted Texas's "Right to Know Nothing Law" with only minor changes, paving the way for state laws to be enacted nationwide.

UPDATE BY AUTHOR PETER MONTAGUE: "This story represents a disturbing trend: Corporations are becoming less accountable to governments and to the public. New laws are being passed in dozens of states, exempting corporate polluters from enforcement penalties if they self-report violations of environmental laws. It is as if murderers were being declared 'innocent' simply because they confess their murders to the police. Furthermore, under most of these new laws, when polluters self-report ... incriminating documents [can be kept] from the public, and from judges and juries.

"The effect of these laws is to weigh the scales of justice heavily in favor of corporate polluters. This, it seems to me, will further erode the public's confidence in government. In addition, it will encourage corporations to pollute more because they will know that penalties will be waived if they simply report their pollution to the proper authorities. As a result of increased pollution, public health will most likely be endangered. As a result of diminished public confi-dence in government, our democracy will most likely be weakened.

"As for developments since my story, the proposed 'federal audit privilege' legislation is still making its way through Congress, and the trend in the states has not been reversed. The mainstream press has mostly ignored this legislation. The New York Times published one story about it (before I did my story). Most state papers have ignored the story, even when 'audit privilege' bills were being debated in their state legislatures.

"Only one organization that I know of has been tracking this legislation across the country: The Network Against Corporate Secrecy, led by Sanford Lewis in Boston; Tel: 617/354-1030; E-mail: san-lewis@igc.apc.org."