Commons Ignorance: The Failure of Environmental Law to Produce Needed Information on Health and the Environment

By Wagner, Wendy E. | Duke Law Journal, April 2004 | Go to article overview

Commons Ignorance: The Failure of Environmental Law to Produce Needed Information on Health and the Environment


Wagner, Wendy E., Duke Law Journal


ABSTRACT

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. … 

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