The Development of Environmental Protection in Information Age: Using Information as a Regulatory Tool and Its Perspective -- the Overview of US Experience WEN-HSIANG KUNG, SJD CANDIDATE RESEARCH ASSISSTANT & GRADUATE ASSOCIATE VISITING SCHOLAR IN SJTU SCHOOL OF LAW

FRAMEWORK I.INTRODUCTION II.INFORMATION REGULATION (IR) IN DIFFERENT FORMATS III.THE RATIONAL FOR AND AGAINST IR IV.LEGALS MODELS V.CONCLUSION

INTRODUCTION Fundamental goals (political & legislative) of Environmental Law -- enhancing environmental protection, --preventing environmental harms from happening, --improving the industry’s compliance with environmental laws, --encouraging them to have better performance voluntarily, and --helping the public clearly understand the risks. Critical element – Information Information Regulation:

Information Regulation (IR) in Different Formats Information Disclosure Approaches – For Government: FOIA & NEPA ； For Non-government: Traditional Command and Control -- CAA, TSCA, RCRA, CWA: Information as prerequisite for decision-making, but not independent instrument Critique to Traditional Approach -- burdensome, complex, time-consuming, costly, inflexible & barriers to access… Economic Incentive System -- Asymmetric Information -- Market Failure & Other Limits and Debates (ethics, justice, and the suspect for success of CAP) New Governance -- Reflexive Law – self-regulating system Information as an independent tool for environmental protection

THE RATIONAL FOR & AGAINST IR Legal perspective: The Public’s Right-to-Know; Promoting Democratic Decision-Making; Expanding Individual Liberty and Autonomy; Enhancing Transparency and Accountability of the Agency Economic perspective: Correcting Economic Market Failures; Promoting effectiveness and efficiency of the Agency and Industry; Avoiding Hampering Innovation and Unnecessary Duplicative Testing The Rational Against IR: More Information, More Need to Interpretation and Analysis; Overreaction or Non-reaction; Need for Activism; Heuristics

LEGAL MODELS -- Mandatory Information Disclosure Programs TRI -- Toxic Release Inventory (Sec. 313 of the Emergence Planning and Community Right-to- Know Act, EPCRA) – Goals -- ensuring the public have the right to know environmental risks and helping make informed decisions Owner or Operator has to report the “toxic chemical” it releases into the environment; EPA sets the list of chemicals and may add or delete…; EPA establishes national toxic chemical inventory in a computer database;

Critiques to TRI Incentives? Reputation? Complete and reliable ? Monitoring Mechanism for accuracy? Standardized measures for reporting? No risk assessment – no idea about true risks Regulated chemicals and firms are limited… Reduction from information disclosure?

THE FOOD QUALITY PROTECTION ACT Using registration system -- the burden of proof shifted pesticide manufactures; the registrant bear the burden continuously; specific requirements for registration; Risk assessment (detailed statutory asking) Adopting precaution principle; Protection for subpopulations (infants and children); Consumer’s right to know; General policy statement (reasonable certainty of no harm);

CONCLUSION For the agency -- what the agency needs to do includes: identifying a target list of pollutants; monitoring regulated entities for their compliance with relatively simple and straightforward reporting requirements -- the agency can play a more active oversight and analytical role to catalyze informed public discussion and debate over toxic pollution trends, problems, and possibilities for improvement… Suggestion – making sure information complete, correct, and reliable ； realize the fundamental procedural values: transparency, accountability, and participation

For the industry – Performance Monitoring -- through information disclosure environmental performance of the industry will be monitored from the public, the agency, and competitors Benchmarking -- among the competitors, there will be a objective standard emerging for everyone to keep up with; from outside monitoring and internal asking to increase the ability of competition and business reputation; company will enact some goals and set some timeline for its own implementation and improvement. Continuous improvement -- pressure and incentive both from outside and inside to help the industry have continuous improvement business has better capacity and position to provide needed information; IR can even enhance transparency and accountability to the industry; Suggestion – making legal obligation clear for the regulated firms; ensuring the quality, accuracy, and reliability of disclosed information (enhancing monitoring);

For the public – enhancing risk communication; ensuring meaningful participation, promoting democratic decision making process; Suggestion -- to improve the information and to provide community members with adequate analysis of the data in the context of their lives (environmental justice)…

Remaining Issues & Further Consideration What kind of information is important to trigger the mechanism of risk communication? What kind of information is proper for the public to understand? Is there any real incentive for the industry to improve its environmental performance? How to make sure the information from the industry is correct and complete? Environmental injustice -- information asymmetries and difficulty to access needed information