Environmental Laws and Information Access

• Author: Sarah Lamdan
• Pages: 79-108

79

Chapter 4: Environmental

Lawsand InformationAccess

Law in Action

Bert Sampson, a microbiologist at Albany College in New York Sta te, is studying

the Hoosick Falls public wa ter supply as part of his research. Durin g routine test-

ing, he discovered elevated levels of per uorooctanoic acid (PFOA), a toxic car-

cinogen, in the wate r. Suspecting the le vels could be connected to a nearby plastic

manufacturing plant , Sampson wants to know what type of chem ical monitoring

is done for local d rinking water systems. What types of state and federal laws

require the re porting of the amounts of PFOA in the water? Where can he locate

further data and inf ormation as well as report his ndings?

I. Overview: Environmental Laws’ Access Provisions

As we have seen, the U.S. environmental statutory scheme is uniquely

diverse a nd presents the public with critical access to a wide a ssortment of

environmental information. e U.S. Environmental Protection Agency

(EPA) is the agency responsible for managing the majority of these infor-

mation resources. “Access to accurate information sucient to eectively

participate in managing human health and environmental risk s” is one of

the primary tenets of the Agency’s mission to protect human hea lth and

the environment.1

While U.S. environmental law provides an array of information access

opportunities, there are a number of transparency obstacles in the current

environmental law regime. First, the amount of environmental information

that is available is staggering. As an illustration, for the last 45 years EPA

has been responsible for the administration of at least 29 major federal laws

and several executive orders. Moreover, these laws apply at both the national

and the state level and require the “public[ation of ] regulatory, scientic,

administrative, educational, and enforcement materials on subjects ranging

from air to water to climate change.”2 e Agency both creates and takes in

1. U.S. EPA, Our Mission and What We Do, https://www.epa.gov/aboutepa/our-mission-and-what-we-do

(last visited Nov. 28, 2016).

2. Taryn L. Rucinski, An Environmental Legal Practitioner’s Guide to EPA’s Website, 41 ELR 10416, 10416

(May 2012).

80 Environmental Information: Research, Access & Environmental Decisionmaking

billions of pieces of information under these projects and requirements. e

volume and variety of programs managed by EPA under various mandates

makes it almost impossible to dedicate the time and resources needed to

streamline and improve Agency information access practices. In short, it is

easy to get lost in the “green haze” of EPA.gov and other government web-

sites that publish information collected pursuant to environmental laws.3

Second, there is no uniformity to the information access provisions that

appear in U.S. environmental laws. Dierent laws require dierent types

of information collections, which are processed and then presented in vari-

ous ways depending upon statutory and regulatory requirements. Some laws

require in-depth reports while others require only minimal numeric data

inputs. EPA, under the U.S. environmental law scheme, creates a stream of

information and data that is virtually impossible to reconcile into a holistic

snapshot for any given locality or natural resource. In addition, because EPA’s

information resources are derived from specic, disparate environmental laws,

the information tends to be siloed into dierent statutory repositories. Envi-

ronmental information in EPA databases is usually statute-specic with very

little cross-applicability. In essence, U.S. federal environmental law does not

prescribe uniformity in the type of information collected nor in the delivery

method for disseminating that information.

Last, the type of data made available to the public varies greatly depending

upon the law. Some environmental laws focus on the public’s right to know,

explicitly creating information access to municipal ocials and members of

the general public. Other laws mandate pollution disclosures be made to

federal and state agencies, but not necessarily to the public. It is not always

the case that information collected by the government under environmen-

tal statutes can be handed over to private citizens for environmental deci-

sionmaking purposes. Much of the information collected pursuant to U.S.

federal environmental law is subject to privacy measures exempting certain

types of information from public access. Research data and other trade secret

materials may be unavailable despite the statutory information mandates. In

fact, private entities required to submit data under U.S. environmental law

can preemptively mark their documents as condential business information

(CBI) to avoid Freedom of Information Act (FOIA) disclosure to the public.4

Environmenta l laws do not generally preclude information seekers from

using FOI A, information collected under the various environmental laws,

from permitting information to environmental impact statements to pol-

3. Id.

4. For a further discussion of the limits of CBI disclosure, see infra Chapter 8.