Know When to Hold 'Em: Minimizing Disclosure of Corporate Environmental Information

By Fiechtl, Rebecca | Environmental Law, Fall 2001 | Go to article overview

Know When to Hold 'Em: Minimizing Disclosure of Corporate Environmental Information


Fiechtl, Rebecca, Environmental Law


I. INTRODUCTION

Complying with the vast amount of environmental laws is a daunting task for a corporation today. A corporation may find it necessary to hire an environmental consulting company to conduct an environmental audit to assess its compliance with environmental laws and determine any appropriate adjustments in procedure. If the audit raises concerns regarding the corporation's compliance, the corporation may request environmental review status reports, prepared at certain intervals, to track the corporation's efforts to correct the concerns raised in the audit. (1) The corporation's officers may think the best course of action is to comply with environmental laws and keep their environmental matters confidential. Nevertheless, the corporation could be compelled to disclose the audit and reports if subsequent litigation arises. (2)

Increases in the degree of sanctions and complexity of environmental laws, and the corresponding increases in prosecutions for violations of environmental laws, put pressure on corporations to comply with applicable laws and regulations. (3) To facilitate compliance, many corporations rely on in-house counsel, officers, and employees as well as outside counsel, experts, and consultants. (4) These actors generate various types of environmental information for the corporation. Some of this information may contain sensitive issues that the corporation would rather not disclose.

This Comment examines the reasons for creating corporate environmental information, the available means for keeping certain types of information confidential, and the measures a corporation may utilize to avoid unnecessary disclosure of sensitive environmental reports. Part II provides a general overview of the reasons various actors generate environmental information on behalf of a corporation. This environmental information includes mandatory and voluntary environmental audits, internal environmental investigations (usually triggered by a government inquiry or initiation of a government investigation), statutory reporting requirements to regulatory agencies, and requests for information from regulatory agencies or lenders. This Part also details some of the corporate purposes for keeping certain environmental details confidential, and the incentives for corporations to voluntarily disclose their environmental analyses. Part III surveys the availability and applicability of state environmental self-audit privilege or immunity laws, and the opposition to these laws by the Environmental Protection Agency (EPA). Additionally, this Part summarizes the best practices to avoid waiver of the state self-audit privilege or immunity laws, while weighing the risk that EPA may preempt the state law and require disclosure of the self-audit. Part IV examines the attorney-client privilege, work product doctrine, and self-critical analysis privilege in the corporate environmental setting. Part IV also discusses the best practices to preserve these protections when the corporation has a variety of in-house and external actors creating sensitive environmental information. Part V concludes that, although a confidentiality guarantee is impossible, the best method to guard against unintentional and unnecessary disclosure of sensitive environmental reports is the careful forethought and planning of a knowledgeable attorney.

II. REASONS FOR ENVIRONMENTAL REPORTS

Significant parts of environmental legislation enacted over the past two decades expanded the scope of civil and criminal environmental liability in an effort to deter environmental violations. (5) Currently, almost every federal environmental statute and most state environmental statutes authorize criminal penalties in addition to civil penalties. (6)

The federal government has also increased its civil and criminal investigations and prosecutions based on these statutes. For example, during fiscal year 2000 (FY 2000), EPA issued a record number of administrative complaints, compliance orders, and field citations, almost double the number from the year before. …

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