Commons Ignorance: The Failure of Environmental Law to Produce Needed Information on Health and the Environment
Wagner, Wendy E., Duke Law Journal
One of the most significant problems facing environmental law is the dearth of scientific information available to assess the impact of industrial activities on public health and the environment. After documenting the significant gaps in existing information, this Article argues that existing laws both exacerbate and perpetuate this problem By failing to require actors to assess the potential harm from their activities, and by penalizing them with additional regulation when they do, existing laws Jail to counteract actors' natural inclination to remain silent about the harms that they might be causing. Both theory and practice confirm that when the stokes are high, actors not only will resist producing potentially incriminating information but will invest in discrediting public research that suggests their activities are harmful. The Article concludes with specific recommendations about how these perverse incentives for ignorance can be reversed.
TABLE OF CONTENTS Introduction I. The Ignorance Equilibrium A. Actors Will Generally Resist Documenting the Adverse Consequences of Their Activities and Products 1. Reasons to Remain Ignorant about Negative Externalities 2. Reasons Not to Produce Information That Becomes a Public Good B. Actors Will Generally Resist Disseminating Information about the Adverse Effects of Their Activities and Products 1. Actors Often Enjoy Superior Information about the Suspected Harms Caused by Their Activities, and They Sometimes Conceal This Information 2. Actors Sometimes Manufacture Uncertainty about the Suspected Harms Caused by Their Activities C. Exceptions to the General Rule II. The Laws Do Not Require the Production of Needed Information A. Information That Actors Are Required to Produce 1. Manufacturers of Certain New, Hazardous Products (E.g., Pesticides and "Suspect" Toxic Substances) and a Smaller Set of Existing Hazardous Products Are Required to Conduct Prescribed Toxicity Tests to Get or Keep Their Products on the Market 2. Polluters Who Discharge through a Pipe into Surface Waters or Emit or Discard into the Outside Air or onto Land More Than a Threshold Amount of Pollution Must Get a Permit and Report Their Waste Disposal Activities 3. When the Accidental Release of a Hazardous Substance Occurs, Actors Must Report This Release If They Believe It to Exceed a Specified, Daily "Reportable Quantity" B. Information That Actors Are Not Required to Produce 1. As Long As Their Activities Do Not Fall into the Discrete Sets of "Covered" Acts Identified Above, Polluters and Manufacturers of Hazardous Products Bear No Legal Responsibility for Producing Any Information about Their Activities and Remain Essentially Invisible to Regulators and the Public 2. Even When There Is Information Indicating That a Particular Activity or Product Is Likely Causing Harm, There Are a Number of Circumstances for Which Actors Are Legally Excused from Reporting or Monitoring Their Harmful Activities 3. In Addition to Being Excused from Monitoring or Reporting Potentially Harmful Activities, Manufacturing and Polluting Firms Are Also Excused from Researching the Adverse Effects of Most of Their Activities on Health and the Environment, Leaving the Public and Victims to do the Scientific Research 4. Actors Are Excused from Contributing to the Development of Methods for Assessing the Harms Caused by Their Activities, Leaving Regulators to Struggle with Developing the Tests III. The Laws Encourage Actors to Perpetuate Ignorance A. Ignorance Is Bliss in Regulation and Enforcement 1. Information Burdens on the EPA as a Precondition to Regulation 2. …