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Toxic Disclosure Should be Expanded, Not Scaled Back

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In the wake of a series of chemical spills in the United States and a disastrous accident at a chemical plant in Bhopal, India that claimed thousands of lives, Congress 20 years ago passed the Emergency Planning and Community Right to Know Act. Under the Act, industrial facilities every year must report their releases of toxic chemicals into the environment, which the government then makes publicly available through its Toxics Release Inventory program.

The TRI program allows for public scrutiny of specific companies’ polluting practices, which in turn creates a powerful disincentive to pollute. Despite dramatic reductions in toxic releases, however, industry-backed groups have sought to scale back this public disclosure—and found a willing ally in the Bush administration.

The Environmental Protection Agency announced today that it will allow companies to use shorter, less informative reporting forms for small quantities of persistent bio-accumulative toxins that are dangerous even at very low levels, as well as releases of other TRI chemicals up to 2,000 pounds.

The EPA also proposed last year to scrap annual reporting and allow polluting facilities to report releases only every other year. But this idea was recently abandoned under pressure from Sen. Frank Lautenberg (D-NJ) and others.

Rather than scale back public disclosure, we should build on the success of TRI. When TRI was implemented in 1988, it represented a paradigm shift in environmental regulation by recognizing a fundamental public right to know about chemical dangers.

The approach appeals to both conservative economists, who believe that providing more information helps consumers and investors make better informed and more efficient decisions, and environmental advocates, who believe that information disclosure can promote citizen empowerment and create incentives for firms to reduce harmful activities. And it works extremely well. From the first reporting year in 1988 to 2004, releases of toxic chemicals subject to TRI dropped by a remarkable 57 percent, or 1.71 billion pounds (this figure covers those chemicals that have been on the list for this entire period).

These reductions are spurred by the simple but powerful fact that companies desire to avoid negative publicity, including publicity regarding their environmental record. Companies report that TRI forced them to examine for the first time the extent of the waste they were producing. The Chemical Manufacturers Association in 1995 labeled TRI “a very successful venture,” noting that its members “have gotten behind it and witnessed a 50 percent reduction in pollution.”

TRI also helps promote democratic decision making, enabling citizens to participate on a more equal footing with regulated entities in permitting, land use, and other political decisions. From 1998 to 2004, over 200 reports were prepared by citizen groups using TRI data.

And TRI is highly cost effective. It imposes minimal costs on industry, since companies simply are required to report their releases. If they opt to reduce releases, it’s their decision how to do so. The EPA, meanwhile, spends less than 0.1 percent of its annual budget administering the program.

Indeed, the EPA regularly touts TRI as one of our nation’s most effective environmental laws. And it is now emulated throughout the world. There are similar registries in Canada, Mexico, Japan, Australia, the European Union, and other countries.

This record of success should encourage an expansion of TRI. The program currently covers 654 toxic chemicals, which represent less than one percent of the more than 75,000 chemicals manufactured in the United States.

Companies should be required to publicly report releases of other harmful chemicals, including greenhouse gas emissions (required by the European Union and proposed in California). In addition, facilities currently exempt from TRI, such as sewage treatment plants, airports, large agricultural operations, and auto service stations, should be brought into the program.

TRI can also be strengthened to create additional incentives for pollution reduction. While TRI has prompted reductions in toxic releases, the quantity of toxic chemicals generated and used by facilities has declined only slightly.

Going forward, companies should be required to report information about their chemical use and the amount of chemicals that remain in products. This is an approach followed with success by Massachusetts and New Jersey, and advocated by the EPA itself under the Clinton administration.

From policing programs to school performance to medical error rates in hospitals, the public today is demanding increased accountability from public and private institutions. We should require no less from companies who daily expose us to thousands of toxic chemicals. A strong TRI program will help us realize this goal.

Clifford Rechtschaffen is a member scholar of the Center for Progressive Reform and a professor of law at Golden Gate University School of Law in San Francisco.

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