An unworthy opponent
For about a month, I’ve had my eye on the Arizona legislature’s uncanny will to pass fanatically conservative laws. This week seemed to reinforce that will, illustrated by these headlines: “Arizona bill would let mine firms shroud cases of pollution” and "Arizona okays secrecy for environmental reports.”
While the headlines grab readers, they’re hyperbolic, and probably unhealthy for caffeinated, conspiracy-minded individuals. Arizona’s new law is actually nothing new, and it may even make sense. It’s a throwback law, like high leggings on baseball players and Victory gardens.
Arizona’s HB 2199, now waiting on Gov. Jan Brewer’s desk for approval, follows in the footsteps of a series of environmental audit privilege legislation passed two decades ago. In the 1990s, similar measures passed through the congressional houses of 20 states. The privileges seal from public view information contained within an internal environmental audit.
It may sound scary (businesses keeping environmental pollution secret!) but in reality, audit privileges allow businesses to avoid litigation stemming from environmental problems they find while policing themselves. Businesses say such protections allow them to conduct more honest environmental reviews because they don’t fear legal action from the results going public. As a corollary to such audit privileges, state regulatory agencies usually grant businesses civil and administrative immunity when they report and act on violations they find, an incentive that encourages reporting and transparency.
“Without this environmental audit privilege,” says Garrick Taylor, vice president of government relations for the Arizona Chamber of Commerce and Industry, “businesses are essentially incentivized to ‘teach to (the) test’ or address only the areas that inspectors will check.”
Some environmental groups, including Sandy Bahr, the Grand Canyon chapter director of the Sierra Club who lobbied against Arizona’s legislation, claim these laws offer heavy polluters “a shield” with which to conceal all their dirt. State environmental agencies will have access to the audit information, but Bahr doesn't trust that, without public oversight, those agencies will do the right thing.
“Our whole environmental law is based on the public’s right to know. And who is there to hold the agencies accountable if everything is shielded in an audit?”
Yes indeed, a reasonable concern, but businesses have plenty of room to argue this law is in both private and public interest. An Oxford University Press study published in 2011 shows that granting businesses private audit privileges reduces total toxic air pollution by 35 percent. It should be noted, though, that only holds true if states limit privileges to civil or administrative immunity. Extending immunity to avoid criminal prosecution has the opposite effect of increasing toxic air pollution by 23 percent -- Colorado is a prime example of this negative case. Its lax standards for offering criminal immunities are low enough to put the state at odds with federal regulators, and, perhaps as a result, Colorado is one of the largest air polluters in the West
At the federal level, the Environmental Protection Agency has a similar process allowing businesses to self-police without fear of retribution, a policy put in place during the Clinton years. The EPA adopted its own immunity policy largely because they don’t have the resources to keep watch over everyone.
The Sierra Club's Bahr said the EPA seemed content to stand and watch the legislative process in Arizona take place. Another interpretation is that the agency is monitoring the same legislative language they’ve been monitoring for over 20 years in various states. Business must meet specific criteria before they are offered federal immunities. They can’t be repeat offenders, they can’t have willfully caused serious harm, and their admissions of wrong-doing must come voluntarily.
And the incentives to conduct clean(er) business are enticing. If a company notifies the EPA of a violation, the EPA waves up to 75 percent of all penalties. The agency will also wave criminal prosecution, and they promise not to “use an environmental audit report to initiate a civil or criminal investigation” if the company maintains compliance with audit standards.
None of this absolves the business from cleaning up or facing prosecution for repeated violations. And none of this truly stops Bahr and other enviros from watch-dogging businesses or agencies because site monitoring data and all random inspections will remain public information.
Simply stated, enviros worrying about this new Arizona law have bigger fish to fry, like a Supreme Court that allows gross water pollution and drought management. In fact, the biggest polluter in the West comes from a state without private environmental audit privileges: California.
So don’t let the headlines scare you. Plenty of environmental ills persist in plain view.
Flickr image provided by Jane Cantral.