10

Commission for

Environmental Cooperation

of North America

North American

Environmental

Law and Policy

N • A • E • L • P
For more information about this or other publications from the CEC,

contact:

Commission for Environmental Cooperation of North America

393, rue St-Jacques Ouest, bureau 200

Montréal (Québec) Canada H2Y 1N9

Tel.: (514) 350-4300

Fax: (514) 350-4314

E-mail: info@ccemtl.org

http://www.cec.org

ISBN: 2-89451-623-1

© Commission for Environmental Cooperation of North America, 2003

ALL RIGHTS RESERVED.

Legal Deposit - Bibliothèque nationale du Québec, 2003

Legal Deposit - Bibliothèque nationale du Canada, 2003

Disponible en français – ISBN: 2-89451-625-8

Disponible en español – ISBN: 2-89451-624-X

This publication was prepared by the Secretariat of the Commission for

Environmental Cooperation of North America (CEC). The views contained herein do not necessarily reflect the views of the governments of

Canada, Mexico, or the United States of America.
PROFILE

In North America, we share a rich environmental heritage that

includes air, oceans and rivers, mountains and forests. Together, these

elements form the basis of a complex network of ecosystems that

sustains our livelihoods and well-being. If these ecosystems are to

continue to be a source of life and prosperity, they must be protected.

Doing so is a responsibility shared by Canada, Mexico, and the United

States.

The Commission for Environmental Cooperation of North America (CEC) is an international organization created by Canada, Mexico,

and the United States under the North American Agreement on Environmental Cooperation (NAAEC) to address regional environmental

concerns, help prevent potential trade and environmental conflicts, and

promote the effective enforcement of environmental law. The Agreement complements the environmental provisions of the North American Free Trade Agreement (NAFTA).

The CEC accomplishes its work through the combined efforts of its

three principal components: the Council, the Secretariat and the Joint

Public Advisory Committee (JPAC). The Council is the governing body

of the CEC and is composed of the highest-level environmental authorities from each of the three countries. The Secretariat implements the

annual work program and provides administrative, technical and operational support to the Council. The Joint Public Advisory Committee is

composed of 15 citizens, five from each of the three countries, and

advises the Council on any matter within the scope of the Agreement.

MISSION

The CEC facilitates cooperation and public participation to foster

conservation, protection and enhancement of the North American environment for the benefit of present and future generations, in the context

of increasing economic, trade and social links among Canada, Mexico

and the United States.

VII
NORTH AMERICAN ENVIRONMENTAL

LAW AND POLICY SERIES

Produced by the CEC, the North American Environmental Law

and Policy series presents some of the most salient recent trends and

developments in environmental law and policy in Canada, Mexico and

the United States, including official documents related to the novel citizen submission procedure empowering individuals from the NAFTA

countries to allege that a Party to the agreement is failing to effectively

enforce its environmental laws.

VIII NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
TABLE OF CONTENTS

Public Access to Government-Held Environmental

Information – Report on North American Law,

Policy and Practice . . . . . . . . . . . . . . . . . . . . . . . . . 1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Mexico. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

United States . . . . . . . . . . . . . . . . . . . . . . . . 135

The Precautionary Principle in North American and

International Law. . . . . . . . . . . . . . . . . . . . . . . . . 191

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . 193

Precaution in the Federal Legislation of the

NAFTA Parties . . . . . . . . . . . . . . . . . . . . . . . 195

Precaution in International Environmental Policy

and United States Law and Practice . . . . . . . . . . . 219

IX

Public Access to

Government-held

Environmental Information

Report on North American

Law, Policy and Practice

(Second Edition)

INTRODUCTION

BACKGROUND TO THE REPORT

This is the second edition of a report first published by the Commission for Environmental Cooperation of North America (CEC) in the

North American Environmental Law and Policy series in 1999. The

report was originally commissioned by the CEC Secretariat in support of

undertakings made by the CEC Council in October 1995, in a joint policy

statement issued through Council Resolution 95-8, entitled Public

Access to Environmental Information. The second edition fulfills a

request to the Secretariat, made by Council at its June 2001 Regular

Session, for a summary of confidentiality regulations in Canada, the U.S.

and other countries, with a view to providing Mexico with examples in

this area. The summary of confidentiality regulations, or “exceptions to

disclosure”, is found in the final section of each country report.

METHODOLOGY

The second edition of the report was prepared with the assistance

of non-governmental legal consultants from each of the three countries

with particular expertise in access to environmental information. The

information provided is based on analysis of legislation and policy

instruments, government reports and related literature, as well as interviews with government officials. Prior to publication, the draft report

was distributed to the governments of the three countries for review and

comment.

DISCLAIMER

This report, prepared by the CEC Secretariat with the assistance of

non-governmental legal consultants, does not necessarily reflect the

opinions or views of either the Parties or the CEC. The CEC wishes to

make clear that although certain portions of the report may reference

3
more recent developments, the report as a whole should be considered

to be up-to-date only to 1 December 2001.

A NOTE REGARDING THE SECOND EDITION

The second edition of our report is being released at a time when all

three countries are reviewing the ground rules on access to government-held information. In Canada, the 1983 Access to Information Act is

undergoing a major reform. In Mexico, federal access to information legislation, briefly described in the Mexico section of this report, came into

force on 12 June 2002. In the United States, concern for national security

has led to some changes in access-to-information policy. At the same

time, in all three countries, environmental laws are being adopted or

amended to reflect commitments by governments to foster public participation in decision-making by facilitating access to relevant information.

Katia Opalka

Legal Officer, Submissions on Enforcement Matters Unit

Commission for Environmental Cooperation of North America

4 ACCESS TO ENVIRONMENTAL INFORMATION
ACKNOWLEDGMENTS

The CEC wishes to acknowledge the many individuals and organizations who contributed to the completion of the second edition of this

report. We wish to acknowledge the team of consultants who assisted in

the update of the country reports as follows:

Canada: Canadian Environmental Law Association (CELA)

Paul Muldoon, Executive Director and Counsel

Alan D. Levy, Member, Board of Directors

Lisa McShane, Researcher and Librarian

Andrew Wray, Student-at-Law

Mexico: Centro Mexicano de Derecho Ambiental (CEMDA)

Lic. Gustavo Alanis-Ortega, President

Lic. Juan Carlos Carrillo, Legal Adviser to the

Biodiversity Program

Lic. Samantha Namnum, Strategic Projects

Coordinator

United States: Environmental Law Institute (ELI)

Carl Bruch, Senior Attorney

We further wish to acknowledge those who assisted the CEC by

providing information and reviewing the draft reports.

INTRODUCTION 5

Canada

Table of Contents

1. CONSTITUTIONAL AND LEGAL FRAMEWORK

FOR PUBLIC ACCESS TO INFORMATION . . . . . . . . . . . 13

1.1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . 13

1.2 Constitutional Framework . . . . . . . . . . . . . . . . . . 13

1.3 Overview of Federal Access Legislation, Policies and

Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

1.3.1 Access to Information Act . . . . . . . . . . . . . . . 15

1.3.2 Other Federal Access to Information Laws . . . . . 22

1.3.2.1 Workplace Hazardous Materials

Information System. . . . . . . . . . . . . . 22

1.3.2.2 Canadian Environmental Assessment

Act . . . . . . . . . . . . . . . . . . . . . . . 22

1.3.2.3 Canadian Environmental Protection

Act, 1999 . . . . . . . . . . . . . . . . . . . . 23

1.3.2.4 Pest Control Products Act . . . . . . . . . . 27

1.3.2.5 Official Languages Act . . . . . . . . . . . . 29

1.3.3 Access to Information Concerning Federal

Judicial Proceedings . . . . . . . . . . . . . . . . . . 29

1.4 Overview of Provincial Access Legislation, Policies

and Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

9
1.4.1 Freedom of Information and Protection of

Privacy Act (British Columbia) . . . . . . . . . . . . 30

1.4.2 Drinking Water Protection Legislation . . . . . . . 34

1.4.3 Access to Information Concerning Provincial

Judicial Proceedings . . . . . . . . . . . . . . . . . . 34

2. ENVIRONMENTAL ASSESSMENTS OF PROPOSED

PROJECTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

2.1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . 35

2.2 Federal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

2.3 Provincial (Alberta) . . . . . . . . . . . . . . . . . . . . . . 40

3. LICENSES OR PERMITS FOR PROPOSED PROJECTS . . . . . 42

3.1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . 42

3.2 Federal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

3.3 Provincial (Ontario) . . . . . . . . . . . . . . . . . . . . . . 45

4. PROPOSED REGULATIONS, POLICIES, PROGRAMS

AND PLANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

4.1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . 49

4.2 Federal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

4.3 Provincial (Ontario) . . . . . . . . . . . . . . . . . . . . . . 53

5. ENFORCEMENT AND COMPLIANCE ACTIONS . . . . . . . 56

5.1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . 56

5.2 Federal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

10 ACCESS TO ENVIRONMENTAL INFORMATION
5.3 Provincial (British Columbia) . . . . . . . . . . . . . . . . . 62

6. NATIONAL POLLUTANT RELEASE INVENTORY. . . . . . . 63

7. EXCEPTIONS TO DISCLOSURE . . . . . . . . . . . . . . . . . . 65

CANADA 11

1. CONSTITUTIONAL AND LEGAL FRAMEWORK FOR

PUBLIC ACCESS TO INFORMATION

1.1 Introduction

This chapter contains an overview of Canadian law, policy and

practice regarding public access to government-held environmental

information. It begins with a review of relevant constitutional provisions followed by an introduction to federal and selected provincial

access to information laws. Subsequent sections focus on five key

sources of environmental information: environmental assessment,

permitting, legislative and policy development, enforcement and compliance actions, and emissions inventories. Legislated limits on the right

to access information are mentioned throughout the text and discussed

in more detail at the end.

1.2 Constitutional Framework

The Constitution of Canada1 grants lawmaking powers to two

orders of government: Parliament and the provincial legislatures.2 It

gives each order of government exclusive legislative jurisdiction over

certain subjects. Only Parliament, for example, can enact criminal law,3

while only the provincial legislatures can make laws in relation to property and civil rights in the provinces and matters of a merely local or private nature. Parliament can make laws in relation to all matters not

specifically assigned to the provinces by the Constitution.

The environment is not included under the heads of legislative

powers listed in the Constitution, presumably because it was not yet a

topic of concern at the time of confederation. In the last decade, the

courts have held that the environment is a diffuse subject that cuts across

13

1. Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11

[hereinafter “Constitution”].

2. Canada’s territories are created by federal statutes: the Yukon Act, R.S.C. 1985, c. Y-2;

the Northwest Territories Act,R.S.C. 1985, c. N-27; and the Nunavut Act, S.C. 1993, c. 28.

3. “except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters”; Section 91(27) of the Constitution Act, 1867 (U.K.), 30 & 31

Vict., c. 3.
many different areas of constitutional responsibility, some federal and

some provincial, and that as a result jurisdiction is shared.4 The absence

of a clear division of responsibilities in environmental matters has

resulted in uncertainty regarding the limits of both federal and provincial powers to legislate in this area. Recently, the Supreme Court

recognised that municipalities also have a role in environmental regulation.5

Just as both Parliament and the provinces can make laws in relation to environmental matters, both can legislate in the area of access to

information. Their respective powers to legislate access rights are limited by the division of powers in the Constitution. The Constitution itself

does not create an explicit public right to access government-held information.

The Canadian Charter of Rights and Freedoms recognises several

rights and freedoms that have an implied access-to-information component.6 For example, the Charter declares that everyone has freedom of

thought, belief, opinion and expression, including freedom of the press

and other media of communication, as well as freedom of peaceful

assembly and freedom of association. It can be argued that access to government-held information is in many cases a precondition to the exercise

of these freedoms.

The Charter further provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof

except in accordance with the principles of fundamental justice. Fundamental justice could arguably be interpreted as guaranteeing the right of

the public to participate in environmental decisions that put life, liberty

or personal security at risk.7 This subsumes a right of access to environmental information. There have not yet been any rulings by Canadian

courts, of which we are aware, identifying a constitutional right to access

environmental information.

The Constitution requires certain jurisdictions, including Parliament, to print and publish their statutes, records and journals in both

14 ACCESS TO ENVIRONMENTAL INFORMATION

4. See R. v. Hydro-Québec, [1997] 3 S.C.R. 213. See also Friends of the Oldman River Society

v. Canada (Minister of Transport), [1992] 1 S.C.R. 3.

5. In 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town of), [2001] 2 S.C.R.

241, the Court upheld a municipality’s right to enact a by-law limiting the cosmetic

use of pesticides on the basis that the provincial law of Quebec authorized local governments to enact general health bylaws.

6. Part I of the Constitution [hereinafter Charter].

7. See M. Jackman, “Rights and participation: The use of the Charter to supervise the

regulatory process” in (1990) 4 Can. J. Adm. L. & Pract. 23.
official languages. Under the Charter, any member of the public in Canada has the right to communicate with and receive available services

from the head or central office of an institution of Parliament or the government of Canada in both English and French.

1.3 Overview of Federal Access Legislation, Policies and Practices

1.3.1 Access to Information Act

Legal Right of Access to Information

The federal Access to Information Act (“AIA”)8 came into force in

1983 and is intended to complement existing procedures for accessing

government information. Its purpose is to extend the laws of Canada to

provide an enforceable right of access to information in records under

the control of a federal government institution in accordance with the

following principles: (i) government information should be available to

the public; (ii) necessary exceptions to the right of access should be limited and specific; and (iii) decisions on the disclosure of government

information should be reviewed independently of government. The Act

and its administration are subject to review on a permanent basis by a

committee of the House of Commons.

Under the AIA, all Canadian citizens, permanent residents and

other individuals and corporations that are present in Canada must,

upon request, be given access to any record–subject to the exceptions

described below–under the control of a government institution.9 The

Act defines “record” broadly to include any documentary material,

regardless of physical form or characteristics.10 The AIA does not apply

to published material or material available for purchase by the public,

CANADA 15

8. R.S.C. 1985, c. A-1.

9. Ibid. at s. 4 and Access to Information Act Extension Order, No. 1, SOR/89-207. Government institutions subject to the AIA are listed in a schedule to the Act. Crown

corporations are not subject to the Act. In response to public demands that it be

included under the AIA and that its activities be subject to assessment under

CEAA (see below, Section 2.2.), the Canadian Export Development Corporation

(“CEDC”) adopted an Environmental Review Directive and issued enhanced disclosure rules for environmental and social impacts of projects it is associated with,

including notice and comment provisions. See online: CEDC <http://www.edc.

ca/corpinfo/csr/disclosure/enhanced_e.htm> (date accessed: 4 March 2002).

10. Compare the Quebec Act respecting access to documents held by public bodies and the

protection of personal information, R.S.Q., c. A-2.1 [hereinafter the “Quebec AIA”],

which also has a broad definition of record (it uses “document”) but states that

“[t]he right does not extend to personal notes written on a document or to sketches,

outlines, drafts, preliminary notes or other documents of the same nature.”
Cabinet confidences11 and draft legislation. These categories of materials are said to be “excluded” from the application of the Act.

Access requests must be made in writing to the appropriate government institution. To help the public make these requests, the Act

requires the minister in charge of the Act12 to produce a yearly publication describing the organization and responsibilities of each government institution along with a description of the classes of record under

its control. The publication must also contain a list of manuals used by

employees in carrying out the institution’s programs and activities and

provide the title and address of the person in charge of processing access

requests.13

Subject to certain exceptions and to the payment of applicable fees,

the applicant receives a written response and is granted an opportunity

to examine the record (or part thereof) or is given a copy thereof within

thirty days of receipt of the request by the government institution.

The Act lists categories of information that are exempted from disclosure and in respect of which government institutions are either

obliged or allowed to deny access requests. Included is information

relating to international and federal-provincial affairs, national defense,

law enforcement, the economic interests of Canada, personal information, information protected by solicitor-client privilege and third-party

information. In certain cases where government institutions are given

discretion regarding whether or not to disclose information, the decision

not to disclose must be based on a reasonable apprehension of injury to

the interests being protected. Any part of a record that does not contain

exempted information and that can reasonably be severed from the rest

must be disclosed.

When access is denied, the government institution must inform the

applicant of the provision of the Act upon which it bases its refusal, but it

is not required to tell the applicant whether the record actually exists.

16 ACCESS TO ENVIRONMENTAL INFORMATION

11. These include memoranda, discussion papers, agenda, records of deliberations,

records reflecting communications between ministers of the Crown on matters

relating to the making of government decisions or the formulation of government

policy, and briefing notes; s. 69(1) of the AIA.

12. The President of the Treasury Board is responsible for the administration of the

Act.

13. To meet this requirement, the federal government has created Info Source, a series

of publications and databases containing information about the government, its

organizations and information holdings, as well as information related to the AIA.

Online: Treasury Board of Canada Secretariat <http://infosource.gc.ca> (last

modified: 16 March 2001).
When access is not granted within the time limits set forth in the Act,

access is deemed to have been denied.

Third parties, meaning anyone other than the applicant and the

government institution, are given the right to be informed (if reasonably

possible) and to consent or object when a government institution is considering disclosing information whose disclosure could be prejudicial to

their interests. The head of the government institution may nevertheless

disclose third-party information if it would be in the public interest to do

so, as it relates to public health, safety or protection of the environment,

but only if the public interest clearly outweighs potential harm to the

financial interests of the third party. A government institution may not

refuse to disclose that part of a third-party record which contains results

of product or environmental testing carried out by or on behalf of a government institution. The head of a government institution cannot be

prosecuted or sued for disclosing third-party information in good faith

or for failing to give the required third-party notice if reasonable care

was taken to give such notice.

The AIA creates the office of Information Commissioner to investigate complaints relating to requesting or obtaining access to records

under the Act. The Commissioner holds office during good behavior

and can be removed at any time on address of the Senate and House of

Commons. When the Commissioner finds that a denial of an access

request is unfounded and the government institution continues to deny

access, the complainant, or the Commissioner on behalf of the complainant, can make an application to the Federal Court to force disclosure.

Before the Court, the government institution has the burden of establishing that its refusal to grant access is authorized under the Act.

The power of the Commissioner and the Court to recommend the

disclosure of documents is limited to “records to which this Act

applies.” This has been interpreted by a government institution to mean

that the Commissioner and the Court lack power first, to review a decision to label a record a “Cabinet confidence” and then, to deny access on

the basis that such confidences are excluded from the application of the

Act. This interpretation was successfully challenged in court.14

CANADA 17

14. See Information Commissioner of Canada v. Canada (Minister of the Environment), 2001

FCT 277 (F.C.T.D.). In that case, the trial judge found that the government institution had improperly attempted to circumvent disclosure under s. 69(3)(b) of the

AIA (discussion papers have to be released once the decisions to which they relate

have been made public or four years have elapsed since the decisions were made)

by including the content of discussion papers in Cabinet memoranda which are

never subject to disclosure under the AIA. He ordered that the memoranda in question be reviewed for the purpose of determining whether the “discussion paper”
The head of each government institution and the Information

Commissioner submit annual reports to Parliament on the administration of the AIA.

Access Policies

The AIA is administered by the Secretariat of the Treasury Board of

Canada. The Treasury Board has published an Access to Information

Policy and Guidelines,15 and it recommends that these documents be read

in conjunction with the Management of Government Information Holdings

Policy, the Privacy and Data Protection Policy, the Security Policy of the Government of Canada and theCommunications Policy of the Government of Canada.

The purpose of the Access to Information Policy is to set out requirements that must be met in order to ensure effective and consistent application of the AIA and its regulations across government institutions. It

requires institutions to be able to account for all deliberations and decisions taken concerning each request. It also requires them to participate

in a Coordination of Access to Information Requests (“CAIR”) System

and identify requests that may be interdepartmental in scope or involve

government-wide legal or policy issues. The Guidelines, which are

intended primarily for use by public servants, state that “[w]hile information may technically be in an exemptible category, it is government

policy to release it when there is no need to withhold it”16 and they cite a

judicial decision ruling that “doubt ought to be resolved in favor of disclosure.”17

The Communications Policy requires subject institutions of the Government of Canada to respond promptly to information requests or

inquiries from the public, without undue recourse to the AIA. It requires

that prompt and clear explanations be provided when information

18 ACCESS TO ENVIRONMENTAL INFORMATION

component could be severed and therefore disclosed as required by s. 25 of the

AIA. See also Canada, 2000-2001 Annual Report of the Information Commissioner of

Canada (Ottawa: Queen’s Printer, 2001), c. 4–The Year in Review, “Stubborn Resistance”; online: <http://www.infocom.gc.ca/reports/section_display-e.asp?int

SectionId=137> (last modified: 31 July 2001).

15. Financial and Information Management Branch, Treasury Board Secretariat, Treasury Board Manual–Access to Information (Ottawa: Canada Communication Group,

July 1994), online: <http://www.tbs-sct.gc.ca/pubs_pol/gospubs/TBM_121/

siglist_e.html> (last modified: 8 March 2001). See also Info Source, supra, note 12.

16. Section 1 of the Guidelines (as revised 1 December 1993).

17. Maislin Industries v. Canada (Minister of Industry, Trade and Commerce) et al., [1984] 1

F.C. 939 (F.C.T.D.) at 942-43; s. 3 of the Guidelines.
requested by the public is unavailable, and that institutions make available to the public information on the standard of service an institution

provides to the public, including timelines for responding to inquiries,

mail and complaints. Institutions must provide information free of

charge when such information is in their control and it (a) is needed by

individuals to make use of a service or program for which they are eligible; (b) explains the rights, entitlements and obligations of individuals;

(c) consists of personal information requested by the individual whom it

concerns; (d) informs the public about dangers or risks to health, safety

or the environment; (e) is required for public understanding of a major

new priority, law, policy, program or service; or (f) is requested under

the AIA and fees are waived at the discretion of the head of the institution. In addition, institutions must ensure that publications for sale are

not comprised primarily of information that otherwise must be provided free of charge.18

As a matter of policy, government institutions are encouraged to

make information available for purchase by the public, especially where

frequent access requests indicate a significant degree of public interest.

Once it is available for purchase, information is no longer subject to the

AIA and can only be accessed by paying the full price.19

Ease of Access

The AIA contains several potential obstacles to convenient public

access to information. The first is that requests “must be made in writing

to the governmental institution that has control of the record and shall

provide sufficient detail to enable an experienced employee of the institution with a reasonable effort to identify the record.” The onus is on the

applicant to identify the record and its location. The Act does not impose

an affirmative duty on government to assist access seekers in identifying

CANADA 19

18. Policy requirements 1(g)-(i), 2 and 27(f) of the Communications Policy (in effect 1

April 2002), online: Treasury Board Secretariat <http://www.tbs-sct.gc.ca/pubs_

pol/sipubs/comm/comm1_e.html> (date accessed: 29 August 2002).

19. Guidelines issued by the Treasury Board Secretariat in cooperation with the Interdepartmental Working Group on Database Industry Support in 1991 support

licensing governmental information to private sector vendors as a way of generating revenue, online: Treasury Board Secretariat <http://www.tbs-sct.gc.ca/

Pubs_pol/ciopubs/TB_OIMP/GUIWP_e.html> (date accessed: 22 January 2002).

For a discussion of government policy regarding cost recovery and market pricing

in connection with the dissemination of information, see “Information Technology

and Open Government” (Ottawa: Office of the Information Commissioner of

Canada, 1994) at pp. 13 et seq., online: Office of the Information Commissioner

of Canada <http://www.infocom.gc.ca/publications/pdf_en/ogov_e.pdf> (date

accessed: 23 March 2002). See also s. 68(1) of the AIA.
and locating the appropriate records.20 Furthermore, if a record is not

available in the language spoken by the applicant, the head of the

government institution is allowed to consider whether it would be in

the public interest to have the document translated, instead of being

required to have a translation prepared on request. The same is true of a

record that is not available in an alternative format required by someone

with a sensory disability: the record will be converted to an alternative

format only if the head of the government institution considers it reasonable to do so.

In his 2000-2001 report to Parliament, the Information Commissioner identified four key areas in which access to information programs

could be improved. On an administrative level, he recommended

increased funding of access to information programs and a greater

emphasis on staff training. He also recommended that all departments

develop access procedures containing the fewest possible steps for processing requests. Finally, he suggested that senior department personnel

should be made responsible for the success of access programs and for

encouraging all staff to have a positive attitude toward complying with

the requirements of the AIA.21

Timeliness

Delays in the processing of access requests have increased over the

years. In 2000-2001, the Information Commissioner received 1,680 complaints, representing a gradual increase to nearly double the figure of a

decade ago. Almost half of the complaints concerned delays.22

Affordability

The application fee is $5.00. Additional fees may be charged for

costs associated with document reproduction, and there is a fee of $2.50

for every quarter hour in excess of five hours that is reasonably required

by employees of the governmental institution to search for the record

and prepare it for disclosure. The fee for photocopying is $0.20 per page

and for microfiche to paper duplications, $0.25 per fiche. The Informa20 ACCESS TO ENVIRONMENTAL INFORMATION

20. Compare s. 44 of the Quebec AIA which states that “[t]he person in charge must

lend assistance in drafting a request and identifying the document requested to any

applicant who requires it.”

21. Canada, 2000-2001 Annual Report of the Information Commissioner of Canada (Ottawa:

Queen’s Printer, 2001); c. 1–Restoring the Foundations of Accountability, “Why do

these problems persist?” and “Solving the Problems”, online: Information Commissioner of Canada <http://www.infocom.gc.ca/reports/2000-2001t-e.asp>

(last modified: 31 July 2001).

22. Ibid.
tion Commissioner has recommended reviewing the fee structure to

reflect lower costs associated with computer searches.23

Access to Information Task Force

In August 2000, the President of the Treasury Board and the Minister of Justice created a government Access to Information Review Task

Force whose mandate is to conduct a sweeping review of the AIA and its

administration through internal and public consultations.24 Written

submissions were invited.25 The Task Force’s report is expected to be

released in the spring of 2002.

The Information Commissioner made a number of recommendations to the Task Force regarding potential amendments to improve the

AIA, including closing gaps in coverage of the AIA and creating incentives for timely responses and penalties for failing to meet response

deadlines. His principal recommendation was to transform the Cabinet

confidences exclusion into a focused exemption subject to independent

review.26 He indicated that he was drawing on recommendations found

in his 2000-2001 Report to Parliament, many of which date as far back as

1986.

Government representatives that regularly work with industry

told the Task Force that protection of third-party confidential information needs to be improved if industry is to be expected to disclose such

information to government.27

CANADA 21

23. Ibid. at 67.

24. The Task Force’s homepage is at <http://www.atirtf-geai.gc.ca/home-e.html>

(last modified: 15 August 2001).

25. None of the submissions published on the Task Force’s website relate specifically

to access to environmental information, although two submissions related to

access to information about the activities of the Canadian International Development Agency and the Export Development Corporation in connection with

projects that have significant environmental impacts. Background materials

released for the public consultations indicate that in 1999-2000, there were no environmental institutions among the ten institutions having received the most access

requests under the AIA; Canada, Access to Information Review Task Force, Access

to Information Review–Consultation Paper (30 March 2001) Annex A; online: Access

to Information Review Task Force <http://www.atirtf-geai.gc.ca/consultation

2001-03-30-e.html> (last modified: 15 August 2001).

26. Canada, Speech by the Information Commissioner to the External Advisory Committee of the Access to Information Review Task Force (Ottawa: 26 June 2001),

online: Information Commissioner of Canada <http://www.infocom.gc.ca/

speeches/speechview-e.asp?intspeechId=58> (last modified: 31 July 2001).

27. Canada, Access to Information Review Task Force, Public Service Consultations,

Consultation–Financial and Commercial Information (16 March 2001), online:

Access to Information Review Task Force <http://www.atirtf-geai.gc.ca/consultation2001-03-16b-e.html> (date accessed: 18 January 2002).
The Department of Fisheries and Oceans and other departments

asked to be included in the list of investigative bodies whose investigation records are exempt from disclosure pursuant to Section 16(1)(a) of

the AIA.28 They claim that since their records are currently subject to disclosure pursuant to access to information requests, other government

institutions are loathe to share with them information that would be

helpful in pursuing enforcement activities.

1.3.2 Other Federal Access to Information Laws

1.3.2.1 Workplace Hazardous Materials Information System

The Workplace Hazardous Materials Information System

(“WHMIS”) is a combination of federal and provincial laws designed to

guarantee workers’ right to know about the potential dangers of hazardous materials and products found in the workplace. The WHMIS

includes three main sets of requirements: labeling, disclosure by means

of material safety data sheets (“MSDSs”) and worker training and education. The federal Hazardous Products Act and associated Controlled Substances Regulations require importers, manufacturers, processors and

sellers to warn of the hazardous nature of such products and materials.29

Provincial and territorial legislation and the Canada Labour Code require

employers to ensure that hazardous materials are appropriately labeled,

that MSDSs are readily available to workers and that workers are educated and trained to handle hazardous materials safely.

The Hazardous Materials Information Review Act sets out a mechanism for claiming confidentiality in respect of information required to be

disclosed under the Hazardous Products Act.30 The Hazardous Materials

Information Review Commission processes such claims using prescribed regulatory criteria.

1.3.2.2 Canadian Environmental Assessment Act

The Canadian Environmental Assessment Act (“CEAA”), which sets

out additional means of access to environmental information at the federal level, is discussed below, in Section 2.31

22 ACCESS TO ENVIRONMENTAL INFORMATION

28. Canada, Access to Information Review Task Force, Public Service Consultations,

Consultation–Security, Defense and Law Enforcement Information (20 February

2001), online: Access to Information Review Task Force <http://www.atirtf-geai.

gc.ca/consultation2001-02-20-e.html> (date accessed: 18 January 2002).

29. R.S.C. 1985, c. H-3.

30. R.S.C. 1985, c. 24 (3rd Supp.), Part III.

31. S.C. 1992, c. 37.
1.3.2.3 Canadian Environmental Protection Act, 1999

The Canadian Environmental Protection Act, 1999 (“CEPA”)32

replaces the 1988 Canadian Environmental Protection Act (“CEPA 1988”).

CEPA covers a range of subject matters under federal jurisdiction, with a

focus on contributing to sustainable development through pollution

prevention, primarily by reducing releases and in certain cases eliminating the presence of toxic and other harmful substances in the environment by means of cooperation with other governments and aboriginal

people, public education, research, and voluntary and regulatory initiatives.33 Every year, the Minister of the Environment must report to Parliament on the Act’s administration and enforcement. The Act and its

administration are subject to comprehensive review by a parliamentary

committee every five years.

CEPA is discussed below in Section 4 on Proposed Regulations,

Policies, Programs and Plans; Section 5 on Enforcement and Compliance

Actions; and Section 6 regarding the National Pollutant Release Inventory. Certain provisions of CEPA relating specifically to gathering and

disseminating information on toxic substances and the state of the environment are discussed below.

CEPA gives the federal Minister of the Environment authority to

require private persons and companies to test, and provide the government with information about and samples of, substances they import,

export, manufacture, transport, process, distribute, use and release into

the environment. Some of these requirements are found in regulations,

others take the form of a notice published in the Canada Gazette,34 while

CANADA 23

32. S.C. 1999, c. 33.

33. The Act has twelve parts: 1 Administration; 2 Public Participation; 3 Information

Gathering, Objectives, Guidelines and Codes of Practice; 4 Pollution Prevention; 5

Controlling Toxic Substances; 6 Animate Products of Biotechnology; 7 Controlling

Pollution and Managing Wastes; 8 Environmental Matters Related to Emergencies;

9 Government Operations and Federal and Aboriginal Land; 10 Enforcement; 11

Miscellaneous Matters; 12 Consequential Amendments, Repeal, Transitional Provisions and Coming Into Force.

34. The Canada Gazette is published in French and in English under the authority of the

Statutory Instruments Act (R.S.C. 1985, c. S-22). Part I is published every Saturday

and contains all formal public notices, official appointments, miscellaneous notices

and proposed regulations from the government and private sectors that are

required to be published by a federal statute or a regulation. Part II is published

every second Wednesday and contains regulations as defined in the Statutory

Instruments Act, and certain other classes of statutory instruments. Part III is published as soon as is reasonably practicable after Royal Assent and contains the most

recent Public Acts of Parliament and their enactment proclamations. The cost of a

yearly subscription is $135.00 for Part I, $67.50 for Part II and $28.50 for Part III.

The Canada Gazette is also available on the Internet at Government of Canada

<http://canada.gc.ca/gazette/gazette_e.html> (last modified: 29 October 2001).
others are mailed directly to designated persons and companies. The

Minister uses this information, inter alia, to publish a Domestic Substances List, Non-Domestic Substances List, Priority Substances List,

Toxic Substances List, Virtual Elimination List and Export Control List.

As the names of the lists suggest, the Act mandates the Minister to

identify substances present in Canada and then prioritize them for

assessment and possible regulation, with the objective of virtually eliminating the most toxic substances from the Canadian environment. The

lists themselves, as well as substance assessment reports and decisions

on follow-up actions are published in the Canada Gazette.

Persons required by notice to provide information may apply for

extensions or waivers. Notice of waivers must be published in the

Canada Gazette. The Act protects confidential business information by

allowing substances to be identified using masked names and by

allowing requests for confidentiality, subject to a limited public interest

override. The public interest override does not extend to information

protected from disclosure under the Hazardous Materials Information

Review Act (see above, Section 1.3.2.1).

The Act allows members of the public to request priority assessment of a substance. The public can also object to delays in assessing substances and to a decision that a substance should not be added to the

Toxic Substances List. When a substance has been added to the Toxic

Substances List,35 CEPA gives the Minister authority to require the preparation of pollution prevention plans and environmental emergency

plans in connection with the substance. While the Act does not require

such plans to be filed with the Minister, he has the power to require them

to be submitted to him for review. Subject to the exceptions to disclosure

stipulated in the AIA (see below, Section 7), such plans would then be

subject to public disclosure pursuant to an access to information request.

Under CEPA, the Ministers of Health and the Environment have

the power to make interim orders in relation to substances they believe

to be toxic or substances on the Toxic Substances List that they believe

are not adequately regulated, in circumstances where they believe that

immediate action is required to deal with a significant danger to the

environment or to human life or health. The order ceases to have effect

after 14 days unless it is approved by the Governor in Council after consultation with affected governments and other federal ministers. Notice

of the order must be published in the Canada Gazette within 90 days of

approval by the Governor in Council, and no one can be convicted of

24 ACCESS TO ENVIRONMENTAL INFORMATION

35. And in other circumstances described in the Act.
contravening an order prior to such publication, unless the Crown can

prove that such person had been notified of the order. In response to the

events of 11 September 2001, draft legislation has been tabled in Parliament that would extend this order power to other substances in cases of

environmental emergencies.36 The exercise of this new power would not

be subject to the requirement to report to Parliament on its administration. Furthermore, the proposed legislation would make such interim

orders exempt from publication in the Canada Gazette.

Besides publishing information on substances, CEPA requires

reporting on the state of the environment. The last state of the environment report produced under CEPA 1988 was published in 1996.37 Since

then, only issue-specific reports have been released, on topics such as

sustainable agriculture and forest health. CEPA requires the Minister to

conduct research, gather data and publish, through an information

clearinghouse,38 information on pollution prevention, pertinent information on all aspects of environmental quality, and a periodic report on

the state of the Canadian environment. The Minister must also establish,

operate and maintain a system for monitoring environmental quality.

In October 2000, a multi-stakeholder task force was created by

Environment Canada to assess the availability of environmental information in Canada and make recommendations for government action.

In its report, released in October 2001, the task force concluded that

Canada lacks environmental information and that the information that

does exist is not effectively integrated and disseminated.39

CANADA 25

36. Bill C-55, The Public Safety Act, 1st Sess., 37th Parl., 2002 (1st reading 29 April 2002),

Part 3.

37. Canada, State of Canada’s Environment: 1996 (Ottawa: Environment Canada, 1996);

online: Environment Canada <http://www.ec.gc.ca/report_e.html> (last modified: 15 January 2002).

38. See the Canadian Pollution Prevention Information Clearinghouse, online: Environment Canada <http://www3.ec.gc.ca/cppic/en/index.cfm> (last modified 23

March 2002).

39. The report notes that the 2001 Environmental Sustainability Index ranks Canada 25th

in the world in the availability of environmental information, well behind leaders

such as the Netherlands, Norway and the United States which have been

more successful in mounting a cooperative, integrated approach to the collection

and dissemination of environmental information; Canada, Sharing Environmental

Decisions: Final Report of the Task Force on a Canadian Information System for the Environment (CISE) (Ottawa: Minister of Public Works and Government Services,

October 2001), online: Environment Canada <http://www.ec.gc.ca/cise/eng/

reports.cfm> (last modified: 4 November 2001). The conclusions and recommendations reproduced herein are drawn from the “Summary of Task Force

Recommendations” and from Section 1, “The Case for Better Environmental Information”. See also Annex 4–Environmental Information in World Economic Forum
The task force bemoaned the fact that Environment Canada has

stopped reporting on the state of the environment and noted that past

reports suffered from a lack of current data, a lack of data that was

geospatially complete across Canada, lack of standardization of information across jurisdictions and lack of long-term data on which to base

indicators and subsequent reporting. Long-term data sets that did exist

were not relevant to contemporary policy issues. The report also indicated that Canada has no comprehensive system for measuring success

in achieving environmental policy goals and implementation of international environmental commitments. As a result, Canadians are not in a

position to evaluate government performance in this area. The same is

true of the ability of Canadians to monitor corporate environmental

performance, since corporate environmental reporting is not centrally

accessible, varies across companies and is rarely subject to third-party

review.40

Canada’s principal weaknesses were identified as being a lack of

environmental information resulting from reduced government monitoring and the absence of a strategic approach to collecting and disseminating information. The report lists environmental health, climate

change, and biodiversity as urgent priority areas requiring improved

quality, integration and reporting of information. It recommends establishing a Canadian Information System for the Environment (“CISE”)

that would contain environmental data to support a national set of sustainable development indicators, data to support environmental indicators, continuous reporting on the state of the environment and the state

of the government’s environmental management system, and means for

setting environmental priorities and promoting community awareness

and involvement in environmental matters. It also recommends establishing a Canadian Institute for Environmental Information to promote

collective priority-setting, the use of common standards, and the public’s use of the CISE.

26 ACCESS TO ENVIRONMENTAL INFORMATION

Global Leaders of Tomorrow Environmental Task Force (Annual Meeting), 2001

Environmental Sustainability Index (Davos: January 2001) at 57, online: Center for

International Earth Science Information Network <http://www.ciesin.org/indicators/ESI/ESI_01a.pdf> (date accessed: 22 January 2002).

40. See, however, Canada, Environmental Protection Expenditures in the Business Sector,

1998 (Ottawa: Statistics Canada, 2001), online: Statistics Canada <http://www.

statcan.ca/english/freepub/16F0006XIE/16F0006XIE98001.pdf> (date accessed:

4 February 2002), which presents operating and capital expenditures made by

primary and manufacturing industries in response to, or in anticipation of, environmental regulations and conventions.
1.3.2.4 Pest Control Products Act

The federal Pest Control Products Act and related regulations

govern the production and registration of pesticides.41 The legislation

requires that pesticides toxic to plants and animals be registered, conform to certain specified safety standards, and be properly labeled and

packaged before they can be imported, exported or sold.

The Pest Management Regulatory Agency (“PMRA”) was established in 1995 to consolidate federal pest management regulations and

to oversee the Pest Management Information Service, a toll-free national

telephone and e-mail service. It provides information about pest control products and categories and use of pesticides, and it undertakes

research. It also responds to inquiries about the pesticide registration

process in Canada, product labels, safety precautions, possible preventative measures and alternative pest management practices. The PMRA

also maintains a website.42 Information is not provided about non-active

ingredients in pesticides, nor is proprietary or confidential business

information made accessible. In 2000, the PMRA proposed a Formulants

Policy which, if adopted, could provide some information about nonactive ingredients of particular concern.43

In May 2000, the House of Commons Standing Committee on

Environment and Sustainable Development issued a report recommending enhanced public participation and access to information about

pesticides.44 In responding to the report, the government agreed that

“addressing the availability of information for the public and other government departments, and the opportunity for consultation on regulatory decisions is a key area that could benefit from legislative change,”

but stated that until then, existing disclosure restrictions were a legal

limitation to providing greater access to information.45

CANADA 27

41. R.S.C. 1985, c. P-10.

42. The PMRA’s homepage is <http://www.hc-sc.gc.ca/pmra-arla/> (last modified:

22 October 2001). For additional information, see the website of Responsible Pest

Management (http://www.pestinfo.ca> (date accessed: 23 April 2002)), sponsored by the Federation of Canadian Municipalities and Environment Canada.

43. Canada, Pest Management Regulatory Agency, Formulants Policy (29 May 2000),

online: Health Canada <http://www.hc-sc.gc.ca/pmra-arla/english/pdf/pro/

pro2000-04-e.pdf> (date accessed: 18 January 2002).

44. Canada, House of Commons Standing Committee on the Environment and Sustainable Development, Pesticides: Making the Right Choice for the Protection of Health

and the Environment (Ottawa: Queen’s Printer, 2000), online: Parliament of Canada

<http://www.parl.gc.ca/InfoComDoc/36/2/ENVI/Studies/Reports/envi01-e.

html> (date accessed: 22 January 2002).

45. Canada, Government Response to the Report of the House of Commons Standing Committee on the Environment and Sustainable Development, Pesticides: Making the Right
Draft legislation that would replace Pest Control Products Act was

tabled in Parliament by the Minister of Health on 21 March 2002 (“Bill

53”). Bill 53 aims to improve public access to information about pest

control products and public involvement in the regulation of these

products.

Bill 53 provides for a register of pest control products “to be made

available to the public in as convenient a manner as practicable” as well

as an electronic public registry containing information included in the

register and other specified information.

Under Bill 53, persons whose interests and concerns are affected

by the Act can be invited to sit on an advisory council reporting to the

Minister. The Minister must also consult the public whose interests and

concerns are affected by the federal regulatory system before making

certain decisions. Thus, the Minister must publish a consultation statement along with supporting materials, receive and consider written

comments, and summarize comments received in a subsequent decision

statement. The public must be consulted as to policies, guidelines and

codes of practice relating to the regulation of pest control products.

Members of the public can request a special review of a pest control

product and are entitled to be given reasons supporting the Minister’s

decision regarding whether or not to undertake such a review. Members

of the public can file a notice of objection in connection with certain permitting decisions of the Minister and other matters, and the Minister

may then establish a review panel, whose hearings are open to the public. Information submitted to a review panel and review panel reports

must be placed in the register. After receiving a review panel report, the

Minister must make public his or her decision along with reasons therefor and a summary of information considered by the Minister.

Bill-53 provides for the protection of confidential test data and

confidential business information, subject to certain limitations. Thus,

the Minister can grant access to confidential test data to anyone who

requests it provided that confidentiality is maintained and that the information will not be misused. The Bill contains a special definition of confidential business information and gives the Minister the final say

regarding whether information is confidential business information for

the purposes of the Act. Finally, the Bill sets out specific persons and

bodies to whom the Minister can disclose confidential test data and con28 ACCESS TO ENVIRONMENTAL INFORMATION

Choice for the Protection of Health and the Environment (Ottawa: Queen’s Printer,

2000), online: Health Canada <http://www.hc-sc.gc.ca/pmra-arla/english/pdf/

hlawns/hl-GovtResp-e.pdf> (date accessed: 22 January 2002).
fidential business information. Generally, disclosure is allowed for the

purpose of protecting human health, safety or the environment, for the

purpose of honoring agreements with other governments or international organizations (subject to verifying that the recipient can ensure an

equal level of protection of the information), and in order to facilitate the

work of the advisory council and review panels.

1.3.2.5 Official Languages Act

The Official Languages Act requires that much information held by

the federal government be made available in both English and French.46

Federal institutions must ensure that any member of the public can communicate with, and obtain available services in either official language

from, its head or central offices located in the National Capital Region, or

elsewhere in Canada where there is significant demand.

1.3.3 Access to Information Concerning Federal Judicial Proceedings

Laws constituting the Federal Court of Canada and the Supreme

Court of Canada state that these courts are to be open to the public and

that court documents are to be available to the public. The Criminal Code

of Canada provides that criminal proceedings are to be in open court

unless the court directs otherwise in the interests of public morals, the

maintenance of public order or the proper administration of justice. In

the Federal Court, any person may, subject to appropriate supervision

and when the facilities of the Court permit, inspect any Court file and

obtain a copy on payment of a fee at the rate of $0.40 per page. Rules

relating to pre-trial production of documents and discovery of witnesses, as well as cross-examination of witnesses at trial, enable litigants

to obtain information from other parties to the case. Decisions of both the

Federal Court and the Supreme Court of Canada are available on the

Internet in both official languages. Once a case is closed, Court documents are deposited at the National Archives and are available for access

by the public.

1.4 Overview of Provincial Access Legislation, Policies and

Practice

Once the Prince Edward Island Freedom of Information and Protection of Privacy Act comes into force,47 all Canadian provinces will have

CANADA 29

46. R.S.C. 1985, c. 31 (4th Supp.).

47. It received Royal Assent on 15 May 2001, and was expected to come into force

within a year.
laws similar to the AIA (see above, Section 1.3.1). As with the AIA, these

laws give the public the right to access government-held information

subject to a number of exclusions and exemptions that are broadly similar to those under the federal legislation.

Alberta, British Columbia, Ontario and Saskatchewan have information commissioners with an independent watchdog function similar

to the federal Information Commissioner, while in Quebec there is a

five-member Access to Information Commission (Commission de l’accès

à l’information). In Manitoba and New Brunswick the provincial

ombudsman is responsible for access to information complaints. In

Newfoundland, the reviewing officer is a judge of the Supreme Court of

Newfoundland, while in Nova Scotia, the reviewing officer is either

appointed by Cabinet or is a judge of the Supreme Court.

Ontario and Saskatchewan have separate statutes governing

access to information held by municipal governments, while other provinces, such as British Columbia and more recently, Manitoba, include a

right to access information held by municipal governments in the statute

that applies to the provincial government.

Most provincial access to information laws grant “any person” a

right to access government-held information. Local residency or other

connections with the province do not appear to be required. Newfoundland, however, limits access to Canadian citizens and landed immigrants. The statute does not appear to preclude the use of agents who are

Canadian citizens or landed immigrants to request the desired information. The British Columbia Freedom of Information and Protection of Privacy

Act is discussed in detail below as an example of a well-developed

provincial access to information regime.

1.4.1 Freedom of Information and Protection of Privacy Act

(British Columbia)

Legal Right of Access to Information

Enacted in 1992, the British Columbia Freedom of Information and Protection of Privacy Act (“FOIPPA”) is similar to the AIA in that it grants a

broad right of access subject to limited exceptions.48

30 ACCESS TO ENVIRONMENTAL INFORMATION

48. R.S.B.C. 1996, c. 165.
As with the AIA, FOIPPA requires an applicant to make a written

request to the public body that the applicant believes has custody or control of a record. The head of a public body must make every reasonable

effort to provide assistance to applicants and respond to each request

without delay, openly, accurately and completely. The Minister is

required to publish a directory of records held by provincial public bodies to assist the public in identifying and locating records.49 Like the AIA,

FOIPPA requires a public body to create a record from a computer file as

long as it can be created from a machine readable record, involves normal computer hardware and expertise, and doing so will not unreasonably interfere with its operations.

Public bodies must supply requested information without delay

and not later than 30 days after the request is received. Extensions of this

deadline are limited to specific situations and to an additional 30-day

period, unless a longer period is approved by the Information and Privacy Commissioner. The Commissioner is an officer of the provincial

legislature with responsibility for monitoring the administration of

FOIPPA and conducting investigations and audits to ensure compliance.

Cabinet confidences are excepted50 under FOIPPA but are not

excluded as under the AIA. A public body cannot refuse to disclose such

records if they have been in existence for 15 or more years and must disclose information in the record of a Cabinet decision on an appeal under

an act, as well as background documents if the decision to which they

relate has been made public or implemented, or if five years have passed

since the decision was made or considered.

There are discretionary exceptions for policy and legal advice, personal information, information relating to intergovernmental relations

or negotiations, the financial or economic interests of public bodies, and

business interests of third parties. Public bodies are also permitted to

refuse to disclose information whose disclosure could reasonably be

expected to result in damage to or interference with the conservation of

natural or heritage sites or of endangered or rare species of animals and

plants.

CANADA 31

49. This directory was Internet accessible but is no longer available online: Office of

the Information and Privacy Commissioner for British Columbia <http://www.

oipcbc.org/site_list.html> (date accessed: 28 January 2002).

50. An “exception” under the B.C. legislation is like an “exemption” under the AIA: in

both cases, the government body can decide to deny disclosure, but the applicant

can ask for a review of that decision by the information commissioner.
Unlike the AIA, FOIPPA allows the public interest to override all

exceptions.51 Disclosure is required where there is a risk of significant

harm to the environment or to the health or safety of the public or a

group, or where disclosure of the information would clearly be in the

public interest.

In 1997, a Special Committee of the Legislature was established to

review FOIPPA. In July 1999, it made eighteen recommendations for

improving the Act. To date, only two have been addressed. These relate

to updating FOIPPA to cover officials and public bodies established

since the Act’s introduction.52

Access Policies

British Columbia government policy on access to information is

outlined in a Policy and Procedures Manual, available on the Internet,

which is updated as changes are made. The manual states that the Act

should not “limit in any way” the routine release of information and that

a formal freedom of information request should be a last resort when the

applicant has been unable to access records through routine avenues.53

The Commissioner has published a series of guides on different topics

such as the appeals process and has begun to publish a quarterly newsletter as well. These are available on the Internet.

Ease of Access

The Special Committee report indicates that contrary to the government’s intent, informal access to information has decreased since the

introduction of FOIPPA. The Commissioner’s 1999-2000 annual report

addressed this issue, strongly urging public bodies to routinely release

as much information as possible, ideally using the Internet, in order to

advance the Act’s goals of openness and accountability while reducing

the cost of compliance. Only excepted information should be withheld.

32 ACCESS TO ENVIRONMENTAL INFORMATION

51. Under the AIA, the public interest override only applies to disclosure of thirdparty information that is confidential or whose disclosure could have financial consequences for, prejudice the competitive position of, or interfere with contractual

or other negotiations of a third party.

52. British Columbia, Special Committee to Review the Freedom of Information & Protection of Privacy Act, Report (3rd session, 36th Parliament) (15 July 1999) [hereinafter

“Special Committee”], online: British Columbia Legislature <http://www.legis.

gov.bc.ca/cmt/36thParl/foi/1999/review_act.htm> (date accessed: 18 January

2002).

53. British Columbia, Ministry of Management Services, Policy and Procedures Manual,

online: British Columbia Ministry of Management Services <http://www.mser.

gov.bc.ca/FOI_POP/manual/ToC.htm> (last modified: 22 November 2001).
Timeliness

Serious delays in response time have been reported by environmental groups, the Commissioner and the Special Committee.

Responses frequently take as long as four to six months, and even up to a

year. The problem seems to be caused by increased demand coupled

with cutbacks to freedom of information program budgets. There is also

concern that requests dealing with sensitive issues and those made by

environmental groups or the media are taking longer to process.

The Commissioner’s 1999-2000 Annual Report remarks on the

delay problem, stating that “access delayed is access denied.”54 The

Commissioner has warned that “the delays we are finding with some

public bodies threaten to become a systemic barrier to the right of

access.”55 The Special Committee recommended waiving fees when

response timelines are not met, but to date there has been no government response to this proposal.

Affordability

A schedule to the FOIPPA lists maximum search and copying fees.

Public bodies may charge less than the maximum fee or charge no fee at

all. The first three hours of a search are free. Maximum searching fees

are $7.50 per quarter-hour thereafter. The maximum fee for copies of

printed material is $0.25/page. Computer diskettes are $10 each.

In response to a request filed by an environmental group in 1996

for access to geographic information system (“GIS”) forest data, the British Columbia government proposed to charge $600 per file, or $30,000

total.56 Applicants applied for relief to the Commissioner on the ground

that the price charged by the government blocked access to information

CANADA 33

54. British Columbia, 1999-2000 Annual Report of the Information and Privacy Commissioner for British Columbia at 13, online: Office of the Information and Privacy

Commissioner for British Columbia <http://www.oipcbc.org/publications/

annual/oipcbc_annual_report_99-2000.pdf> (date accessed 23 January 2002).

55. British Columbia, 2000 Annual Report of the Information and Privacy Commissioner for

British Columbia at 8, online: Office of the Information and Privacy Commissioner

for British Columbia <http://www.oipcbc.org/publications/annual/oipcbcannual_report2000.pdf> (date accessed: 2 April 2002).

56. Office of the Information and Privacy Commissioner for British Columbia, Inquiry

re: A decision by the Ministry of Environment, Lands and Parks to withhold Digital Map

Data from the Western Canada Wilderness Committee, Order No. 91-1996 (11 March

1996); online: Office of the Information and Privacy Commissioner for British

Columbia <http://www.oipcbc.org/orders/Order91.html> (date accessed: 18

January 2002).
required for environmental and First Nations groups to participate

effectively in land use negotiations with government and industry.

The Commissioner found that the government’s decision was lawful but unfair. He urged the government to consider implementing a

two-tiered pricing system that would charge non-profit groups lower

fees in recognition of the public interest nature of their work. According

to one environmental group, the government has continued to charge

high fees and to otherwise restrict access to this type of data. The group

has been given access to GIS and other digital data through a mediated

process overseen by the Commissioner, but not all data requested has

been made available.

Despite this important, unresolved issue, the Special Committee

concluded that the existing fee structure strikes a good balance between

public access rights and administrative cost recovery and recommended

no changes.

1.4.2 Drinking Water Protection Legislation

In April 2001, British Columbia enacted the Drinking Water Protection Act,57 requiring public notice of threats to drinking water and the

publication of water suppliers’ emergency response and contingency

plans and drinking water monitoring results. The Ontario government

also enacted new public drinking water information requirements in

August 2000 as part of its new Drinking Water Protection Regulation.58

Measures such as these address an important gap in past practices.

1.4.3 Access to Information Concerning Provincial Judicial

Proceedings

Court hearings are normally open to the public unless a court

orders the public to be excluded because of a risk of serious harm or

injustice to any person. Most provinces prohibit photography, video and

audio recordings, as well as live coverage of court proceedings, except in

limited circumstances as ordered by the court. The Supreme Court

of Canada recently decided that it will hear an appeal from British

Columbia television stations alleging that the British Columbia Supreme

Court’s policy against allowing television coverage of court proceedings

34 ACCESS TO ENVIRONMENTAL INFORMATION

57. S.B.C. 2001, c. 9.

58. Ont. Reg. 459/00.
is unconstitutional as violating freedom of expression guaranteed by the

Charter.59

In Ontario, on payment of prescribed fees, a person is entitled to

see and obtain a copy of any document filed in a court proceeding unless

a law or an order of the court provides otherwise.60 However, a court can

order that any document filed in a civil proceeding before it be treated as

confidential, sealed and not form part of the public record.61

2. ENVIRONMENTAL ASSESSMENTS OF PROPOSED

PROJECTS

2.1 Introduction

This section offers a brief overview of laws, policies and practices

that govern public access to environmental assessment information. We

will review CEAA (see Section 1.3.2.2, above) and the Alberta Environmental Protection and Enhancement Act (“EPEA”).62

2.2 Federal

Legal Right of Access to Information

CEAA came into force in January 1995. It is administered by the

Canadian Environmental Assessment Agency (“Agency”). The federal

Minister of Environment must report annually to Parliament on the

activities of the Agency and the administration and implementation of

the Act. The report must contain a statistical summary of all environmental assessments conducted or completed under the authority of the

Act during that year. The Minister must also review the Act’s provisions

and operation within five years of its coming into force. A review was

conducted in 2000 and proposed amendments to the Act were tabled in

Parliament in early 2001.63 Proposed amendments relevant to access to

environmental information are summarised below, after a description

of the current rules under the Act.

CANADA 35

59. BCTV v. R., leave to appeal to the Supreme Court of Canada granted 17 January

2002, Supreme Court of Canada Docket No. 28823. See also R. v. Pilarinos and Clark,

[2001] B.C.S.C. 1332.

60. Courts of Justice Act, R.S.O. 1990, c. C-43, Part 7–“Public Access”, s. 137(1) and (4).

61. Ibid. at s. 137(2).

62. S.A. 1992, c. E-13.3.

63. Bill C-19, An Act to Amend the Canadian Environmental Assessment Act, 1st Sess.,

37th Parliament, 2001 [hereinafter “Bill C-19”], online: Canadian Environmental

Assessment Agency <http://www.ceaa.gc.ca/0007/0001/bill_e.htm> (last modified: 1 September 2001).
CEAA governs environmental assessment of projects involving

the federal government. CEAA is “triggered” when an initiative falls

within the definition of “project” under the Act and the project, for

example, requires the exercise of a federal regulatory power (such as

issuing an authorization), is being carried out by a federal authority, is

located on federal land, or is financed with federal funds. Depending on

the nature of the project, it will be subject to either a screening or a more

comprehensive type of assessment. All assessments must consider comments received from the public. Under the Act, the federal agency or

department most closely associated with the project is the “responsible

authority” and it must ensure that the requirements of the Act are met.

Since there are as many potential “responsible authorities” as there are

federal government bodies subject to the Act, administration of CEAA

has been inconsistent, including as regards provision of information to

the public.64

The Preamble of the Act states that the government is committed to

facilitating public participation in the environmental assessment of projects and providing access to the information on which environmental

assessments are based. The Act requires that a public registry of relevant

records be established for each project and prescribes notice and comment procedures aimed at incorporating the concerns of the public into

the assessment process.

Registries must be established and operated in a manner to ensure

convenient public access. They must be open to the public throughout

the duration of the assessment. The requirement that public access to the

registries be “convenient” means that access to documents via a registry

should, in principle, be preferable to using the AIA.65

The Act prescribes that registries must contain all records produced, collected or submitted with respect to the environmental assessment, including records that have otherwise been made available to the

public, records that have been requested through the AIA and are subject to disclosure under that act,66 and records that the responsible

authority believes on reasonable grounds would be in the public interest

to disclose because they are required in order for the public to participate

36 ACCESS TO ENVIRONMENTAL INFORMATION

64. See Five-year Review Team, Canadian Environmental Assessment Agency, “Background Study on the Public Registry and Federal Environmental Assessment

Index (Final Report)” by T. Shillington (31 March 1999); online: Canadian Environmental Assessment Agency <http://www.ceaa.gc.ca/0007/0002/0002/ bkstd11_

e.htm> (last modified: 1 September 2001).

65. The operation of registries in practice is discussed below, under Ease of Access.

66. Including through application of the public interest override for third-party information found at s. 20(6) of the AIA; see above, Section 1.3.1.
effectively in an assessment, except for records containing third-party

information. Records proposed for inclusion in a public registry are

normally “cleared” through the AIA to ensure that no exempted or

excluded information is disclosed.67

Notice and comment procedures are prescribed for each type of

assessment. In a screening, when a responsible authority is of the opinion that public participation would be appropriate under the circumstances, it must give the public notice and an opportunity to examine

and comment on screening reports and on any record that has been filed in

the public registry [emphasis added] before taking a course of action.68

The Agency is also required to notify the public of comprehensive studies and provide an opportunity to examine and comment on comprehensive study reports and supporting documents. In a panel review, the

panel is required to ensure that the information it reviews is made available to the public and it must hold its hearings in public so long as no

harm is likely to come to a witness as a result of the disclosure of information in a public hearing. The Minister of the Environment must make

a report from a panel review or a mediator available to the public and

must advise the public that the report is available. Finally, the Minister is

required to provide reasonable public notice of, and a reasonable opportunity for anyone to comment on, draft guidelines, codes of practice,

criteria or orders respecting the application of CEAA or draft federal-provincial or international agreements or arrangements respecting

environmental assessments.

Bill C-19 would change the nature of the CEAA registry system in

several respects. Notably, project-based registries would be replaced by

an electronic registry to be maintained by the Agency, and the length of

time documents would be posted on the registry would be at the

Agency’s discretion. Most important, though, the description of the

information that must be posted on the registry would change significantly.

First, the public interest test mentioned above would be eliminated. Instead, the responsible authority or the Agency (in the case of a

comprehensive study or panel review) could post information it considCANADA 37

67. For a description of information excluded and exempted from disclosure under the

AIA, see Section 1.3.1, above, and Section 7, below.

68. See Canadian Environmental Assessment Agency, “Review of the Canadian Environmental Assessment Act–A Discussion Paper for Public Consultation” (December

1999), s. 2(5)–“Summary of Environmental Assessments”, online: Canadian Environmental Assessment Agency <http://www.ceaa.gc.ca/0007/0002/0001/

index_e.htm> (last modified: 1 September 2001).
ers “appropriate.” No criteria of “appropriateness” are provided. Second, while Bill C-19 contains a long list of documents that must be

posted on the registry,69 the umbrella phrase “all records produced, collected or submitted with respect to the environmental assessment” currently found in the Act is dropped.70 Removal of this catchall risks

narrowing the scope of disclosure. At least one environmental group has

urged that the registry provisions of the Act not be amended, or that provisions for an electronic registry be added to already existing provisions

in the Act.71

Bill C-19 would also modify notice and comment procedures prescribed for the different types of assessments. Under Bill C-19, the

requirement to give the public notice of a screening or comprehensive

study would be dropped. Without the notice requirement, it is not clear

how the public would become aware that it has an opportunity to comment. In the case of a screening, the public would no longer be able to

comment on any document other than the screening report, but the

responsible authority would have discretion to offer opportunities to

comment at any stage of the screening. Regarding panel reviews, Bill

C-19 would add a criterion for barring disclosure of information in a

public hearing: the panel could order a hearing closed if disclosure of

information were likely to result in “specific harm to the environment.”

Access Policies

The principal policy document setting out the Agency’s interpretation of the requirements of CEAA is the Canadian Environmental Assessment Act Procedural Manual (“Manual”), a set of reference materials

designed to provide guidance on the application of CEAA to federal

government departments and agencies, provincial and municipal governments, private sector proponents of projects requiring federal funding or decisions, and members of the public interested in environmental

assessment. The Manual contains a Responsible Authorities Guide that

instructs responsible authorities on their duties under the Act. It contains several reference guides, including a guide on the public registry

system (“Registry Guide”). These are available on the Agency’s website.72

38 ACCESS TO ENVIRONMENTAL INFORMATION

69. The current list contains six items while Bill C-19 contains eighteen items.

70. Compare s. 55(3) of CEAA and proposed s. 55(2) contained in cl. 26 of Bill C-19.

71. M. Kostuch, “Bill C-19: An Act to amend the Canadian Environmental Assessment Act”

(Submission to the House of Commons Standing Committee on the Environment

and Sustainable Development, 6 January 2002).

72. <http:// www.ceaa.gc.ca> (date accessed: 24 January 2002).
Ease of Access

Access to environmental assessment and related information is

hampered by the nature and operation of the CEAA registry system and

by budgetary constraints limiting the number and training of government personnel responsible for managing the registries.

A 1999 independent review of responsible authorities’ public registry operations, part of the five-year review of CEAA, found wide disparities in compliance with registry requirements. Some departments

list information in centralized databases while others only create document lists upon request. The authors of the study encountered divergent

views within government regarding whether the registries should serve

to foster public participation in environmental assessment or whether

they simply serve to provide information on request.

Departments reported very low public interest in the registries, but

those responsible for the independent review remarked that judging by

the number of visits to the Agency’s Federal Environmental Assessment

Index (“FEAI”) website, there seems to be significant public interest in

information surrounding environmental assessments. They concluded

that there is insufficient data to determine whether the failure of the public to use the registries results from lack of public interest, lack of awareness, or lack of ability to access the registries.73 They suspect there is a

connection between government’s failure to publicize the registries and

the public’s failure to use them.

The authors note that many responsible authorities are not clear on

the difference between the registries and FEAI. FEAI was designed by

the Agency to act as a window for the public to obtain summary information on all pending assessments. The public is expected to seek additional information from the individual responsible authorities. Because

the FEAI system is voluntary, not all responsible authorities are represented. Some prefer to use their own websites to list project information

because of cumbersome procedures associated with transferring information to the FEAI. Others feel that posting summary information on

the FEIA fulfills their registry obligations. In addition to being incomplete, FEAI is reported to contain out-of-date information. Lack of

sufficient and timely information makes it difficult for the public to

determine whether it is worth attempting to obtain access to a document.

CANADA 39

73. Supra, note 58 at s. 9.3.
Timeliness

The Registry Guide encourages responsible authorities to provide

access to requested documents within ten days of the request or, under

certain circumstances, within thirty days. If processing the request will

take more than thirty days, the extension must be authorized by the

applicant. Priority is given to persons wanting to participate in a formal

public participation process under the Act.

Affordability

Fees are $0.20 a page for hardcopy, $0.40 per microfiche and $10.00

per computer diskette. Where the total fee is $25.00 or less, the fee is

waived. Documents prepared for the purpose of consulting with the

public during a consultation period are provided free of charge.

2.3 Provincial (Alberta)

Legal Right of Access to Information

The Environmental Protection and Enhancement Act (“EPEA”) governs environmental assessment of projects falling under provincial legislative jurisdiction in Alberta. EPEA requires that the Director, an

official designated by the Department of Environment, establish and

maintain a register containing documents and other information provided to or issued by the Director in the context of an environmental

assessment. This requirement is consistent with Alberta’s Freedom of

Information and Protection of Privacy Act, which gives the public the right

to access Head of Public Body documents without having to make an

access request. The EPEA Environmental Assessment Regulation (“Regulation”) lists documents and information that must be included in the register.74

The Regulation requires the publication of newspaper notices at

various stages of an environmental assessment and allows members of

the public to register their concerns and thereafter receive direct notice

of decisions related to the assessment. Proponents must publish a notice

in a newspaper approved by the Director informing the public of the

proposed project and of the proposed terms of reference for the environmental impact assessment. The notice must indicate where the docu40 ACCESS TO ENVIRONMENTAL INFORMATION

74. Alta. Reg. 112/93.
ment may be inspected and state that persons wishing to provide

written comments on the proposed terms of reference may provide them

to the Director.75 Proponents must make proposed terms of reference

available for inspection during business hours, and must also provide a

copy to any person who requests it.

Ease of Access

Under the Regulation, people can examine any information or document contained in the register during normal business hours. The Regulation does not prescribe the format of the register.76 Standard practice

is to enter environmental assessment information into an electronic

database located at the Department of Environmental Protection’s

Edmonton office but not accessible online. Alberta Environment’s

website contains a summary of the register and links to websites of

project proponents.

The EPEA Disclosure of Information Regulation stipulates that

requests for information must be made “in a form acceptable to the

Director” and must contain the name, mailing address and telephone

number of the person making the request and the details of the document or information requested. If the Director is of the opinion that the

document or information has already been provided to a group, organization, association or other body of which the person is a member or

with which the person is otherwise affiliated, the Director may refuse to

grant access.

Timeliness

Under the Disclosure of Information Regulation, access and copies

must be provided “within a reasonable time after a request in writing.”

CANADA 41

75. In Quebec, the Environment Quality Act, R.S.Q., c. Q-2 (“EQA”) requires that environmental impact assessment statements be made public and requires project

proponents to trigger a public information and consultation process in which persons, groups and municipalities can request a public hearing in connection with the

project before a commission appointed by the Bureau d’audiences publiques sur

l’environnement. Requests for a hearing must be granted unless they are frivolous.

The Bureau reports on its findings to the Minister. The Government is not bound by

the recommendations of the Bureau in deciding whether to authorize a project (see

Division IV.1 of the EQA and Division IV of the Regulation respecting environmental

impact assessment and review, R.R.Q., c. Q-2, r. 9).

76. The Minister has discretion to disclose information in any form and manner the

Minister considers appropriate; s. 2.1 of the Disclosure of Information Regulation

(Alta. Reg. 116/93).
Affordability

Under the Regulation and subject to the Disclosure of Information

Regulation, a person may obtain one copy of any document contained in

the register free of charge. Environmental impact assessment reports are

available from proponents free of charge.

Canada-Alberta Agreement for Environmental Assessment

Cooperation

The governments of Canada and Alberta have entered into an

agreement to harmonize the conduct of environmental assessments that

are subject to both CEAA and EPEA.77 This agreement does not provide

for merging the registries of the two jurisdictions. It states that the

Parties will maintain public registries in accordance with the requirements of their respective legislation.

3. LICENSES OR PERMITS FOR PROPOSED PROJECTS

3.1 Introduction

Instruments by which the government authorizes individuals or

corporations to carry on activities that can or do have environmental

impacts are a valuable source of environmental information. Materials

filed in support of permit applications often contain detailed information about industrial facilities, manufacturing processes and environmental risks associated with the applicant’s activities. Under certain

statutes, the public is given an opportunity to access these materials and

submit comments that a permitting authority must take into account in

deciding whether to grant or renew a permit. The permits themselves

often contain specific environmental conditions that are used to regulate

the permit-holder’s behavior much in the same way as a regulation.

When added to other publicly-accessible information, access to permit

information helps the public determine whether a facility is in compliance and whether the government is effectively enforcing applicable

environmental laws.

42 ACCESS TO ENVIRONMENTAL INFORMATION

77. The Canada-Alberta Agreement for Environmental Assessment Cooperation was finalized in June 1999; online: Canadian Environmental Assessment Agency <http://

www.ceaa.gc.ca/0009/0001/0003/0001/0001/alta_agr_e.htm> (last modified: 1

September 2001). British Columbia, Saskatchewan and Manitoba have entered into

similar agreements with the federal government.
In this section we review public rights to access permit information

under several federal statutes as well as under the Ontario Environmental

Bill of Rights (“EBR”).78

3.2 Federal

Legal Right of Access to Information

The principal federal statute giving the public the right to access

environmental information for the purpose of influencing the permitting process is CEAA (see above, Section 2.2). CEAA’s Law List Regulations enumerate some 190 approval powers granted to federal

authorities under statutes related to subjects such as fisheries, navigable

waters, the Yukon and Northwest Territories, Indian reserves, nuclear

facilities, oil and gas pipelines, national parks, migratory birds, and railways.79 Before exercising one of these powers, a federal authority must

clear the project through CEAA, which includes making information

about the project available to the public through the CEAA registry system (see above, Section 2.2).

Other federal acts also allow the public to participate in permitting

decisions affecting natural resources. For example, under the Northwest

Territories Waters Act, the Northwest Territories Water Board is required

to hold public hearings with respect to certain types of license applications and has discretion to hold hearings for others.80 The Board must

give notice of license applications and public hearings in newspapers

and the Canada Gazette. The Board is also required to maintain a public

register containing prescribed information relating to each license. The

Act requires that the public register be open for inspection by any person

upon payment of a fee during the Board’s normal business hours.

Under the National Energy Board Act, the National Energy Board

(“NEB”) must hold public hearings before issuing a natural gas export

license.81 Regulations under the Act list detailed public information

requirements. Although CEAA is not triggered by export license applications, the NEB has determined that it has authority to examine environmental effects associated with natural gas export projects.82 The

NEB’s Rules of Practice and Procedure contain detailed notice and comCANADA 43

78. Environmental Bill of Rights, 1993, S.O. 1993, c. 28.

79. SOR/94-636.

80. S.C. 1992, c. 39.

81. R.S.C. 1985, c. N-7.

82. CEAA is triggered by other applications under the Act, including applications to

divert or relocate a pipeline, abandon an operation, build over other utility lines,

and build facilities across pipelines.
ment provisions.83 Notices of pending hearings are published in newspapers with wide distribution. Members of the public are entitled to

intervene as parties to a hearing, subject to the NEB’s discretion. The

NEB generally requires license applicants to provide copies of all documents to interveners as they are produced. The Board must submit an

annual report on its activities to Parliament.

Regarding access to information about permits that have already

been issued, the principal federal statute is the AIA (see above, Section

1.3.1).

Part II of CEPA (see above, Section 1.3.2.3), entitled “Public Participation,” requires the establishment of an Environmental Registry to

facilitate access to documents relating to matters under the Act, including notice of any approval granted under the Act. Disclosure of documents on the Registry is subject to the AIA. The Minister is given

discretion regarding the form of the Registry, how it is to be kept and

how access is provided.84 The Minister and any person acting on behalf

of or under the direction of the Minister are given immunity from criminal and civil suits for disclosure of information in the Registry in good

faith or any consequences of such disclosure.

Access Policies

The Northwest Territories Water Board has developed several policies and practices to facilitate access to information related to license

applications. Applications and associated documents and transcripts of

Board hearings are available at the Board’s Yellowknife head office.

Notice of applications for certain types of licenses for projects outside

the Yellowknife area is provided in local newspapers, while local aboriginal or public interest organizations are notified by letter. Further, key

documents are translated into local aboriginal languages.

The NEB’s Guidelines for Filing Requirements require early public

notification of licence applications.85 License applicants must implement a public information program explaining the proposed project and

its potential environmental and social effects, and must allow adequate

time for public comment and response thereto. This program must be

described in the license application submitted to the NEB.

44 ACCESS TO ENVIRONMENTAL INFORMATION

83. SOR/95-208.

84. The Registry can be accessed at: <http://www.ec.gc.ca/CEPARegistry/default.

cfm> (date accessed: 23 March 2002).

85. (22 February 1995), online: National Energy Board <http://www.neb-one.gc.ca/

pubs/gdfilreq.htm#Part II> (date accessed: 18 January 2002).
Ease of Access

A key barrier to access to information held by the Northwest Territories Water Board is the fact that it serves a small population scattered

over a very large expanse of land. As noted above under Access Policies,

the Board has undertaken several measures to improve access.

The quasi-judicial nature of the NEB means that information generally flows through formal channels. The NEB encourages interveners

to consider being represented by lawyers and in practice, most are. Lawyers help to obtain copies of relevant information and interpret it for the

benefit of their clients, but their involvement makes the process expensive. In addition, the amount of information routinely sent to interveners

by project applicants can be overwhelming.

Timeliness

The Northwest Territories Water Board publishes a newspaper

notice of a water license application within one to two weeks of receipt of

the application. Delays associated with providing public access to information about applications are minimal. Before the NEB, project applicants have every interest in providing timely information to interveners

and so timeliness is normally not an issue.

Affordability

The Northwest Territories Water Board charges no fees for providing access to water license applications or related environmental information but there is a charge for photocopying.

The NEB lacks the authority to award costs against a license

applicant, so interveners participate in hearings at their own expense.

However, interveners receive information related to export license

applications from the project proponent and the NEB at no charge.

3.3 Provincial (Ontario)

Legal Right of Access to Information

Proclaimed in 1994, the Environmental Bill of Rights(“EBR”) has the

effect of, among other things, expanding the public’s right to access

information relating to permitting decisions of most ministries in the

Ontario government.

CANADA 45
The EBR sets out minimum levels of public participation that must

be met before thirteen prescribed ministries of the Ontario government

make policy or permitting decisions or adopt new legislation or regulations. “Instruments”86 are classified by regulation and this classification

determines the required level of notice and public participation.

A minister is required to do everything in his or her power to give

public notice of an instrument application under consideration in his or

her ministry at least thirty days before making a decision. Notice is given

online on the Environmental Registry established under the EBR and

through other appropriate means.87 In emergencies, decisions can be

made without notice if waiting would result in danger to the health and

safety of any person, harm or serious risk of harm to the environment, or

injury or damage or the serious risk of injury or damage to any property.

Notice must then be given as soon as reasonably possible thereafter.

Any Ontario resident has the right to appeal permit decisions

issued by the primary regulatory ministries.88 Any two Ontario

residents may apply to the Environmental Commissioner of Ontario

(“ECO”) for a review of a permitting decision by the appropriate minister.

The ECO was established under the EBR as an officer of the Legislative Assembly. The ECO’s role is to oversee implementation of and

compliance with the EBR. The ECO reports on ministerial compliance in

placing notices on the Environmental Registry, reviews use of the Registry by the public and reviews the exercise of ministers’ discretion under

the EBR. The ECO is required to report annually to the Speaker of the

Legislative Assembly and can, of his or her own initiative, submit special

reports to the Speaker. The Assembly can direct the ECO to perform special assignments as well. To date, there have been six annual reports,

four special reports, and no special assignments.

46 ACCESS TO ENVIRONMENTAL INFORMATION

86. An “instrument” means any document of legal effect issued under an act, including permits, licenses, approvals, authorizations, directions and orders, but not

including regulations (see s. 1(1) of the EBR). Regulations made under the EBR can

specify that a particular document or class of documents is an “instrument” or a

“regulation” for the purpose of this provision (s. 121(1)(c) of the EBR).

87. See also s. 118.5 of the Quebec Environment Quality Act, R.S.Q., c. Q-2, concerning

the requirement for the Quebec Minister of the Environment to establish a register

of permit applications, permits, environmental impact statements, etc. Section

118.5 states that the information contained in the register is public information.

88. In Quebec, the Environment Quality Act (“EQA”) provides for public notice and

comment in connection with the issuance of “depollution attestations,” a type of

environmental operating permit in which contaminant discharge standards are

set on a facility-by-facility basis, taking into account impacts on the receiving
Access Policies

The Environmental Registry was launched in August 1994 as

an electronic bulletin board, accessible through free dial-up computer

access. Since then, it has undergone a number of technological improvements and in April 1998, it became available through a more userfriendly website interface.89 The most recent improvement was in March

2001, when Registry notices were made available as a single database file

for downloading. This allows users to sort or filter Registry data according to their own needs.

Online help is provided for searching the database, and there is a

published Guide to the Registry along with a range of fact sheets on specific EBR issues called Econotes. There is also a toll-free phone number for

assistance with accessing the Registry or finding particular postings.

Ease of Access

Ease of public access to the Registry was greatly enhanced when it

was moved to the Internet, particularly because users are now linked

directly to further information and the full text of documents related to

postings.

While access to the Environmental Registry has improved over

time, there are still factors that can impede access to information. The

first is that the usefulness of the Registry is dependent on the quality of

postings. Postings have become more user-friendly over time, but permit applications continue in many cases to be unclear, to contain too

much or too little information or to be too technical. Every year, the

ECO’s annual report reiterates the need for postings to contain relevant,

well-organized information in plain language, with clear explanations

of technical terminology, contact information, and direct links to further

information on the Internet where available. Several annual reports

have included examples of understandable descriptions.

CANADA 47

environment. So far, facilities in the pulp and paper, mineral, and primary metal

transformation industries are required to apply for such attestations, with more

industries to be added by government decree over time. The EQA does not give the

public the right to appeal a decision to issue such an attestation, but when the

Minister refuses to issue, amends, suspends or revokes an attestation and the proponent appeals to the Administrative Tribunal of Québec, any person, group or

municipality may intervene before the Tribunal (ss. 31.20, 31.21, 96, and 98.1-100 of

the EQA).

89. The Environmental Registry homepage is at <http://www.ene.gov.on.ca/envision/env_reg/er/registry.htm> (date accessed: 22 January 2002).
In 2001, the ECO published a special report criticizing the Ontario

Ministry of Natural Resources for failing to classify its instruments as

required by the EBR.90 Because the instruments were not classified, they

were not subject to comment, review and appeal rights under the EBR.

The Ministry of Natural Resources subsequently addressed this issue by

promulgating Ontario Regulation 261/01, which came into force on 1

September 2001.

One obstacle to improving the operation of the Registry has been

that while the ECO receives user feedback on its operation, the Registry

is managed by the Ministry of the Environment.

Timeliness

The EBR minimum 30-day comment period for proposed instruments has been criticized as being too short for informed comment

to occur in many cases. The ECO has complained that ministries are

ignoring the spirit of the EBR by only granting the minimum comment

period even when the circumstances surrounding a particular instrument application call for a much longer comment period.

Sometimes ministries require the public to file access to information requests to obtain copies of materials filed in support of instrument

applications. Since access legislation gives the ministry thirty days to

respond to a request, the public often has little or no time to review the

information before the expiry of the thirty-day EBR comment period.

The Information and Privacy Commissioner of Ontario has called this

practice inappropriate.91 In the past, the Ministry of the Environment

indicated that it was developing a policy on this matter, but none has

been published and the problem continues.92

Ministries are often late in posting decision notices on the Registry.

For example, the Ministry of the Environment once waited one-and48 ACCESS TO ENVIRONMENTAL INFORMATION

90. Ontario, Broken Promises: MNR’s Failure to Safeguard Environmental Rights (Special

Report to the Legislative Assembly of Ontario, submitted by Gord Miller, Environmental Commissioner of Ontario, 21 June 2001), online: Environmental

Commissioner of Ontario <http://www.eco.on.ca/english/publicat/sp04.pdf>

(date accessed: 18 January 2002).

91. Information and Privacy Commissioner of Ontario, Order PO-1688 / Appeal PA980244-1 / Ministry of the Environment (16 June 1999) at 27, online: Information

and Privacy Commissioner of Ontario <http://www.ipc.on.ca/english/orders/

orders-p/po-1688.htm> (date accessed: 18 January 2002).

92. D. McRobert, “The Nuts and Bolts and the Rest of the Machinery” (Insight Publications, 2001).
a-half years before making a controversial permitting decision public.

Late notification compromises the public’s right of appeal.93

Affordability

It is Ontario Government policy to provide free access to the

Environmental Registry for residents of Ontario. The Registry can be

accessed on the Internet. Free Internet access is now available in almost

all public libraries.

4. PROPOSED REGULATIONS, POLICIES, PROGRAMS

AND PLANS

4.1 Introduction

Legislative and policy instruments as well as government programs and plans can have significant environmental impacts. This is

true not only of environmental laws and programs but also as regards

initiatives in areas such as finance, taxation, health, agriculture and

transport. In this section, we review public rights to access information

used by governments to make decisions about proposed legislation, policies, programs and plans as well as rights to access the drafts of such

documents. We also discuss environmental assessment of such proposals. At the federal level, CEPA (see above, Section 1.3.2.3) and the Commissioner for the Environment and Sustainable Development have

enhanced public access to environmental information. In Ontario, the

EBR (see above, Section 3.3) is meant to give the public access to environmental information underlying policy and law reform.

4.2 Federal

Legal Right of Access to Information

Under the AIA, the public has no right to access confidential information used as the basis for drafting federal legislation and policy documents, nor is it entitled to access drafts of legislation and government

policies (see above, Section 1.3.1).94 Specific statutes do grant such rights,

however.

CANADA 49

93. Having Regard, 2000-2001 Annual Report of the Environmental Commissioner of

Ontario to the Legislative Assembly of Ontario, online: Environmental Commissioner of Ontario <http://www.eco.on.ca/english/publicat/ar2000.pdf> (date

accessed: 18 January 2002).

94. However, this information is subject to disclosure once it has been in existence for

twenty years.
Under CEPA, the Minister is required to publish in the Canada

Gazette a copy of every order or regulation proposed to be made under

the Act, as well as any instrument proposed to be adopted in connection

with the regulation of a toxic substance. Within sixty days after such

publication any person can file comments with the Minister or file a

notice of objection requesting the establishment of a board of review. In

addition, subject to the AIA, the Minister must post copies of all notices

of objection and of every policy and proposed regulation or order on the

Environmental Registry (see above, Section 3.2).

CEPA contains many provisions stating that the Ministershall consult with provincial and aboriginal government representatives and may

consult with industry and the public at large regarding the development

of objectives, standards and guidelines. The right of the public to participate in the formulation of policy instruments is therefore weaker than it

is in the context of regulation- or order-making because the Minister is

not required to accept comments from the public and the public has no

statutory right of appeal from the Minister’s decision.

The Act gives the Minister various information-gathering powers,

including for the purpose of formulating objectives and codes of practice

and issuing guidelines. Persons subject to an information-gathering

notice published in the Canada Gazette can invoke a number of grounds

to have the information kept confidential, but the Minister can override

such a request where the public interest in disclosure outweighs any

prejudice to financial and privacy interests.

To ensure that sustainable development considerations are integrated into the development of federal government programs and plans,

the Auditor General Act was amended in 1995 to create a Commissioner

of the Environment and Sustainable Development (“CESD”).95 The

CESD reports directly to the Auditor General on the success of federal

government departments in implementing their sustainable development strategies. The Auditor General’s role now includes giving due

regard to the environmental effects of expenditures. The introduction of

the CESD increases the profile of environmental indicators relative

to economic indicators as measures of government performance. The

CESD is required to report annually to Parliament on behalf of the Auditor General on the environmental performance of federal government

departments.96

50 ACCESS TO ENVIRONMENTAL INFORMATION

95. R.S.C. 1985, c. A-17.

96. Canada, 1998-2001 Reports of the Commissioner of the Environment and Sustainable

Development to the House of Commons, online: Office of the Auditor General of Canada <http://www.oag-bvg.gc.ca/domino/cesd_cedd.nsf/html/menu3_e.html>

(date accessed: 18 January 2002).
The CESD oversees a little-used process under which federal

departments are required to formally respond to environmental petitions from residents of Canada. The process is meant to result in public

and timely responses to issues of concern. According to the CESD 2001

Report, the process was instrumental in securing a commitment from

Health Canada to reassess the allowable trichloroethylene (“TCE”) limit

in the Canadian Drinking Water Guidelines and from Environment Canada to regulate TCE under CEPA by 2001.97

Access Policies

The federal government’s Regulatory Policy provides that once

Cabinet approval has been secured, draft regulations which might affect

Canada’s obligations under trade agreements should be published in

Part I of the Canada Gazette for several months to allow for public comment prior to being finalized. In practice, other draft regulations may be

published as well, but the requirement to publish them was dropped in a

1999 revision of the Policy.

The Regulatory Policy formerly required a regulatory impact analysis statement (“RIAS”) to be published along with draft regulations.

Public consultation is one part of a RIAS. The RIAS requirement has

been dropped from the Policy but is still found in the 2001 Guide to the

Regulatory Process. It is unclear whether the government intends to stop

doing RIAS for draft regulations.

In practice, federal government departments may undertake public information and consultation exercises prior to drafting regulations

or other documents that will be submitted to Cabinet. Environment Canada lists such consultations on its website in accordance with its policy

statement entitled “Our commitment to effective consultations,” which

sets out Environment Canada’s policy on public participation in the

development and amendment of policies, legislation, programs and services, including through participant funding.98 In December 2001, it

released for public comment a discussion paper and supporting documents regarding the implementation of the “precautionary approach”

in government decision-making.99 The recent CEAA five-year review

CANADA 51

97. Ibid. at Appendix A–Summary of Current Petitions Received or Pending (1 January

2000–15 July 2001), Petition No. 25 filed 11 October 2000 by Sierra Legal Defence

Fund on behalf of the Beckwith Water Contamination Committee.

98. (27 May 1996), online: Environment Canada <http://www.ec.gc.ca/consult/policy_e.html> (last modified: 27 February 2001).

99. Online: <http://www.ec.gc.ca/econom/pp_e.htm> (last modified: 26 November

2001). The precautionary approach recognizes that the absence of full scientific

certainty should not be used as a reason to postpone decisions when not acting

could result in serious or irreversible harm.
process is another example of a public consultation initiative launched

prior to proposing amendments to an act (see Section 2.2, above).

Environmental assessment provides another means for informing

the public about the environmental implications of proposed legislation

and policy instruments. The 1999 Cabinet Directive on the Environmental

Assessment of Policy, Plan and Program Proposals (“Directive”) requires

strategic environmental assessment of proposals whose implementation could result in important environmental effects, either positive or

negative.100 It states that environmental assessment should contribute

on an equal basis with economic or social analysis and that the level of

effort put into the analysis should be proportionate to the significance

of anticipated environmental effects. Public involvement is strongly

encouraged.

In a 1998 audit of an earlier version of the Directive, the CESD

reported widespread noncompliance with the Directive. The CESD’s

2000 Report noted no improvement in compliance despite a 1999 update

of the Directive. Information about assessments, where they are conducted, is rarely made available to the public.101 Two obstacles to compliance with the Directive are a refusal by government departments to

disclose information that is a Cabinet confidence,102 and the absence of a

positive duty on government departments and agencies to promote,

monitor and publicly report on compliance with the Directive.

Since 1997, information about proposed federal regulations must

be included in reports which are filed by each federal agency and department with Parliament every spring regarding its plans and priorities.

Results of regulatory initiatives are published in annual departmental

performance reports released in the fall of each year.103

52 ACCESS TO ENVIRONMENTAL INFORMATION

100. Canadian Environmental Assessment Agency (1999), online: Canadian Environmental Assessment Agency <http://www.ceaa.gc.ca/0011/0002/dir_e.htm> (last

modified: 1 September 2001). See also Guidelines for Implementing the Cabinet Directive (2000), online: Canadian Environmental Assessment Agency <http://www.

ceaa.gc.ca/0011/0002/dir_e.htm> (last modified: 1st September 2001).

101. See CESD Reports to Parliament (1998) c. 6 and (2000) c. 9, online: Office of the Auditor General of Canada <http://www.oag-bvg.gc.ca/domino/cesd_cedd.nsf/

html/menu3_e.html> (date accessed: 18 January 2002).

102. See s. 1.3.1, above, for a definition of Cabinet confidences.

103. Treasury Board of Canada Secretariat, Improved Reporting to Parliament Project

(1997), online: Treasury Board Secretariat <http://www.tbs-sct.gc.ca/tb/estimate/irppe.html> (last modified: 5 September 2001). The Treasury Board makes

reports from all government departments available on its website; online: Treasury

Board of Canada Secretariat <http://www.tbs-sct.gc.ca/rma/database/access/

dflex.asp?id=39&lang=E> (last modified 4 February 2002).
Ease of Access

Virtually all draft regulations are published in Part I of the Canada

Gazette along with a RIAS. The Canada Gazette is available at libraries

across Canada, through print subscriptions and through the Internet.

The volume and scope of the Canada Gazette make it time-consuming to

use as a means of staying up-to-date on environmental laws and policies. Companies often rely on industry associations and commercial

publications to notify them when draft legislation and policies that

could affect them are published in the Canada Gazette. Others rely on the

press, public information campaigns by non-governmental organizations and government websites to provide that service.

Timeliness

Time frames for public comment on draft regulations published in

Part I of the Canada Gazette are typically 60 or 90 days.

Affordability

The Canada Gazette can be accessed at no cost on the Internet and at

public or university libraries.

4.3 Provincial (Ontario)

Legal Right of Access to Information

The EBR gives the public notice and comment rights relating to

proposed regulations, policies, programs and plans (see Section 3.3,

above, for an introduction to the EBR).

When a minister considers that a proposal for a regulation could, if

implemented, have a significant effect on the environment, the EBR

requires that he or she do everything in his or her power to give notice of

the proposal on the Registry (see Section 3.3, above, regarding the Environmental Registry). The minister has discretion to do so with regard to

proposed acts and policies.104 As with permit applications, public notice

is not required to be given where such notice would endanger human

health or safety or harm or risk harming property or the environment.

The minister is also excused from giving notice if the proposal is subject

CANADA 53

104. A policy is defined as a program, plan or objective, and includes guidelines or criteria to be used in making decisions about issuing, amending or revoking permits.
to a similar public participation process under other legislation or the

decision is primarily administrative or financial in nature. Finally, no

notice is required for proposals that form part of a budget or economic

statement presented to the Legislative Assembly of Ontario.

After giving notice of a proposal, ministers are legally obliged to

take every reasonable step to ensure that all relevant public comments

are considered when decisions are made regarding the proposal. Ministers are required to give notice as soon as reasonably possible after a proposal for a policy or regulation has been implemented.

All ministries subject to the EBR, including the Ministry of Environment, have Statements of Environmental Values (“SEVs”). A SEV is

intended to explain how a Ministry’s values and goals, as well as those of

the EBR, will be factored into ministry decisions that might significantly

affect the environment. SEVs and any revisions thereof must be posted

on the Environmental Registry.

Any two Ontario residents who believe that an existing regulation

or policy should be amended, repealed or revoked in order to protect the

environment may apply to the ECO (see Section 3.3, above) for a review.

They can also propose new legislation or policies. Under certain conditions, a minister to whom such an application has been transmitted by

the ECO is legally required to consider it in a preliminary manner to

determine whether the public interest warrants a review. If so, a review

must be conducted within a reasonable time. The minister must notify

his or her decision to the ECO and the applicants, providing a brief statement of his or her reasons.

Access Policies

Access provisions under the EBR suffered a setback in November

1995, when a regulation was passed exempting the Ontario Ministry of

Finance from the provisions of the EBR. In addition, public notice

requirements for environmentally significant proposals that would

result in the elimination, reduction or realignment of a provincial government expenditure were suspended for ten months. The ECO issued a

Special Report strongly objecting to both of these moves.105 She argued

that by removing the Ministry of Finance from the purview of the EBR,

the government was weakening the EBR, since there are sometimes

54 ACCESS TO ENVIRONMENTAL INFORMATION

105. Ontario,Ontario Regulation 482/95 and the Environmental Bill of Rights(Special Report

to the Legislative Assembly of Ontario submitted by Eva Ligeti, Environmental

Commissioner of Ontario, 17 January 1996).
major environmental issues associated with Ministry of Finance initiatives. She also argued that if the application of the EBR to proposals

related to downsizing and consolidating government departments

and services were temporarily suspended, environmental consequences

could be overlooked for the sake of expediting cost-cutting. Finally, she

objected to the fact that legislation amending the EBR was not posted on

the EBR.

Ontario ministries routinely fail to comply with the EBR by not

posting important legislative and policy proposals on the Registry.

It has been argued that the promise of the EBR has been undermined by the failure of government ministries to incorporate their SEVs

into their business plans.106

Ease of Access

The ECO has developed instruction kits and application forms for

individuals wishing to apply for a review to determine whether an existing policy, act, regulation or instrument should be amended, repealed or

revoked. The ECO also provides assistance to persons going through the

review process.

Timeliness

The ECO issued a guidance document in 1996 listing factors that

should be taken into consideration by government ministries in deciding how long to post proposals on the Registry in order to achieve the

purpose of the EBR with respect to notice and comment.107 Use of the

guidance has increased over time, but there are still instances of complex

legislation being posted for only the thirty-day minimum period. As a

result, there is little time for the public to respond and attempt to secure

changes to the draft proposal before it is adopted.

CANADA 55

106. See Conservation Council of Ontario, Missing Values: An Environmental Review of the

1999-2000 Ministry Business Plans by Chris Winter (February, 2000); online: Conservation Council of Ontario <http://www.greenontario.org/cco/publications.

html>. See also Ontario, Open Doors–Ontario’s Environmental Bill of Rights, 1998

Annual Report of the Environmental Commissioner of Ontario to the Legislative Assembly

of Ontario at 35; online: Environmental Commissioner of Ontario <http://www.

eco.on.ca/english/publicat/ar1998.pdf> (date accessed: 22 January 2002).

107. Ontario, Implementing the Environmental Bill of Rights: Environmental Registry Notice

and Comment Procedures–A Guidance Document, Environmental Commissioner of

Ontario (August 1996); online: Environmental Commissioner of Ontario <http://

www.eco.on.ca/english/publicat/regnotic.pdf> (date accessed: 22 January 2002).
A recent example is the Municipal Act, 2001 (“Bill 111”). It was

posted on the Registry for only thirty days even though it is 350 pages

long and contains sweeping changes to the rules on municipal governance in Ontario.108

Affordability

See Section 3.3, above.

5. ENFORCEMENT AND COMPLIANCE ACTIONS

5.1 Introduction

Environmental legislation gives public authorities the power to

enforce and ensure compliance with the requirements of environmental

laws. Government policies attempt to structure the exercise of enforcement discretion so that the actions of enforcement officials are consistent

across geographic regions and the regulated community feels that the

enforcement process is predictable and fair. Enforcement is traditionally

understood to include the exercise of all statutory powers ranging from

inspection to conviction. Compliance-promotion is a preventive, communication- and education-based process in which government and

industry share information and act cooperatively to identify and solve

potential and ongoing compliance problems.

Enforcement and compliance-promotion activities generate valuable information about environmental risks and impacts of regulated

activities, about compliance levels within regulated sectors, about the

government’s enforcement performance and about the success of different approaches to enforcement in ensuring compliance with environmental laws. This section contains an overview of rights to access

enforcement and compliance-promotion information under the AIA

(see Section 1.3.1, above), CEPA (see Section 1.3.2.3, above), CEAA (see

Section 2, above), the habitat protection and pollution-prevention provisions of the Fisheries Act, as well as access to information legislation and

government policy in the province of British Columbia.

56 ACCESS TO ENVIRONMENTAL INFORMATION

108. Bill 111 received third reading on 11 December 2001 and Royal Assent on 12 December 2001; it will come into force on 1 January 2003. Bill 111 was posted on the

Environmental Registry on 2 November 2001 and comments were accepted from 2

November 2001 to 2 December 2001. Notice of the adoption of Bill 111 was posted

on the Registry on 16 January 2002. The Environmental Registry posting for Bill 111,

No. AF01E0002, contains further information about the public consultation process:

Ontario Ministry of the Environment <http://204.40.253.254/envregistry/016959

ea.htm> (date accessed: 22 January 2002).
5.2 Federal

Legal Right of Access to Information

The AIA gives the head of a government institution discretion to

refuse to disclose any record that contains information obtained by an

investigative body in the course of a lawful investigation pertaining to,

inter alia, the enforcement of any law of Canada or a province. This discretion also extends to information “the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of

Canada or a province or the conduct of lawful investigations.” “Investigative bodies” are listed in a regulation adopted under the AIA. Environment Canada and the Department of Fisheries and Oceans, the

departments responsible for enforcing CEPA and the Fisheries Act, are

not investigative bodies for the purposes of the AIA. Therefore, in order

to refuse to disclose law enforcement records, these departments must

in principle be able to establish that disclosure “could reasonably be

expected to be injurious” to their law enforcement or investigation operations, unless the records are exempt from disclosure for some other reason recognized under the AIA, such as, for example, solicitor-client

privilege or because they contain confidential third-party information.

CEPA contains provisions providing for disclosure of both general

and case-specific enforcement information. At the general level, the federal Minister of Environment is required to report annually on the

administration and enforcement of the Act. CEPA annual reports provide a national summary of enforcement and compliance efforts. The

reports contain statistics on inspections, warnings, directions, prosecutions, and convictions under the various CEPA regulations. They also

contain a brief description of enforcement and compliance initiatives.

The CEPA Registry (see above, Section 3.2, regarding the Environmental

Registry) contains copies of administrative agreements entered into by

the Minister and provincial or territorial governments or an aboriginal

people to streamline enforcement efforts under regulations, as well as

equivalency agreements which render CEPA regulations inapplicable in

a jurisdiction determined to have “equivalent” regulatory provisions in

place.

CEPA also provides access to case-specific information. Thus, for

example, it allows the public to be informed of deals struck to address

situations of non-compliance by providing that the Environmental Registry must contain a copy of every “environmental protection alternative

measures” agreement entered into by the Attorney General of Canada

and a person who is alleged to have committed an offense under CEPA.

CANADA 57
It also promotes public involvement in enforcement activities by giving

every adult Canadian resident who believes that an offense has been

committed under CEPA the right to apply to the Minister for an investigation.109 The Minister must then investigate all matters he or she considers necessary to determine the facts relating to the alleged offense.

During the investigation, the Minister must report to the applicant every

ninety days on the progress of the investigation and actions, if any, that

the Minister proposes to take. If the investigation is discontinued, the

Minister must provide reasons to the applicant.

If the Minister fails to conduct the requested investigation or

responds to the investigation unreasonably, and if there has been significant harm to the environment, CEPA gives the applicant the right to file

an “environmental protection action” against the alleged offender.110

CEPA provides that notice of an environmental protection action must

be given by the Minister on the Environmental Registry. In an environmental protection action, the court can order the alleged offender to do

or refrain from doing something and can grant any other appropriate

relief (including awarding costs), except awarding damages. It can also

order the parties to such an action to give notice of matters relating to the

action to the Minister, who must then post such notices on the Registry.

A court can stay or dismiss an environmental protection action if it

is in the public interest to do so. In making this determination, the court

can consider, inter alia, whether the Minister has an adequate plan to

58 ACCESS TO ENVIRONMENTAL INFORMATION

109. The Québec Environment Quality Act,R.S.Q., c. Q-2 (“EQA”) provides an example of

a similar provision at the provincial level. Section 117 of the EQA allows a person

claiming to have suffered damage to his or her health or property as a result of an

emission of a contaminant to request that the Minister undertake an inquiry. If the

Minister considers an inquiry to be warranted, he or she must report on the results

of the inquiry to the complainant, the responsible person, and the local municipality

(s. 118 of the EQA). When the Minister intends to exercise certain order powers to

address an environmental situation under the EQA, he or she must give fifteen days

prior notice (and an opportunity to comment) to the person to whom the order will

be issued. A copy of the prior notice along with supporting information must be

transmitted to the local municipality as well as to persons having registered complaints in connection with the matter. The EQA grants every person a right to a

healthy environment and to its protection, subject to the provisions of the EQA

(s. 19.1 of the EQA). A person domiciled in Québec who frequents a place or the

immediate vicinity of a place in respect of which a contravention of this right is

alleged can apply to the Superior Court for an injunction prohibiting any act or

operation causing such contravention (ss. 19.2 and 19.3 of the EQA).

110. In addition, if the person suffers or is about to suffer loss or damage as a result of

conduct that contravenes CEPA or its regulations, that person can apply to a court

for injunctive relief or an award of damages against the person engaging in such

conduct. It remains to be seen how much evidence of the alleged offense the Minister will require before conducting an investigation or will be required by a court on

an application for an environmental protection action.
correct or mitigate the harm to the environment or human, animal or

plant life or health or otherwise to address the issues raised in the action.

Subject to the AIA, the Minister must post copies of all documents submitted to the court by the Minister in an environmental protection action

on the Registry. Presumably, this includes a copy of any plan referred to

above to correct or mitigate environmental harm.

CEPA further provides that where an offender has been convicted

of an offense under the Act, the court can make an order directing the

offender to publish the facts relating to the conviction in the manner

directed by the court. If the offender fails to do so, the Minister can do so

as provided in the order.

Under the Fisheries Act, the Department of Fisheries and Oceans

must, as soon as possible after the end of each fiscal year, publish a report

on the administration and enforcement of the fish habitat protection and

pollution prevention provisions of the Fisheries Act for that year. These

reports include statistics on warnings, charges laid, and convictions

under the Act, broken down by region.111

Given the very limited enforcement powers under CEAA112 and

the absence of offenses and penalties, compliance is secured primarily

through education and information mechanisms such as the annual

report and public registry system discussed in Section 2.2, above. The

CESD (see above, Section 4.2) has been critical of the lack of quality of

environmental assessments carried out under CEAA.113 In response,

Environment Canada developed a Compliance Monitoring Framework

guidance document. In addition, a compliance monitoring review was

CANADA 59

111. Fisheries and Oceans Canada, 1999-2000 Annual Report to Parliament on the Administration and Enforcement of the Fish Habitat Protection and Pollution Prevention Provisions

of the Fisheries Act (Ottawa: Communications Directorate, Fisheries and Oceans

Canada, 2000), online: Fisheries and Oceans Canada <http://www.dfo-mpo.gc.

ca/habitat/annrep99/english/index_e.htm> (last modified 23 January 2002).

112. In principle, an environmental assessment is carried out automatically if CEAA is

triggered under s. 5 of the Act. However, the Minister is given discretion to order an

environmental assessment in certain situations where s. 5 is not triggered but the

Minister is of the opinion that the project could result in significant adverse interprovincial or international environmental effects or could cause significant adverse

environmental effects on lands of federal interest. In such cases, the Minister can

refer the project to a mediator or review panel and can prohibit the project proponent from doing anything that would commit the proponent to carrying out the

project before the assessment is completed.

113. Ottawa, 1998 Report of the Commissioner of the Environment and Sustainable Development, c. 6 “Environmental Assessment: A Critical Tool for Sustainable

Development”.
undertaken as a background study to the CEAA five-year review.114

According to the CESD, inconsistencies in departmental approaches to

carrying out screenings continue despite these initiatives.115

Access Policies

In its Compliance and Enforcement Policy for the Canadian Environmental Protection Act, 1999, Environment Canada undertakes to post or

give notice of the following information on the Environmental Registry:116 copies of CEPA and its regulations; copies of environmental quality guidelines and objectives, release guidelines, and environmental

codes of practice developed under the Act; copies of the CEPA Compliance and Enforcement Policy; a list of court actions arising from the

enforcement of the Act; as well as information on precedent-setting

cases under the Act. It also permits Environment Canada to use news

media to publicize successful prosecutions under the Act. Environment

Canada’s website contains links to CEPA and Fisheries Act enforcement

information.117

A draftCompliance and Enforcement Policy for the Habitat Protection

and Pollution Prevention Provisions of the Fisheries Act was recently

released for public comment.118 It is based on the CEPA Compliance and

Enforcement Policy.

Ease of Access

In 1998, the House of Commons Standing Committee on Environment and Sustainable Development issued a report on the enforcement

60 ACCESS TO ENVIRONMENTAL INFORMATION

114. Canada, Compliance Monitoring Review: Final Report by D. Redmond (Ottawa:

Legislative and Regulatory Affairs, Canadian Environmental Assessment Agency,

28 June 1999), online: Canadian Environmental Assessment Agency <http://

www.ceaa.gc.ca/0007/0002/0002/bkstd02_e.htm> (last modified 1st September

2001).

115. Canada, 2000 Report of the Commissioner of the Environment and Sustainable Development, c. 9 “Follow-up of previous audits” and Exhibit 9.6, online: Office of the

Auditor General of Canada and the Commissioner of the Environment and Sustainable Development <http://www.oag-bvg.gc.ca/domino/reports.nsf/html/

c009ce.html#0.2.2Z141Z1.2J976V.0H6VUF.P> (date accessed: 23 February 2002).

116. (March 2001), online: Environment Canada <http://www.ec.gc.ca/enforce/

homepage/cepa/CEPA99_final_eng.pdf.pdf> (last modified: 2 May 2001).

117. Sections of the Environmental Law Enforcement website were still under construction in January 2002. Regional enforcement and compliance statistics for CEPA and

the Fisheries Act had been temporarily removed from the Internet (as at 23 January

2002), but were available on CD-ROM on request.

118. Canada, Fisheries Act Habitat Protection and Pollution Prevention Provision Compliance

and Enforcement Policy (Ottawa: Department of Fisheries and Oceans, July 2001).
of CEPA 1988 (see above, s. 1.3.2.3) and the habitat protection and pollution prevention provisions of the Fisheries Act in which it stated that

CEPA 1988 and Fisheries Act annual enforcement reports did not provide

enough information to the public.119 The report states that the CEPA

1988 annual reports provided fairly detailed information about prosecutions (parties, date, location and nature of violation), but only statistical

information about warnings, directions, inspections and investigations.

It noted that insufficient information existed regarding the recidivism

rate for violators who had been issued a warning letter, the most frequently employed enforcement option. It remarked that enforcement

data published in Fisheries Act annual reports was incomplete and noted

that there were significant delays in publishing the reports.

The CEPA Compliance and Enforcement Policy provides that if a document is too long or contains complex maps or drawings, the CEPA Registry will only contain a notice of its availability and contact information.

The Pacific and Yukon Region of Environment Canada produces

an annual Compliance Status Summary Report which provides a detailed

overview of the compliance status of the industrial and commercial sectors with CEPA and the habitat protection and pollution-prevention

provisions of the Fisheries Act.120 These reports contain information on

compliance verification mechanisms used, compliance status, degree of

implementation of a particular law or guideline, descriptions of enforcement actions that have been employed and compliance promotion activities performed. They also provide information on enforcement and

compliance priorities for that year and present selected inspection data

for given facilities, such as pulp and paper mills and mines.

Timeliness

CEPA and Fisheries Act administration and enforcement reports

are published annually (although recent Fisheries Act reports have been

published several years late) and contain statistical and summary information on enforcement. While such information is useful in identifying

CANADA 61

119. Canada, House of Commons, Enforcing Canada’s Pollution Laws: The Public Interest

Must Come First!, Third Report of the Standing Committee on Environment and Sustainable Development (Ottawa: Public Works and Government Services Canada, 1998)

(Chair: Charles Caccia) para. 126-140, online: <http://www.tbs-sct.gc.ca/rma/

database/access/dflex.asp?id=39&lang=E> (date accessed: 4 February 2002).

120. Online: Pacific and Yukon Region, Environment Canada <http://www.pyr.ec.

gc.ca> (last modified: 12 July 2001); the reports are listed on the website as temporarily unavailable (as at 23 January 2002).
overall trends in compliance and enforcement, persons wishing to

obtain short-term access to more detailed information must file access to

information requests under the AIA (see Section 1.3.1, above).

Affordability

Print copies of the CEPA and Fisheries Act annual administration

and enforcement reports are provided at no charge, and they can be

accessed on the Internet for free. Other information relating to enforcement and compliance, if accessible, is subject to the payment of AIA fees.

5.3 Provincial (British Columbia)

Legal Right of Access to Information

FOIPPA (see above, Section 1.4.1) is the principal statute granting

the public a legal right to access environmental enforcement and compliance information in British Columbia.

Access Policies

From 1994-2000, the British Columbia Ministry of Water, Land,

and Air Protection published Charges and Penalties Summary Reports,

which provided information on charges laid, convictions entered and

penalties imposed for offenses committed under provincial environmental protection statutes and under the environmental protection provisions of the Fisheries Act.121

The other key British Columbia source of information on compliance and enforcement with environmental laws is a biannual government report formerly entitled the Environmental Noncompliance Report,

recently suspended for a year and renamed the Environmental Protection

Noncompliance Report.122 The report identifies industrial and municipal

operations that are out of compliance with the British Columbia Waste

Management Act and regulations.123

62 ACCESS TO ENVIRONMENTAL INFORMATION

121. The publication of these reports is currently suspended. Online: British Columbia

Ministry of Water, Land and Air Protection <http://www.gov.bc.ca> (date

accessed: 23 January 2002).

122. Online: British Columbia Ministry of Water, Land and Air Protection <http://

www.gov.bc.ca> (date accessed: 23 January 2002).

123. S.B.C. 1982, c. 41.
Ease of Access

The Environmental Protection Noncompliance Report is available on

the Internet, as are past issues of the Charges and Penalties Summary

Reports.

Timeliness

There was a one-and-a-half year delay in publishing the current

Environmental Protection Noncompliance Report.

Affordability

The Ministry makes print copies of its reports available to the public at no charge. The reports are also available on the Internet. The cost of

obtaining information through a FOIPPA request varies according to the

format and volume of information requested.

6. NATIONAL POLLUTANT RELEASE INVENTORY

The National Pollutant Release Inventory (“NPRI”), established

in 1992, is Canada’s official pollutant release and transfer register, a

national database of substances released into the environment from

industrial and transportation sources or transferred off-site as waste.

NPRI is administered by the federal Minister of the Environment under

CEPA (see above, Section 1.3.2.3). Every year, the Minister publishes a

notice in the Canada Gazette listing substances subject to NPRI reporting

as well as criteria that trigger the reporting requirement, such as number

of employees at a facility and threshold amounts of the substance

released by a facility into the environment during the reporting year.

The list of substances has been getting longer every year, partly to meet

Canada’s reporting requirements under international agreements, and

reporting thresholds are being lowered for some substances in recognition of the fact that they can cause significant impacts even if released in

small amounts. Facilities subject to NPRI must file their reports by

June 1st of each year, and it is an offense under CEPA not to do so. In

1999, 2,190 facilities across Canada submitted 8,595 reports for 245 substances.124

CANADA 63

124. Canada, National Pollutant Release Inventory, National Overview 1999 (Ottawa:

Environment Canada, 2001), online: Environment Canada <http://www.ec.

gc.ca/pdb/npri/documents/Web_1999_NPRI_Overview.pdf> (last modified:

19 November 2001) [hereinafter “1999 National Overview”] at s. 3.2.
Legal Right of Access to Information

Under CEPA, the Minister must publish NPRI data but has discretion regarding how to do so. The right to access NPRI information is limited by confidentiality provisions discussed below.

A person required to provide information pursuant to an NPRI

notice may submit a written request that the information be treated as

confidential on the basis that it constitutes a trade secret, that disclosure

would likely cause material financial loss or prejudice to the competitive

position of the submitter, or that disclosure would likely interfere with

contractual relations of that person. A request for confidentiality will be

denied if the information is already in the public domain or can be

accessed through other legal means such as obtaining a copy of a provincial waste permit by filing a request under access to information legislation.125

The Minister is entitled to determine whether the reasons supporting a request are well-founded. Even if they are, the request will be

denied if disclosure of the information is in the interest of the protection

of the environment, public health or public safety, and the public interest

in disclosure outweighs in importance the material financial loss or prejudice to the competitive position of the applicant, as well as any damage

to the privacy, reputation or human dignity of any individual that may

result from disclosure.

If a confidentiality request is granted, the data will not be published, although it will still be gathered and entered into the database.

The NPRI annual report lists the number of facilities granted confidential status and their overall contribution to the database. Six facilities

were granted confidential status for information provided to the NPRI

in 1999.126

Ease of Access

NPRI information can be accessed on the NPRI website via the

Environment Canada website. The search function on the website makes

it possible to search by location (using postal codes), industrial sector,

facility, or substance. Pictures of some facilities are provided, as well as

64 ACCESS TO ENVIRONMENTAL INFORMATION

125. Canada, National Pollutant Release Inventory, Guide for Reporting to the National

Pollutant Release Inventory, 2000 (Ottawa: Environment Canada, 2001), online:

Depository Services Program, Government of Canada <http://dsp-psd.pwgsc.

gc.ca> (date accessed: 23 January 2002).

126. 1999 National Overview, supra, note 139 at s. 31.
maps showing their location (this requires special software). Data and

trend analysis over several years is provided in chart form, provided the

searcher’s browser supports the NPRI software. NPRI databases can

also be downloaded, allowing users to analyze the data using the software of their choice. If the formats provided by NPRI do not meet a

user’s needs, alternate arrangements can be requested.

A CD-ROM containing a comprehensive collection of all the NPRI

data and annual summary reports from 1994-1999 is available in dBase

and Access formats. In the latter format, the data files include more than

sixty specially developed queries designed to extract industry, facility

and substance specific information. However, special software is

required to run these queries. NPRI data is also available in a userfriendly format on a website managed by several Canadian environmental non-governmental organizations.127 The site offers data analysis

and facilitates searching for information regarding specific geographic

locations.

Timeliness

For the 1999 and 2000 reporting years, NPRI information has been

made available to the public on the Internet within five months of the

June 1st reporting deadline, with updates provided thereafter for late filings. For the 2000 reporting year, an annual report analyzing the information in relation to earlier reporting years is expected to be published

in April 2002, as is a new CD-ROM containing all NPRI data from

1994-2000.

Affordability

Hard copies of NPRI reports as well as the NPRI CD-ROM are

provided to members of the public at no charge.

7. EXCEPTIONS TO DISCLOSURE

Access-to-information laws give the public the right to access environmental and other information held by government. The right of

access is limited by rules designed to protect the interest of government

and third parties in maintaining the confidentiality of certain types of

information.

CANADA 65

127. See <http://www.pollutionwatch.org> (date accessed: 25 January 2002).
This section reviews exceptions to the disclosure of information

under Canadian access-to-information law.128 It identifies the types of

information to which the law “does not apply”129 and reviews grounds

that can be invoked by government for not disclosing information that is

covered by the law. The focus is on the AIA (see above, Section 1.3.1);

provincial access laws are referred to only for comparison purposes.

As discussed in Section 1 of this chapter, the Constitution does not

create an explicit right to access government-held information and so

far, to our knowledge, the courts have not found such a right to be

implied in the Constitution. Therefore, the legally enforceable right to

access information held by the federal government begins and ends with

the AIA and other laws that may add to (but cannot subtract from) rights

granted in the AIA.130

Records to which the AIA applies but in respect of which the government can or must deny access are said to be “exempted” from the

AIA.131 Records to which the AIA “does not apply”132 are said to be

“excluded” from the AIA.

The key difference between exempted and excluded records lies in

the right of an applicant to seek third-party review of the government’s

decision to deny an access request. With regard to exempted records, the

Information Commissioner of Canada can review a decision by a federal

government institution to classify a record as an exempted record and

deny access on those grounds. In some cases, he even has authority to

review the determination by a government institution that disclosure

of a record would be injurious to the interests being protected by

non-disclosure. In principle, the Information Commissioner has no such

authority in respect of excluded records, since the AIA “does not apply”

to them and the power of the Information Commissioner to obtain access

66 ACCESS TO ENVIRONMENTAL INFORMATION

128. Environmental laws also provide for access to information, but usually subject to

the restrictions found in access-to-information laws. See e.g., s. 118.4 of the Quebec

Environment Quality Act, R.S.Q., c. Q-2: “Every person has the right to obtain from

the Ministère de l’Environnement copy of any available information concerning the

quantity, quality or concentration of contaminants emitted, issued, discharged or

deposited by a source of contamination or concerning the presence of a contaminant in the environment. This section applies subject to the restrictions to the right

of access provided in section 28 of the Act respecting Access to documents held by public

bodies and the Protection of personal information [R.S.Q., c. A-2.1].”

129. Sections 68 and 69 of the AIA.

130. Section 4(1) of the AIA states “[s]ubject to this Act, but notwithstanding any other Act

of Parliament, every person ... has a right to and shall, on request, be given access to

any record under the control of a government institution” [emphasis added].

131. The AIA lists exclusions in ss. 68-69. It lists exemptions in ss. 13-26.

132. Sections 68 and 69 of the AIA.
to records in the course of his investigations is limited to examining “any

record to which this Act applies that is under the control of a government

institution” [emphasis added].

Often, government records do not fit clearly into one category or

another. Thus, a record could be considered to fall either under the AIA

exemption for information on operations of government (and could

therefore be reviewed by the Information Commissioner) or under the

exclusion for Cabinet confidences (and could therefore not be accessed

by the Information Commissioner). This has led to disputes between the

Information Commissioner and government institutions regarding

whether the institution’s decision not to disclose a document can be

reviewed by the Information Commissioner. We will begin by discussing exemptions.

Exemptions are either discretionary or mandatory, meaning the

government either can or must refuse to disclose the information. In

some cases, in order to invoke a discretionary exemption, the government must have a reasonable expectation, reviewable by the Information Commissioner, that disclosure would be injurious to the interest

being protected. No injury test applies to the exemptions for investigation records, techniques and plans of specified investigative bodies;

information on government operations, including advice or recommendations developed by or for a government institution or minister of the

Crown; information on testing or auditing procedures, or information

subject to solicitor-client privilege. For these categories of exemptions,

all the government need ensure before denying access is that the record

in fact falls into one of these categories.

Under Section 20(1) of the AIA, the government must refuse to disclose any record that contains “third-party information” if it falls within

one of the categories listed below:

(a) trade secrets133 of a third party;

(b) financial, commercial, scientific or technical information that is

confidential information supplied to a government institution by a

CANADA 67

133. “Trade Secrets” is not defined in the AIA. The SOIA (see below, note 137) contains

the following definition: “Any information, including a formula, pattern, compilation, program, method, technique, process, negotiation position or strategy or any

information contained or embodied in a product, device or mechanism that (a) is or

may be used in a trade or business; (b) is not generally known in that trade or business; (c) has economic value from not being generally known; and (d) is the subject

of efforts that are reasonable under the circumstances to maintain its secrecy” (s.

19(4) of the SOIA, enacted by s. 29 of the ATA).
third party and is treated consistently in a confidential manner by

the third party;

(c) information the disclosure of which could reasonably be expected

to result in material financial loss or gain to, or could reasonably be

expected to prejudice the competitive position of, a third party; or

(d) information the disclosure of which could reasonably be expected

to interfere with contractual or other negotiations of a third party.

Unlike other exemptions in the AIA, the exemption for third-party

information is subject to a “public interest override” which allows the

government to disclose the information if it would be in the public interest to do so. Before invoking this override to disclose records, however,

the head of a government institution must find that the public interest in

disclosure clearly outweighs in importance whatever injury disclosure

would cause to the interests mentioned at (b), (c) and (d), above.

The AIA prescribes a procedure for notifying third parties that the

head of a government institution intends to disclose third-party information pursuant to the Act and allowing them to object to disclosure.

Subject to the government institution’s discretion to extend the time

limit, the notice is sent within thirty days of receipt of the access request,

if the third party can reasonably be located. The third party then has

twenty days to make representations in writing as to why the record

ought not to be disclosed, following which the government institution

has thirty days to make a decision about disclosure. If the decision is in

favor of disclosure, the third party is notified and then has twenty days

to file an appeal in Federal Court, which must hear the application in a

summary way.

In his 2001 Annual Report, the Information Commissioner stated

that “[t]his Commissioner has seen thousands of government-held

records relating to private businesses. Real secrets are rare. Sounding

the alarm of competitive disadvantage has become as reflexive in

some quarters as blinking.”134 He recommended abolishing the section

20(1)(b) exemption (confidential information) and questioned the need

for section 20(1)(a) (trade secrets). In his view, the exemption found in

section 20(1)(c) (financial loss or prejudice to the competitive position),

68 ACCESS TO ENVIRONMENTAL INFORMATION

134. Canada, 2000-2001 Annual Report of the Information Commissioner of Canada (Ottawa:

Queen’s Printer, 2001) [hereinafter “2001 Annual Report”], c. 3–Blueprint for

Reform, B. Legislative Tune-Up, “Section 20–Confidential Business Information,”

online: Information Commissioner of Canada <http://www.infocom.gc.ca/

reports/2000-2001t-e.asp> (last modified: 31 July 2001).
reproduced above, is sufficient. He recommended broadening the public interest override to include such interests as consumer protection,

and he suggested reviewing third-party notice requirements to allow

other forms of notice, such as public notice or advertisement when this

would be more effective, practical, and less costly.

In a consultation of government employees carried out as part of

the current reform of the AIA (see above, Section 1.3.1), it was argued

that twenty days is too little time for third parties to gather the evidence

needed to prevent disclosure of their business information, especially

when these parties are foreign entities.135 As a practical matter, it was

argued that notice should not be required where it is known from past

practice that the information will be disclosed regardless of the arguments of the third party.

The exemption for third-party information is the principal barrier

to public access to government-held environmental information related

to industry, its compliance with environmental law, and its impacts on

the environment.136 We now turn to a discussion of exclusions under the

AIA.

The AIA does not apply to published material137 or material available for purchase by the public. It stands to reason that if information is

already in the public domain, the public does not need the AIA to gain

access to it.138 Material that is for sale, however, is not always publicly

accessible, because price can be a barrier to access.139 The Information

CANADA 69

135. Canada, Access to Information Review Task Force, Public Service Consultations,

Consultation–Financial and Commercial Information (16 March 2001), online:

Access to Information Review Task Force <http://www.atirtf-geai.gc.ca/

consultation2001-03-16b-e.html> (date accessed: 18 January 2002).

136. Environmental statutes sometimes contain specific provisions for the protection of

confidential business information (see above, ss. 1.3.2.1, 1.3.2.3, 6).

137. Even if the information has not been published, the AIA provides that the head of a

government institution may refuse to disclose a record if he believes on reasonable

grounds that the information will be published within ninety days or such further

period as may be necessary for printing or translating.

138. This principle is also applied elsewhere in the AIA. Thus, if a third party such as a

foreign state or provincial government has already made the requested information

public, the information may be disclosed, even though it would normally be

exempt from disclosure. The same applies to personal information that is already

publicly available.

139. The tension between the public’s need to know and the government’s desire to

recover costs or make a profit from the dissemination of information also exists

under the AIA. The Information Commissioner has argued that regardless of the

identity or purpose of an applicant requesting access to information, access fees

should cover costs only and not yield a profit, and should be updated to account

for the lower cost of disseminating information in new media formats. He also

recommends amending the AIA to allow the government to deny frivolous
Commissioner has recommended narrowing the scope of this exclusion

to cover only information that is reasonably priced and reasonably

accessible to the public.140

The second broad category of information to which the AIA does

not apply is confidences of the Queen’s Privy Council or “Cabinet confidences.” Cabinet confidences are defined in the AIA as including such

things as memoranda the purpose of which is to present proposals or

recommendations to Council; discussion papers the purpose of which is

to present background explanations, analyses of problems or policy

options to Council for consideration by Council in making decisions;

any documents recording deliberations of that kind, reflecting such

communications or briefing ministers of the Crown on matters before

Council; draft legislation; and any records containing information about

the content of the types of documents listed above.

The exclusion of Cabinet confidences from the AIA has been justified in federal policy as follows:

The Canadian government is based on a Cabinet system. Thus, responsibility rests not in a single individual, but on a committee of ministers

sitting in Cabinet. As a result, the collective decision-making process has

traditionally been protected by the rule of confidentiality. This rule protects the principle of the collective responsibility of ministers by enabling

them to support government decisions, whatever their personal views.

The rule also enables ministers to engage in full and frank discussions necessary for effective functioning of a Cabinet system of government.141

There are two exceptions to this exclusion: Cabinet confidences

must be made public once they have been in existence for at least twenty

years, and discussion papers must be released if the decision to which

they relate has been made public or four years have passed since the

decision was made.

In principle, neither the Information Commissioner of Canada nor

the Federal Court of Canada can review a decision by a minister of the

Crown or the Clerk of the Privy Council to declare a record to be a Cabinet confidence and thereby deny access.142

70 ACCESS TO ENVIRONMENTAL INFORMATION

requests instead of using fees as a means of blocking such requests. 2001 Annual

Report, c. III–Blueprint for Reform, B. Legislative Tune-Up, “Price Barriers.”

140. Ibid.

141. Canada, “Confidences of the Queen’s Privy Council for Canada” in Access to Information Act: Policies and Guidelines (Ottawa: Treasury Board Secretariat, 1993).

142. See s. 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5, which provides that a minister or the Clerk of the Privy Council can object to the disclosure of information
The Information Commissioner has argued that Cabinet confidences should not be excluded from the AIA because the exclusion has

the effect of undermining two objectives of the AIA: first, that necessary

exceptions to the right of access should be limited and specific, and second, that decisions on the disclosure of government information should

be reviewed independently of government.143 In support of his argument, the Information Commissioner has pointed out that the trend

under provincial legislation and in other countries has been to make

Cabinet confidences subject to a mandatory exemption under access legislation. He recommends that Canada follow this lead as part of the current reform of the AIA.

If Cabinet confidences were exempt from the AIA rather than

excluded, the Information Commissioner would have the authority to

review the content of disputed records and make his own findings

CANADA 71

before a court, person or body with jurisdiction to compel the production of information (including the Information Commissioner) by issuing a certificate stating

that the information constitutes a Cabinet confidence. With the recent coming into

force of the Anti-Terrorism Act, S.C. 2001, c. 41 [hereinafter the “ATA”], the Canada

Evidence Act has been amended to allow the Attorney General of Canada to issue a

similar certificate to prohibit disclosure of information obtained in confidence from

a foreign entity or for the purpose of protecting national defense or national security. There is a right of appeal from such a decision to the Federal Court of Appeal,

which has the power to vary or cancel the certificate. There is no further right of

appeal (s. 38.13(1) and s. 38.131 of the Canada Evidence Act, enacted by s. 43 of the

ATA). The ATA amends the AIA to describe the effect of such a certificate: if it is

issued before a complaint is filed with the Information Commissioner, the effect of

the certificate is to exclude the information from the purview of the AIA. If it is

issued when a complaint has already been filed, the Information Commissioner’s

investigation is discontinued and he must return the information to the head of the

government institution that controls the information (s. 69.1 of the AIA, enacted by

s. 87 of the ATA). The ATA also makes several amendments to the Official Secrets

Act, R.S.C. 1985, c. O-5 (now called the Security of Information Act (“SOIA”)). The

Information Commissioner is now designated as a “person permanently bound to

secrecy” in respect of “special operational information” (s. 8(1) and Schedule to the

SOIA enacted by s. 29 of the ATA). He may only communicate or confirm such

information if he can establish that it is in the public interest to do so in order to disclose an offense committed or about to be committed by someone acting in the

service of Canada, and the public interest in disclosure outweighs the public interest in non-disclosure. In order to satisfy the second part of the test, he must have

brought his concerns to the attention of a designated government official, unless he

was acting to avoid grievous bodily harm or death (s. 15 of the SOIA enacted by s. 28

of the ATA).

143. See 2001 Annual Report, c. III–Blueprint for Reform, A. Major Reforms, i) Reform of

Cabinet Confidences. See also Canada, “The Access to Information Act and Cabinet

confidences–A Discussion of New Approaches” (Study prepared by RPG Information Services Inc. for the Information Commissioner of Canada) (Ottawa: Minister

of Public Works and Government Services, 1996), online: Information Commissioner of Canada <http://www.infocom.gc.ca/publications/pdf_en/CABCONF.

PDF> (last modified: 31 July 2001).
regarding their status as Cabinet confidences. If he were not satisfied

that a record qualifies as a Cabinet confidence, he could report on his

findings to the head of the government institution and request a report

on actions to be taken to implement his recommendations. If disclosure

were not granted, he or the applicant could appeal to the Federal Court

to order disclosure.

If Cabinet confidences were made subject to an exemption, the

Information Commissioner does not recommend making the exemption

subject to an injury test requiring the government to prove that disclosure could reasonably be expected to be injurious to the interests of

Canada. He maintains that bringing such proof would unduly prejudice

the government’s interest in maintaining the confidentiality of these

records. However, he recommends defining Cabinet confidences by reference to the essential interest being protected, rather than by focusing

on types of documents.144 He also argues that Cabinet should be given

the power to consent to disclosure of Cabinet confidences,145 and he

urges the federal government to follow the lead of British Columbia,

Alberta and Ontario by making any exemption for Cabinet confidences

subject to a public interest override.146 Depending on the chosen wording, this could allow the head of a government institution to disclose a

72 ACCESS TO ENVIRONMENTAL INFORMATION

144. Ibid. He recommends using the following test: would disclosure “reveal the substance of deliberations of Cabinet or one of its committees?”

145. Mandatory exemptions under the AIA always provide that records can be disclosed with the consent of the party whose interests are being protected. See

s. 13(2)(a) for other governments or international organizations, s. 19(2)(a) for personal information, and s. 20(5) for third-party information. Note that the exemption

for personal information refers to the definition of personal information found in

the Privacy Act, R.S.C. 1985, c. P-21. Sections 18 et seq. of that act list a set of exemptions similar to those in the AIA, and s. 70 excludes Cabinet confidences from the

application of the Privacy Act.

146. For British Columbia, see above, Section 1.4.1. See also Alberta Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25, s. 32(1) “Whether or not a

request for access is made, the head of a public body must, without delay, disclose

to the public, to an affected group of people, to any person or to an applicant (a)

information about a risk of significant harm to the environment or to the health or

safety of the public, of the affected group of people, of the person or of the applicant,

or (b) information the disclosure of which is, for any other reason, clearly in the public interest. (2) Subsection (1) applies despite any other provision of this Act.” See

also Ontario Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31,

s. 23: “An exemption from disclosure of a record under sections 13, 15, 17, 18, 20 ,21

and 21.1 does not apply where a compelling public interest in the disclosure of the

record clearly outweighs the purpose of the exemption.” This override applies to

advice to government but not Cabinet records. The latter are covered by a more general override: “11.(1) Despite any other provision of this Act, a head shall, as soon as

practicable, disclose any record to the public or persons affected if the head has reasonable and probable grounds to believe that it is in the public interest to do so and

that the record reveals a grave environmental, health or safety hazard to the public.”
Cabinet confidence in the face of grave or significant risk to the environment or human health, or if it were clearly in the public interest to do so.

The exclusion for Cabinet confidences is the principal barrier to public

access to government-held environmental information.

For those seeking access to government-held environmental information, the exclusions and exemptions stipulated in the AIA can and do

significantly limit the amount and type of information to which they

have access. The public’s interest in disclosure is offset by political,

economic and privacy interests that are protected by non-disclosure.

Every year, considerable financial and human resources are required to

balance these competing interests in the context of the administration of

the AIA.147

CANADA 73

147. 2001 Annual Report, c. 1–Restoring the Foundations of Accountability, “Why do

these problems persist?”

Mexico

Table of Contents

LIST OF ACRONYMS AND ABBREVIATIONS . . . . . . . . . . . . 79

BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

1. CONSTITUTIONAL AND LEGAL FRAMEWORK . . . . . . . 83

1.1 Federal constitutional framework . . . . . . . . . . . . . . 83

1.2 State constitutional framework . . . . . . . . . . . . . . . 86

1.3 Federal Law of Administrative Procedure . . . . . . . . . 87

1.4 Federal Law of Transparency and Access to Public

Governmental Information . . . . . . . . . . . . . . . . . . 89

1.5 General Law of Ecological Balance and Environmental

Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

1.6 Environmental Law of the Federal District . . . . . . . . 103

2. ENVIRONMENTAL IMPACT ASSESSMENT . . . . . . . . . . 103

2.1 Federal law . . . . . . . . . . . . . . . . . . . . . . . . . . 104

2.2 State law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

3. PERMITS AND AUTHORIZATIONS. . . . . . . . . . . . . . . 111

4. PLAN AND PROGRAM PROPOSALS . . . . . . . . . . . . . . 113

77
5. LAWS, REGULATIONS AND STANDARDS . . . . . . . . . . 118

5.1 Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

5.2 Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . 118

5.3 Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

6. COMPLIANCE ACTIONS AND LAW ENFORCEMENT . . . 122

7. POLLUTANT RELEASE AND TRANSFER REGISTRIES . . . 124

8. EXCEPTIONS TO THE RIGHT TO ACCESS TO

ENVIRONMENTAL INFORMATION . . . . . . . . . . . . . . 128

9. GENERAL CONSIDERATIONS. . . . . . . . . . . . . . . . . . 132

78 ACCESS TO ENVIRONMENTAL INFORMATION
List of Acronyms and Abbreviations

BIE Economic Information Bank (Banco de Información

Económica)

CCDS Sustainable Development Advisory Boards (Consejos

Consultivos para el Desarrollo Sustentable)

CCNNPA National Advisory Committee for Environmental

Protection Standards (Comité Consultivo Nacional de

Normalización para la Protección al Ambiente)

CDIA INE Environmental Documentation and Information

Center (Centro de Documentación e Información

Ambiental)

Cenai Remexmar National Information Center (Centro

Nacional de Información)

CNA National Water Commission (Comisión Nacional del

Agua)

Constitution Political Constitution of the United Mexican States

DOF Official Gazette of the Federation (Diario Oficial de

la Federación)

EIA Environmental impact assessment

ICNA Environmental Rules Compliance Index (Índices

de Cumplimiento de la Normatividad Ambiental)

Imeca Air Quality Metropolitan Index (Índice Metropolitano

de la Calidad del Aire)

INE National Institute of Ecology (Instituto Nacional de

Ecología)

INEGI National Institute of Statistics, Geography and

Information (Instituto Nacional de Estadística,

Geografía e Informática)

LAN Law of National Waters (Ley de Aguas Nacionales)

79
LFPA Federal Law of Administrative Procedure (Ley Federal

de Procedimiento Administrativo)

LGEEPA General Law of Ecological Balance and Environmental Protection (Ley General del Equilibrio Ecológico

y la Protección al Ambiente)

LGVS General Wildlife Law (Ley General de Vida Silvestre)

EIS Environmental impact statement

NMX Mexican Standards (Normas Mexicanas)

NOM Mexican Official Standard (Norma Oficial Mexicana)

NTC Coordinating Technical Nuclei (Núcleos Técnicos

Coordinadores)

PMMIRIP Program for the Minimization and Comprehensive

Handling of Hazardous Industrial Hazardous Waste

in Mexico (Programa para la Minimización y el Manejo

Integral de los Residuos Industriales Peligrosos en México)

Profepa Office of the Federal Attorney General for

Environmental Protection (Procuraduría Federal de

Protección al Ambiente)

PRTR Pollutant release and transfer register

Rama Automatic Atmospheric Monitoring Network

(Red Automática de Monitoreo Atmosférico)

Remexmar Mexican Network for Environmental Handling of

Hazardous Waste (Red Mexicana de Manejo Ambiental

de Residuos Peligrosos)

Remib Mexican Biodiversity Information Network

(Red Mexicana de Información sobre Biodiversidad)

RFTS Federal Registry of Procedures and Services

(Registro Federal de Trámites y Servicios)

Semarnat Secretariat of Environment and Natural Resources

(Secretaría de Medio Ambiente y Recursos Naturales)

Sidia Environmental Indicators System (Sistema de

Indicadores Ambientales)

Sima Air Monitoring System for the Mexico City

Metropolitan Area (Sistema de Monitoreo Atmosférico

de la Zona Metropolitana de la Ciudad de México)

80 ACCESS TO ENVIRONMENTAL INFORMATION
Sinia National Environmental and Natural Resources

Information System (Sistema Nacional de Información

Ambiental y de Recursos Naturales)

Sirrep Hazardous Waste Tracking System (Sistema de Rastreo

de Residuos Peligrosos)

SNIB National Biodiversity Information System (Sistema

Nacional de Información sobre Biodiversidad)

Siore Geographical Information System for Ecological

Control (Sistema de Información Geográfica para el

Ordenamiento Ecológico)

SMAZMVM Air Monitoring System for the Valley of Mexico

Metropolitan Area (Sistema de Monitoreo Atmosférico

de la Zona Metropolitana del Valle de México)

MEXICO 81

BACKGROUND

The purpose of this chapter is to review the constitutional framework and the provisions of federal law (and selected state provisions)

governing public participation and access to environmental information

in Mexico, as well as mechanisms to make such rights effective.

Mexico is developing initiatives to give effect to these rights and to

comply with obligations it has assumed under international treaties

such as the North American Agreement on Environmental Cooperation1 and the United Nations Conference on the Environment and

Development.2

1. CONSTITUTIONAL AND LEGAL FRAMEWORK

In this section, we will review the constitutional and legal provisions governing access to public information, in general as well as specifically with regard to the environment.

1.1 Federal constitutional framework

The right to information was included in the Political Constitution

of the United Mexican States (the “Constitution”) in 1977.3 Article 6 of

the Constitution provides: “The expression of ideas shall not be subject

83

1. The NAAEC promotes transparency and citizen participation in the development of

environmental laws and policies, and calls on authorities to publish and make publicly available periodic reports on the state of the environment.

2. Through the Río Declaration, the UNCED promotes access to information, participation and fairness in environmental decision-making. Principle 10 of the Río

Declaration, approved at the United Nations Conference on the Environment and

Development (Río de Janeiro, 3-14 June 1992), provides: “At the national level, each

individual shall have appropriate access to information concerning the environment

that is held by public authorities, including information on hazardous materials and

activities in their communities, and the opportunity to participate in decisionmaking processes. States shall facilitate and encourage public awareness and participation by making information widely available.”

3. The Constitutional amendment was published in the Official Gazette of the Federation (Diario Oficial de la Federación–DOF) on 6 December 1977.
to any judicial or administrative inquiry, except in the case of an attack

on morality, the rights of third parties, the commission of a crime, or disturbance of public order; the right to information shall be guaranteed by

the State.”

The legal scope of this right has been a matter of debate because the

constitutional provision “does not specify how ‘right to information’

should be understood, nor who the rights-holder is, nor the legal means

by which the State is to enforce it.”4 Rules to implement the constitutional reform were required the development of a specific regulatory

statute.

In interpreting the legal scope of the right to information, the

Supreme Court of Justice at first issued a very restrictive criterion, which

established:5

That the right to information is a social guarantee, correlative to the

freedom of expression implemented as part of the so-called “Political

Reform,” and consisting of the State allowing the regular expression of the

diversity of opinions of political parties in the various communications

media;

That the precise definition of the right to information is left to secondary

legislation;

That there was no intention of establishing an individual guarantee allowing any citizen, when he deems it convenient, to request and obtain certain

information from State bodies.

The full bench of the Supreme Court later broadened the scope of

the aforementioned guarantee, establishing that “the right to information, closely linked with the right to know the truth, requires that the

authorities refrain from communicating manipulated, incomplete or

false information, under penalty of committing a serious violation of

individual guarantees pursuant to Constitutional Article 97.”6

A more recent Supreme Court criterion broadens “the understanding of this right, seeing it as an individual guarantee, logically limited by

84 ACCESS TO ENVIRONMENTAL INFORMATION

4. Report of the Joint Commission on Legislative Studies and Constitutional Matters,

reviewing the draft reform submitted by the President of the Republic in October

1977. Federal Elections Commission,Reforma Política, Mexico, Volume I, 1978, p. 46.

5. Instance: Second Chamber; source: Federal Judicial Weekly (Semanario Judicial de la

Federación); part: X-August; thesis: 2a. I/92; p. 44.

6. Federal Judicial Weekly and Gazette, ninth period, volume III, June 1996, p. 513.
national interests and those of society, as well as by respect for the rights

of third parties.”7

In practice, the matter has evolved. At first, the “right to information” was not understood as a right to access information. Rather, it was

considered to be a mechanism for the State to “guarantee” the public the

availability of timely, truthful and reliable information. Another school

of thought later arose, which considered that the government had an

obligation correlative to the individual guarantee of information. The

result was that initially the guarantee of access to information had no

regulation to give it effect.

In ordinary legislation, it was in 1994 that the Federal Law of

Administrative Procedure (Ley Federal de Procedimiento Administrativo–

LFPA) defined the exercise of the right to public information. Later, in

1996, the scope of the right to environmental information was specified

in the reforms to the General Law of Ecological Balance and Environmental Protection (Ley General del Equilibrio Ecológico y la Protección al

Ambiente–LGEEPA), approved by Congress. These reforms provide for

public access to files, documents and data kept by the administrative

authority. Both of these laws are discussed below.

The second constitutional provision relating to this topic is Article

8, referring to the so-called right of petition, an individual guarantee

closely related to the right to access information. This article provides:

Public officials and employees shall respect the exercise of the right of petition, provided that it is made in writing, in a peaceful and respectful

manner; but in political matters, only citizens of the Republic may make

use of this right. 8

Every petition must receive a written response from the authority to

which it is directed, which is bound to issue it promptly to the petitioner.

The right of petition consists of the right of an individual to

approach State authorities and file a written request or petition of any

nature, in order to obtain a response thereto. The right of petition is a full

individual guarantee consisting of rights for private individuals and a

correlative obligation to the authorities. The authorities’ obligation is to

respond in writing to the request received. However, this does not necessarily imply that they must respond affirmatively to the petition.

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7. Ninth period. Instance: Full Court; source: Federal Judicial Weekly and Gazette, volume XI, April 2000, thesis: P. LX/2000, page: 74, re isolated constitution theses.

8. Constitutional Article 34, paragraph V, also considers a citizen’s prerogative to

“[e]xercise the right of petition in all kinds of business.”
A very important aspect of this constitutional guarantee is that the

exercise thereof is not subject to the fulfillment of any conditions, i.e., it is

a full guarantee granted to all persons.9 The Supreme Court has clearly

defined that “Constitutional Article 8 does not subject the response, nor

any other aspect of the right of petition, to the petitioners’ compliance or

noncompliance with any regulatory requirements.”10

It should be noted that under the constitutional reforms of 28 June

1999, Constitutional Article 4 was amended to include the right of

all persons “to an environment adequate for their development and

well-being.” This article reinforces the need for the State to promote

mechanisms necessary to ensure the development and well-being of the

citizenry in an adequate environment, including mechanisms for access

to environmental information.

1.2 State constitutional framework

The right to information and the right of petition are included in

the legal framework of the Mexican states, based on the principle of federal constitutional supremacy.11 The States’ constitutions may not contradict or restrict the prescriptions of the federal Constitution. That is to

say, a state may broaden the protection of a right within its own Constitution, but in no case may it restrict protections afforded by the federal

Constitution.

As an example, the Political Constitution of the State of Yucatán

states in Article 86:

The state, in its function of organizing life in society, shall take measures

required to ensure the solidarity of associated elements and to guarantee

that they shall share equitably in the benefits of social living. The state,

using its public powers, shall guarantee respect for every individual’s

86 ACCESS TO ENVIRONMENTAL INFORMATION

9. Right of petition, Federal Judicial Weekly, sixth period, vol. LXXVII, third part, p.

25, Injunction review 6176/63, José Guadalupe Arontes Blancas, 28 November

1963, 5 votes: “It is not accurate to say that the right of petition, contained in Constitutional Article 8, is subject to the petitioner’s proof of legal interest in the object of

his petition, as the guarantee under said provision only requires that it be exercised

in writing, in a peaceful and respectful manner.”

10. Right of petition, Federal Judicial Weekly, sixth period, vol. XIX, third part, p. 63,

Injunction review 4916/58, Juan N. Canales, 19 January 1959, unanimity of four

votes.

11. Constitutional Article 133 expresses this principle. Under a recent Supreme Court

decision, international treaties are considered to be hierarchically superior to local

laws. However, as regards federal laws, in certain matters the Constitution provides that Congress, through a federal law, may distribute competencies among

the federal, state and municipal governments.
right to enjoy an ecologically balanced environment and the protection of

the ecosystems that represent Yucatán’s natural resources, based on the

following principles:

I. Residents of the state have the right to live in a healthy environment that

allows them to have a worthy life and to rationally use the natural

resources of the state to attain sustainable development, as provided by

Law;

II. No person may be required to carry on activities that cause or may cause

environmental deterioration, as provided by Law; and

III. Residents of the state have the right to know and have access to current

information on the state of the environment and natural resources of the

state, as well as to participate in activities for the conservation and

improvement thereof.12

These constitutional provisions are regulated by the Environmental Protection Law of the State of Yucatán, which provides, in the chapter

on citizen participation and environmental awareness:

It is the obligation of the State Secretariat of the Environment to publicize,

in the various mass media and in any other publication, legal provisions of

general interest and the programs and projects relating to ecological balance and environmental protection.

This law clearly establishes that any person shall be entitled to

require the Secretariat and local governments to provide any environmental information requested in a written petition, specifying the

requested information and the reasons for the petition.13 The Secretariat

may deny information deemed confidential and documents held by the

Secretariat that have been issued by a different authority.14

1.3 Federal Law of Administrative Procedure

The LFPA was published in the Official Gazette of the Federation

(Diario Oficial de la Federación–DOF) on 4 August 1994, and entered into

force on 1 June 1995. The provisions of the law apply to the acts, proceedings and rulings of the centralized federal public administration and of

the decentralized agencies of the parastate federal public administration

as regards their official acts, services provided exclusively by the State,

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12. This article is found in Title Eight of the Yucatán State Constitution, referring to the

“State’s function for living and integral development.”

13. Article 98 of the Environmental Protection Law of the State of Yucatán.

14. Article 99 of the Environmental Protection Law of the State of Yucatán.
and private contracts entered into with the State, subject to the provisions of international treaties signed by Mexico. The LFPA supplements

various administrative laws, such as the LGEEPA.15

As regards access to information, the LFPA sets out with the following basic principles:

All administrative acts of a general nature, such as “regulations,

decrees, accords, Mexican Official Standards, circulars and forms,

as well as guidelines, criteria, methodologies, instructions, directives,

rules, manuals,” and any other provisions “issued by the decentralized

entities and agencies of the federal public administration,” must be

published in the DOF to have legal effect.16

In its dealings with private individuals, the public administration

is required to inform them of those proceedings in which they have

a legal interest and to provide them with copies of the information

contained therein,17 as well as information on the legal and technical

requirements considered for certain projects, acts or requests that are

proposed.18 Lastly, the authorities must allow access to their records and

files as provided in this or other laws.19

The time for the agency to resolve any matter may not exceed three

months.

The Law includes a very common provision in Mexican law, the

so-called deemed denial: if the applicable period passes, the request must

be deemed to have been ruled on in the negative, the only exception

being where another legal or administrative general provision provides

to the contrary.20 This represents an obstacle to access to information, as

the authority will not infrequently let the period run out, meaning the

matter is automatically deemed denied, with no grounds or reasons

whatsoever.

The interested parties in an administrative procedure have the

right to know, at any time, the status of their proceeding by obtaining

timely information from the corresponding offices. Exceptions to this

88 ACCESS TO ENVIRONMENTAL INFORMATION

15. The LFPA does not apply to the fields of taxation, finance, public servants’ liabilities, elections, economic competition, agrarian law, labor or criminal prosecutions

(Article 1, second paragraph).

16. LFPA Article 4.

17. LFPA Article 16, paragraph III.

18. LFPA Article 16, paragraph VII.

19. LFPA Article 16, paragraphs VII and VIII.

20. LFPA Article 17.
rule include the case of information regarding national defense and

security, commercial or industrial secrets, where the petitioner is not a

party to or affected by the proceeding, or when a legal provision prohibits disclosure. At their own cost, interested parties may request certified

copies of the documents contained in the administrative file they wish to

view.21

The LFPA provides for the creation of the Federal Registry of Procedures and Services (Registro Federal de Trámites y Servicios–RFTS),22 a

public registry kept by the Federal Regulatory Improvement Commission (Comisión Federal de Mejora Regulatoria) intended to collect information on the procedures undertaken by the agencies and decentralized

entities of the federal public administration. This registry records all

matters involving administrative procedures and the operating characteristics thereof.23

1.4 Federal Law of Transparency and Access to Public

Governmental Information

The Federal Law of Transparency and Access to Public Governmental Information (Ley Federal de Transparencia y Acceso a la Información

Pública Gubernamental) entered into force on 12 June 2002. It is a law of

public order intended to ensure that all persons have access to information held by Mexican federal authorities. The Law establishes the obligation for federal entities to make publicly available, and update, certain

categories of information; provides a process for attending to access to

information requests; and it contains provisions to protect personal

data. The transitional provisions stipulate that the federal executive

branch will issue a regulation to implement the Law within one year

from its entry into force (the “Regulation”). Once the Regulation comes

into force, the public may begin to file access to information requests.

Government agencies have until 1st January 2005, to organize their files

in accordance with criteria to be issued by the General National Archive,

publish a simple guide to their classification and cataloging systems,

and organize their files. Compliance with the Law is mandatory for federal public servants, and their interpretation of the Law must advance

the principle of the publicity of information. The Law lists actions of

public servants, such as the destruction or hiding of information and the

disclosure of confidential or reserved information, that give rise to liability under the Federal Law of Administrative Responsibilities of Public

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21. LFPA Articles 33 and 34.

22. LFPA Articles 69-E, paragraph III, and 69-M through 69-Q.

23. See <http://www.cofemer.gob.mx/cofemer60/frmregistro.htm> (updated 18

December 2001).
Servants (Ley Federal de Responsabilidades Administrativas de los Servidores

Públicos). These liabilities are independent of any applicable civil or

criminal liability.

“Legal subjects” (or entities) covered by the Law include, without

limitation, the executive, legislative and judicial branches of government, as well as autonomous constitutional bodies and federal administrative courts. The Law establishes that all legal subjects must prepare

public annual reports on activities undertaken to ensure access to information.

The Law provides that all governmental information referenced

therein is public. “Information” is that contained in documents generated, obtained, acquired, processed or kept by legal subjects for whatever reason. “Documents” are defined very broadly to include any

record documenting the exercise of the powers or activities of legal subjects and public servants, regardless of its source or date of creation.

These records may be on any medium, whether printed, audio, visual,

electronic or holographic.

The Law defines reserved and confidential information, which

includes information so defined in any other law (see Section 8 below).

The Law establishes transparency obligations of the legal subjects

and lists in detail the classes of information that must be made available

to the public, including that relating to the organizational structure, the

powers of each administrative unit, a directory of public servants, services offered, allocated budget, audit results, permits issued, applicable

regulatory framework, contracts entered into and any other information

frequently requested by the public, as well as the electronic address for

filing information requests. Legal subjects must provide computers for

interested persons to access information directly or with a printout.

They must also provide any assistance users may require. The Law provides for the creation of “liaison units” and “information committees” in

each agency to undertake the procedures set forth in the Law. It provides

that these units and committees must be created using existing human,

material and budgetary resources, as they will not involve additional

appropriations.

Federal courts must publish their judgments, giving the parties the

opportunity to oppose the publication of their personal data. The Law

also requires pre-publication of draft legislation and administrative

provisions, except when doing so would compromise achieving the

purpose of the provision or in emergency situations. Information on

90 ACCESS TO ENVIRONMENTAL INFORMATION
transfers of public funds to political parties and persons must also be

made public.

The Law establishes the legal framework applicable to access to

information requests. Requests must be made in writing or in any other

form approved by the Institute (see below), and contain the name and

domicile (or other means of receiving notices) of the person filing the

request, a clear and precise description of the requested documents and

any other information that may facilitate the search, and the preferred

means of access to information. The liaison unit that receives the request

may ask for additional information or the correction of errors, within 10

business days following the filing of the request. It must also assist private individuals in preparing requests, especially those who cannot read

or write, and direct such person to the relevant entity or agency when the

information requested does not fall under its jurisdiction. In no case may

the delivery of the information be conditioned on how it will be used,

nor may the requestor be required to prove his or her interest in connection with the information. Entities and agencies are required only to

deliver documents actually found in their files. If the information is

already publicly available in printed media, the requester must be

informed of the source, place and form in which such information may

be consulted, reproduced or acquired.

The liaison unit must notify the requester of the cost and format of

the information as soon as possible, in no case more than 20 business

days after the request is received. This period may be extended by

another 20 days if the requester is notified of the reasons for the delay.

Legal subjects must endeavor to reduce the costs of information delivery, which may not exceed the sum of the cost of reproduction and the

cost of shipping. Access must be granted within a period of 10 business

days of such notification, provided that the requester pays the specified

fees. The Regulation will establish the manner and terms for the internal

processing of access to information requests, including a procedure to

correct any noncompliance by the entities and agencies in providing

access to the information.

The Law provides for the establishment of an information committee in each entity, whose functions will include reviewing documents

classified as reserved or confidential that are subject to an access request,

in order to confirm, modify or revoke the designation and grant or deny

access. Denials must provide justifications and notify the requester that

an appeal may be filed with the Institute. Notice of the committee’s decision must be given within the aforementioned periods.

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Failure to respond to an access request within the stated period is

deemed an acceptance of the request, in which case the entity is required

to supply the information within a period not to exceed 10 business days

and cover the costs associated with the reproduction of the materials.

The liaison units are not required to process offensive requests, to

deliver substantially identical information in response to the same person’s request, or to provide information that is already publicly available.

When an information committee denies access to information, or

when it gives notice that the requested documents do not exist, the

requester may file an application for review with the Institute within 15

business days following the date of notification. The application may

also be filed when the entity or agency does not disclose requested personal data or refuses to modify or correct them; when the requester disputes the timing, cost or format of disclosure; when the requester

considers the information provided to be incomplete; or when the information provided does not correspond to that requested.

The Institute is an agency under the federal public administration

that has autonomous operations, budget, and decision-making authority. It is responsible for the promotion and awareness of the right to

access information, for ruling on access to information denials, and

for protecting personal data held by the agencies and entities. Its five

commissioners are named by the federal executive branch and serve

nonreappointable seven-year terms. The Senate may veto nominations

by majority vote. The Law requires that the Institute report to Congress

annually, based on data submitted by the agencies and legal entities, on

the number of requests filed and the results thereof; response time; number and results of matters handled by the Institute; any complaints filed

with the internal control bodies; and any difficulties observed in compliance with the Law.

The Institute must correct errors in applications for review filed by

private individuals. The chairing commissioner of the Institute must

review the file and present a draft ruling to the full Institute within

30 days after the application is filed. During the proceedings, the applicant is assisted by the Institute, if necessary. The Institute must allow the

parties to present, verbally or in writing, any arguments supporting and

justifying their positions, as well as to advance their allegations. The full

Institute must issue a final ruling within 20 business days following the

submission of the draft ruling. Either of these periods may be extended

by another of equal duration, providing reasons. In its ruling, the Institute may dismiss or stay the proceedings, or confirm, revoke or modify

92 ACCESS TO ENVIRONMENTAL INFORMATION
the committee’s decisions. The rulings, which must be issued in writing,

may order that access be granted and establish compliance deadlines

and procedures to ensure the execution thereof. If the Institute does not

issue a ruling in the set period, the decision under appeal is deemed to be

confirmed. One year after the issuance of a notice of access denial, the

affected private individual may request that the Institute reconsider the

ruling, which it must do within a maximum period of 60 business days.

The Institute’s rulings are binding on legal entities and agencies,

but private individuals may contest them in court. The courts will have

access to reserved and confidential information when it is indispensable

for ruling on the matter and would have been admissible at trial.

1.5 General Law of Ecological Balance and Environmental

Protection

Prior to 1996, the LGEEPA provided certain instruments for the

disclosure of information on environmental management by the

Secretariat of Environment and Natural Resources (Secretaría de Medio

Ambiente y Recursos Naturales–Semarnat, as it is now called). The General

Situation of Ecological Balance and Environmental Protection24 and

Semarnat’s Ecological Gazette (Gaceta Ecológica) are instruments containing information on legal provisions, Mexican Official Standards

(Normas Oficiales Mexicanas–NOMs), decrees, regulations and other

administrative acts, treaties, international environmental documents

and environmental information of general interest published by the federal and local governments, independent of the publication thereof in

the DOF. The Ecological Gazette also publishes official information on

protected nature areas and the preservation and sustainable use of natural resources.25

The LGEEPA was reformed by the federal executive branch in 1996

to include, among other things, the right to environmental information,

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24. Environmental Statistics (Estadísticas del Medio Ambiente), Mexico, 1994, INEGISemarnat.

25. LGEEPA Article 159 bis 2. The Ecological Gazette has the legal nature of a government gazette pursuant to the Law of the Official Gazette of the Federation and

Government Gazettes (Ley del Diario Oficial de la Federación y Gacetas Gubernamentales), published on 24 December 1986. However, the purpose, contents and

scope of the Ecological Gazette are broader than those of other government

gazettes, as they solely focus on the “publication of accords, orders, rulings,

circulars, notifications, notices, and in general all communications issued by the

agencies of the federal executive branch, the publication of which is not to be made

in the Official Gazette of the Federation” (Art. 13).
as a mechanism to broaden citizen participation in environmental management.26

In accordance with this draft reform:

we work on the basis that objectively informed communities will make the

decisions that best protect their interests and rights, while being aware of

what happens in their surroundings. Given the prevailing environmental

conditions in some regions and zones in the country, communities in particular and society in general must be aware of what is happening and not

happening in environmental matters. Therefore, we must guarantee that

the responsible authority keeps such information available to the public.

The LGEEPA clearly specifies federal, state and municipal jurisdiction related to the policy on environmental information and awareness.27 It deals with access to information in two ways: the release of

environmental information as an obligation of the State, and the personal right to access information held by the administrative authority as

a subjective right of any person.

Release of environmental information

The LGEEPA requires that environmental authorities–namely

Semarnat, the decentralized agencies thereof,28 and the states, municipalities and Federal District29–make public any official information they

hold. It contemplates the creation of a National Environmental and

Natural Resources Information System (Sistema Nacional de Información

Ambiental y de Recursos Naturales–Sinia) to register, organize, update and

release national environmental information. Sinia is coordinated and

complemented by the National Accounts System under the National

Institute of Statistics, Geography and Information (Instituto Nacional de

Estadística, Geografía e Informática–INEGI).

The LGEEPA provides for Sinia’s integration of information on

inventories of natural resources in the national territory, mechanisms for

94 ACCESS TO ENVIRONMENTAL INFORMATION

26. The reform was published in the DOF on 13 December 1996.

27. Articles 5, 7, 8 and the recently reformed 159 bis of the LGEEPA; published in the

DOF on 13 December 2001.

28. The Semarnat Internal Regulations, published in the DOF on 4 June 2001, consider

the following to be decentralized agencies of Semarnat: the National Water

Commission, the Mexican Water Technology Institute, the National Institute of

Ecology, the Office of the Federal Attorney General for Environmental Protection,

and the National Commission for Protected Natural Areas.

29. With the LGEEPA reform of 31 December 2001, not only the Secretariat but also the

states, municipalities and the Federal District have the obligation of participating

in Sinia.
and results of air, water and soil quality monitoring, ecological enforcement, and information on the registers, programs and actions intended

to preserve ecological balance and environmental protection. As such,

Sinia is intended to incorporate relevant reports and documents arising

from scientific, academic, technical and other activities involving the

environment and the preservation of natural resources in Mexico by

national or foreign individuals or entities.

Until now, only isolated systems have been developed for the analysis, formulation, execution and assessment of environmental policies.

They operate independently, generally without any means to ensure

compatibility and integration, which would enable the effective sharing,

processing, analysis, transfer and release of information. Internet access

to these systems is available, although they are not listed as systems

related to Sinia.

The following information systems developed by the federal public administration are directly related to the Sinia network:

Environmental Indicators System (Sistema de Indicadores

Ambientales–Sidia). This system provides elements supporting the

daily environmental work of public servants and the general public,

making available environmental and natural resource information organized by date, location and topic. It uses simple indicators to assess the

operation of the system, at the same time seeking to give rise to the

broadest possible reflection on environmental themes and indicators

among interested users in the public and academic sectors and in the

general public.

National Forestry Information System (Sistema de Información

Nacional Forestal). This system provides information on the Mexican

forestry sector and its resources, the industry and the market for its

products, as well as the legal framework governing forestry usage and

conservation. It includes the forestry registry, inventory, production,

industry, protection, legislation, culture and programs.30

National Wildlife Information Subsystem (Subsistema Nacional

de Información sobre la Vida Silvestre). As provided in the General

Wildlife Law (Ley General de Vida Silvestre–LGVS), this subsystem regisMEXICO 95

30. Article 10 of the Forestry Law establishes that Semarnat is responsible for integrating and updating information on the country’s forestry resources. It also

determines the data to be recorded in the National Forestry Registry, which is integrated into Sinia, along with updated results and zoning from the National

Forestry Inventory.
ters, organizes, updates and releases information on the conservation

and sustainable use of the nation’s wildlife and habitats.31

Mexican Biodiversity Information Network (Red Mexicana de

Información sobre Biodiversidad–Remib). 32 This network acts as a

directory for information dispersed throughout academic and governmental institutions. It facilitates the exchange of information through

electronic networks and improves the amount and availability of information, in addition to keeping it up-to-date. It also provides leadership

in biodiversity understanding and communication through a computerized data network.

National Biodiversity Information System (Sistema Nacional de

Información sobre Biodiversidad–SNIB). This system generates knowledge necessary for the conservation, management and sustainable use of

biodiversity through the compilation and systematization of information.

National Fisheries Registry (Registro Nacional de Pesca).33 The

Fisheries Law (Ley de Pesca) establishes the obligation to keep a free public registry of individuals and entities that carry on this activity under a

concession, permit or authorization, except for individuals who fish for

sport or recreation. In addition, vessels must register in the National

Public Maritime Registry (Registro Público Marítimo Nacional), as must

aquaculture units, fishing schools and research or teaching institutions

concerned with aquatic flora and fauna. The Fisheries Regulations establish the Secretariat’s obligation to collect technical, scientific, administrative and statistical information to update the National Fisheries Registry

and the National Fisheries Roster (Carta Nacional Pesquera).34

Public Water Rights Registry (Registro Público de Derechos de

Agua). In accordance with the provisions of Article 30 of the Law of

National Waters (Ley de Aguas Nacionales–LAN) and Article 57 of the

Regulations thereunder, since 1992 this registry has recorded the concession and allocation titles and permits for wastewater, title transfers,

changes in characteristics, the suspension and termination thereof, and

certificate transfer and issuance. The purpose of the registry is to estab96 ACCESS TO ENVIRONMENTAL INFORMATION

31. LGVS Article 49.

32. Created during the first meeting of Directors of Institutions Involved in the Study

of Biodiversity, by agreement with the directors of the institutions and the National

Commission for the Knowledge and Use of Biodiversity (Comisión Nacional para el

Conocimiento y Uso de la Biodiversidad–Conabio), as established in the Oaxaca Declaration.

33. Article 20 of the Fisheries Law

34. Article 111 of the Regulations to the Fisheries Law.
lish greater legal certainty in this field and support the creation of a

potential water market. The National Water Commission (Comisión

Nacional del Agua–CNA) is responsible for its operation. The CNA web

page <http://www.cna.gob.mx> contains information on titles

recorded in the registry. Information on specific water usage titles may

be consulted at the CNA, and a certified copy of the information may be

obtained upon payment of a fee.

Municipal Information Database System (Sistema de Información Municipal de Base de Datos). This system is an information archive

with around 27,000 variables generated by census projects and the

country’s administrative records. It brings together census results and

administrative records from INEGI containing national, state and municipal information in various areas, including environmental data. It

enables the correlation of results from each to build derivative indicators

and offers the possibility of creating topical maps to illustrate such indicators.

Economic Information Bank (Banco de Información Económica–BIE). The BIE uses a hierarchical model of successive descriptions.

It includes more than 38,000 historical series with Mexican economic

information, market indicators, data for all economic sectors, as well as

regarding employment and unemployment, prices, foreign trade, and

the environmental situation.

Program for the Access and Use of Pollutant Release Information

(Programa para el Acceso y Uso de Información sobre Emisiones Contaminantes). The program promotes access to and use of pollutant release

information by Mexican citizens and environmental groups. It carried

out 14 case studies on environmental information requests to the

government and developed a manual on the accessing and usage of

pollutant release information.35

Pollutant Release and Transfer Register (PRTR). See Section 7

below.

Air Monitoring System for the Mexico City Metropolitan Area

(Sistema de Monitoreo Atmosférico de la Zona Metropolitana de la

Ciudad de México–Sima). Sima continuously collects information on the

types of pollutants released in the different urban-industrial areas and

the weather conditions that may contribute to the improvement or worsMEXICO 97

35. Manual for the access and use of information on pollutant releases, Presencia Ciudadana,

Mexico, 1999, p. 7.
ening of air conditions in the metropolitan area. To achieve this goal,

Sima is composed of three networks: the Automatic Atmospheric Monitoring Network (Red Automática de Monitoreo Atmosférico–Rama), consisting of 32 stations (21 in the Federal District and 11 in Mexico State);

the Manual Atmospheric Monitoring Network (Red Manual de Monitoreo

Atmosférico), which collects information on suspended particles and

elements contained therein; and the Meteorological Network (Red

Meteorológica), with 10 monitoring stations sending information in real

time to the Central Control System. This information is used along with

that provided by the National Weather System to assess air quality during normal and extraordinary meteorological conditions.36

Air Quality Metropolitan Index (Índice Metropolitano de la

Calidad del Aire–Imeca). Imeca helps interpret air pollution concentration information, and establishes criteria for assessing air quality and

the health effects of different pollutant concentrations.

Environmental Rules Compliance Index (Índices de Cumplimiento de la Normatividad Ambiental–ICNA). The ICNA is a combination of indices that measure compliance with various environmental

rules. These indices support public awareness of the level of compliance

for each pollution source and to incorporate parameters encouraging

better compliance. The ICNA also allows the efficiency of pollution

control programs to be evaluated by operators of the sources and by

competent authorities. The indices cover Air Emissions, Hazardous

Waste Generation, Hazardous Waste Services, Noise Emissions, Biological-Infectious Hazardous Waste Generation, High-Risk Activities, and

Environmental Impact.

Environmental and Natural Resources Rules Compliance Information System (Sistema de Información sobre el Cumplimiento de la

Normatividad Ambiental y los Recursos Naturales). It should be noted

that the Environmental Legislation Documentation and Information

Center (Centro de Documentación e Información sobre Legislación Ambiental–

CDIA) was created to support Profepa’s management of information

generated within its jurisdiction.

Environmental Accounts System (Sistema de Cuentas

Ambientales). Complementary to the National Accounts System, this

system describes the interaction of economic activities and the environment in order to analyze economic policies. Another information sys98 ACCESS TO ENVIRONMENTAL INFORMATION

36. Manual for the access and use of information on pollutant releases, Presencia Ciudadana,

Mexico, 1999, pp. 109-110.
tem, the Ecological Net Domestic Product (Producto Interno Neto

Ecológico), quantifies the cost of environmental pollution and the depletion of natural resources caused by economic activities in a given year.

INEGI includes the Ecological Net Domestic Product in the National

Accounts System.37

Geographical Information System for Ecological Control (Sistema de Información Geográfica para el Ordenamiento Ecológico–

Siore). Siore supports the development and analysis of environmental

information on which ecological control is based.

Information System for Protected Nature Areas (Sistema de

Información de las Áreas Naturales Protegidas). The INE web page

includes information on the category, state and name of the protected

nature areas in Mexico, as well as those given priority for conservation

along with reefs and marine areas. It also includes maps of protected

nature areas, management programs, decrees and ecotourism programs

for Mexico’s protected nature areas.

Environmental Laboratories and Monitoring. The Air Monitoring System for the Valley of Mexico Metropolitan Area (Sistema de

Monitoreo Atmosférico de la Zona Metropolitana del Valle de México–

SMAZMVM) and its Technical Commission have been in place since

1984, including air criteria, solar radiation, other toxic elements, suspended particles and hydrogen sulfide, among the most important

aspects. The monitoring sites are operated by various institutions such

as the Acatlán National School for Professional Studies of the National

Autonomous University of Mexico (Universidad Nacional Autónoma de

México–UNAM) and the Mexican Petroleum Institute.

Sinia provides a considerable amount of information and data,

although taken together, these databases and web pages lack systematic

and effective coordination.

In the last two years, Semarnat has held environmental information fairs to “report on the situation of existing information so that society may demand it, seeking to orient and encourage changes in our

social and economic activities as producers and consumers, leading on a

path of sustainable development.” Regional information fairs also have

begun to take place.

In addition to offering lectures on environmental topics, these fairs

also invite academic institutions, nongovernmental organizations and

MEXICO 99

37. LGEEPA Article 159 bis, third paragraph, and Article 15, paragraph XIX.
different state governments and environmental secretariats to provide

information on the environment and natural resources.

The CDIA (see above), under INE, is geared toward the general

public to promote environmental information to comply with the public’s right to objective and timely information, as provided in LGEEPA

Title V.38 The CDIA contains environmental laws, information on natural resources, air and climate, health, environmental education, clean

technologies, etc.

Communication with Citizen Attention Coordination of the Office

of the President has been strengthened in order to provide timely and

efficient citizen attention.39

The LGEEPA provides for the creation of an Environmental Information System for the Federal District that, in coordination with Sinia, is

intended to register, organize, update and release Federal District environmental information.40

The Environment Secretariat of the Federal District and the delegations must issue an annual public report on the state of the environment

and natural resources under their respective jurisdictions.

The Mexico City government has an Environmental Information

Center,41 which compiles, processes and releases the city’s environmental information. It consolidates and assembles environmental information generated in the Mexico City Metropolitan Area, and operates as a

support tool for environmental management and decision-making.

The LGEEPA Regulation on Air Pollution Prevention and Control

sets forth Semarnat’s obligation to establish and maintain a National Air

Quality Information System (Sistema Nacional de Información de la Calidad

del Aire).42 The Hazardous Waste Regulation establishes a similar obligation for the Hazardous Waste Generation Information System (Sistema

de Información sobre Generación de Residuos Peligrosos).43

100 ACCESS TO ENVIRONMENTAL INFORMATION

38. <http://www.ine.gob.mx/dggia/cent_doc/cdia.htm>.

39. First Report of Semarnat Activities, 2001, General Bureau of Statistics and Environmental Information, Mexico.

40. Article 76 of the Environmental Law of the Federal District.

41. <http://sma.df.gob.mx>.

42. Articles 41 through 45 of the LGEEPA Regulations on Air Pollution Prevention and

Control.

43. Article 4 of the LGEEPA Regulations on Hazardous Waste, published in the DOF

on 25 November 1988.
Individual right to access to environmental information

Pursuant to Article 159 bis 3 of the LGEEPA, all individuals and

entities are entitled to have Semarnat and the state, Federal District and

municipal authorities make environmental information available upon

request , regardless of whether they are directly affected by the matter in

question.44 Section 8 below analyzes a series of exceptions to the right to

information.

The LGEEPA governs environmental matters under Article 8 of

the Constitution, discussed above, with regard to the right of petition. It

determines the type of information that may be requested, the formalities to be followed, and the cases in which the authority may deny such

information. It considers environmental information to be “written,

visual or database information held by environmental authorities concerning water, air, soil, flora, fauna and natural resources in general, as

well as activities or measures that affect or may affect the like.”45

Formalities for accessing information under the LGEEPA are minimal.46 The request must be filed in writing, clearly specifying requested

information and the reasons for the petition, and indicating the name or

business name and the domicile.

A novel aspect of the LGEEPA is the inclusion of an obligation for

the environmental authority to respond to petitions within 20 days. In

the Mexican legal system, authorities usually have three months to

respond.47 Article 159 bis 5 of the LGEEPA states that when the authority

MEXICO 101

44. This legal provision, contained in LGEEPA Article 159 bis 3, is in concordance with

the criteria held by the courts in the sense that the exercise of the right of petition

does not require evidence of legal interest. The following legal precedent applies:

“PETITION, RIGHT OF. The argument is inaccurate that the right of petition, contained in Constitutional Article 8, is subject to the petitioner’s proof of legal interest

in the object of his petition, as the guarantee under said provision is only conditioned on its filing in writing, in a peaceful and respectful manner.” Federal

Judicial Weekly, vol. LXXVII, third part, p. 25, Injunction review 6176/63, José

Guadalupe Arontes Blancas, 28 November 1963, 5 votes. However, the basic diagnostic and preventive and corrective measures to be undertaken as a result of

environmental audits are made available only to those who are or may be directly

affected. Furthermore, confidentiality must be respected pursuant to Article 52 of

the Industrial Property Law.

45. LGEEPA Article 159 bis 3.

46. Right of petition. Constitutional Article 8 does not subordinate the response or any

other aspect of the petition guarantee to the petitioner’s compliance or noncompliance with determined regulatory requirements. Federal Judicial Weekly, vol. XIX,

third part, p. 63, Injunction review 4916/58, Juan N. Canales, 19 January 1959, unanimity of four votes.

47. LFPA Article 17.
denies a request, the response must state the reasons for the determination. However, the LGEEPA provides that if the environmental authority does not issue its response in writing within the aforesaid period,

“the petition shall be understood to be denied.” This could allow the

authority to let the period run out and thus avoid providing a legal reason for denying the requested information.48 In any case, if the information request is denied, the private individual can apply directly to the

administrative courts seeking nullification or to the federal courts to dispute the basis of the deemed denial.49

The LGEEPA establishes the right of private individuals to file an

application for review when they consider that the authority is affecting

their interests in denying access to the requested information. In addition to this administrative remedy, private individuals have other legal

options for demanding disclosure of information: an injunction (amparo)

requiring the authority to respect the guarantees set forth in Constitutional Articles 6 and 8, and a criminal complaint under the Federal Penal

Code (Código Penal Federal), which classifies a public servant’s undue

impediment to filing or processing a request as a criminal abuse of

authority.50

Lastly, it should be noted that the right to information implies the

obligation to use it properly. In accordance with Article 159 bis 6 of the

LGEEPA, the misuse of such information leads to civil liability for damages.

102 ACCESS TO ENVIRONMENTAL INFORMATION

48. The lack of legal basis and reasoning in a deemed denial cannot be disputed in court,

as it is not actually an act of the authority and therefore the formality requirements

for legal acts do not apply. Only the basis of the denial, and not the lack of formality,

may be disputed. See the thesis of the Second Collegial Administrative Court on the

First Circuit. “DEEMED DENIAL. CANNOT BE DISPUTED ON THE ABSENCE

OF BASIS AND REASONING. The ruling of deemed denial, a legal fiction arising

from the silence of the administrative authority, is intended to constitute an element of action the exercise of which allows the actor to initiate a nullification

proceeding, in lieu of an express act. Therefore, even when the negative silence constitutes the disputed act, there is no real administrative ruling, as it lacks the will of

the authority that issues it. It is thus not subject to interpretation or appeal, as it

lacks the constitutional requirements of basis and reasoning and is only a fiction

arising by will of the citizen, and can only be examined in terms of its fundamental

basis.” Direct injunction l22/91, Fivisa, S.A. de C.V., 25 April 1991. Unanimity of

votes. Author: Carlos Amado Yáñez. Clerk: Mario de Jesús Sosa Escudero.

49. In this case, the review appeal set forth in the LGEEPA, with the same authority that

issued the deemed denial, does not apply, considering the decision of the Second

Collegial Court on the Sixth Circuit. “DEEMED DENIAL, DISPUTE NOT APPLICABLE WITH THE SAME AUTHORITY THAT ISSUED IT.” Direct injunction

394/91, Gloria Violeta Contreras, 9 May 1991. Unanimity of votes. Federal Judicial

Weekly, eighth period, vol. XIV, July, second part, p. 671.

50. Article 215, paragraph III.
1.6 Environmental Law of the Federal District

The Environmental Law of the Federal District51 clearly establishes

the “duty of environmental authorities of the Federal District to guarantee that citizens have access to information on the environment and the

participation of society in general,”52 in matters governed by the Law.

In the chapter on “Environmental Information,” the Law guarantees the right of all persons to access any environmental information

requested in writing.53 (Section 8 below discusses a series of exceptions

to the right to information.)

The Law establishes that where the authority denies an information request, it must state the reasons for such determination. It establishes a response period of no more than 20 business days from the date

on which the request was received.54

If the authority does not respond within the allotted period, the

petitioner should consider the request denied pursuant to Article 89,

paragraph II and following of the Law, and may file the corresponding

measures of defense.

2. ENVIRONMENTAL IMPACT ASSESSMENT

This section discusses the laws, regulations and policies on public

access to information derived from environmental impact assessment

(EIA) procedures. It covers the LGEEPA and the new environmental

impact regulation thereunder,55 as well as the environmental laws of

some Mexican states.

Environmental jurisdiction is exercised concurrently at the three

levels of Mexican government: federal, state and municipal. The

LGEEPA distributes jurisdiction as follows: the federal government

has jurisdiction over EIAs for works or activities expressly referenced

in LGEEPA Article 28; the states are responsible for EIAs for works

or activities not expressly reserved for federal jurisdiction under the

MEXICO 103

51. Published in the Official Gazette of the Federal District (Gaceta Oficial del Distrito

Federal) no. 6, 13 January 2000.

52. Article 18, paragraph IV of the Environmental Law of the Federal District.

53. Article 75 of the Environmental Law of the Federal District.

54. Article 77 of the Environmental Law of the Federal District.

55. Published in the DOF on 30 May 2000.
LGEEPA; and the municipalities participate in EIAs for works or activities under state jurisdiction when undertaken within their territorial

jurisdictions.56

Under the most recent LGEEPA reform,57 Article 11 allows for

coordination agreements between the federal and state governments so

that the states may take over EIAs in areas that, until December 2001, fell

exclusively under federal jurisdiction. This coordination excludes strategic works and activities, which remain reserved for the federal government.

2.1 Federal law

Right to access to information

The LGEEPA defines the EIA as an administrative procedure

under Semarnat responsibility, which the authority uses to “establish

the conditions applicable to the undertaking of works and activities that

may cause ecological imbalance or exceed the limits and conditions

established in the applicable provisions for the protection of the environment and the preservation and restoration of the ecosystems, in order to

prevent or reduce to a minimum the negative effects thereof on the environment.”58

The LGEEPA establishes the compulsory nature of prior environmental impact authorizations to carry on works or activities that cause

or that may cause significant effects on the environment or natural

resources, which cannot be properly regulated by instruments such as

standards, licenses, environmental rules or others. To obtain an environmental impact authorization, interested parties must file an Environmental Impact Statement (EIS). The LGEEPA contains a specific list of

those works or activities whose environmental impacts are subject to

assessment by the federal government.

Public participation in EIAs was broadened under the 1996

LGEEPA reform.

Article 34 of the LGEEPA states that once an EIS is received and

incorporated into the respective file, the authority shall make it available

104 ACCESS TO ENVIRONMENTAL INFORMATION

56. LGEEPA Article 35 bis 2 allows for a more precise definition of the allocation of

competencies among the federal, state and municipal governments.

57. Published in the DOF on 31 December 2001.

58. LGEEPA Article 28.
to the public. Semarnat publishes the environmental impact authorization request in the Ecological Gazette.59 Within five days from the date

the EIS is filed with the Secretariat, the project proponent must also file,

at its own expense, a project summary for the work or activity in a state

newspaper with wide circulation.

Within 10 days after the publication of the project summary, any

citizen may request that the Secretariat make the EIS publicly available

in the corresponding state.

The public consultation on the EIA process, provided for in Article

34 of the LGEEPA is a major reform in the area of public environmental

participation. It should be noted that this public consultation process

needs to be regulated.

There are some restrictions on accessing information filed by the

proponents of the work or undertaking. Upon filing the EIS, they may

request that information included in the file be reserved, if its public disclosure could affect industrial property rights and the confidentiality

of commercial information. This provision is congruent with the

supplementive application of the LFPA.60

Article 34 states that the Secretariat, in conjunction with local

authorities, may organize public information meetings at which the proponent may explain the technical environmental aspects of the work or

undertaking. To carry out this function, the General Bureau of Environmental Impact and Risk is responsible for “calling or conducting, when

deemed necessary, technical and public hearings on projects entering

the environmental impact assessment process.”

Within 20 days from the date on which the Secretariat makes the

EIS publicly available, any interested person may suggest the establishment of additional prevention and mitigation measures and any observations deemed pertinent.

MEXICO 105

59. This publication in the Ecological Gazette is also mentioned in LGEEPA Article 31,

last paragraph: “The Secretariat shall publish, in its Ecological Gazette, the list of

preventive reports filed pursuant to this Article, which shall be publicly available.”

60. The LFPA states in Article 33: “The interested parties in an administrative procedure have the right to know, at any time, the status of their proceeding through

timely information collected at the corresponding offices, except when they contain information on national defense and security, they related to matters protected

by commercial or industrial secrecy, where the interested party is not the named or

affected person in the matter, or in the case that a legal provision so prohibits.”
The Secretariat adds to the file observations made by interested

persons and records the public consultation process and the results of

observations and proposals made in writing.

The inclusion of observations and proposals from public consultations is, in the end, a decision made at the discretion of the environmental authority. Furthermore, not all requests from interested parties, in

their capacity as members of the community, will necessarily lead to a

public consultation, as the environmental authority considers the particular circumstances of each case and decides accordingly.

It should be noted that this mechanism for making information

publicly available also applies to preventive reports. These reports are

filed for works or activities that are exempt from EISs under the Law.

The last paragraph of Article 31 of the LGEEPA states that “the Secretariat shall publish in its Ecological Gazette the list of preventive reports

filed pursuant to this article, which shall be made publicly available.”

However, the right to access information applies only to the consultation

stage of the reports and files.

Access policies

The National Development Plan (Plan Nacional de Desarrollo) for

2001-2006 provides that the strategy in the area of environmental regulation will be to focus on consolidating and integrating existing legislation.

In particular, it seeks to strengthen the application of EIA studies and to

improve rules for hazardous waste handling.61

The National Environment and Natural Resources Program

2001-2006 states that ordinary citizens will have access to information

that allows them to know about the state of the environment in which

they live and the manner in which it affects their economic and social

well-being. It provides that citizen complaints will always be attended

to. It notes that federal management of the environmental sector may be

assessed by the public through the use of environmental performance

indicators, as Semarnat has established indices and goals allowing for

the clear evaluation of performance and facilitating accountability

regarding its management.

The federal government unit responsible for EIAs is the General

Bureau of Environmental Impact and Risk, empowered under Article 25

106 ACCESS TO ENVIRONMENTAL INFORMATION

61. National Development Plan 2001-2006, p. 122.
of the Semarnat Internal Regulation to enforce the general policy in this

area, to rule on EISs and reports, and to issue, as required, authorizations

for the undertaking of work or activities under federal jurisdiction. It

also oversees the public consultation process regarding projects submitted for EIA procedure and, as applicable, organizes the participation

of the administrative units having jurisdiction within Semarnat as

provided in applicable statutory provisions. The General Bureau also

makes preventive reports and EISs publicly available and answers the

publication of the relevant information on the work or activity in question in the Ecological Gazette.

Ease of access

Most executive summaries of draft EIAs may be consulted at the

INE offices and via the Internet.62

Access periods

EIA reports may be consulted at any time after Semarnat assembles the file. In addition, when a public consultation is conducted under

LGEEPA Article 34, the proponent of the work or undertaking must

publish a project summary in a state newspaper with wide circulation,

within five days following the filing of the EIS.

Citizens also may request that Semarnat make the EIS publicly

available in the respective state, within 10 days from the publication of

the project summary. In the case of a public consultation, within 20 days

after Semarnat makes the EIS publicly available, any interested person

may propose the establishment of additional prevention and mitigation

measures as well as any observations that person deems relevant.

2.2 State law

Right to access

Mexico’s 31 states and the Federal District have their own environmental protection laws that provide for and regulate the EIA process.

With the exception of three states, all of these laws establish the right to

information resulting from such a process.63

MEXICO 107

62. <http://www.ine.gob.mx/INE/documentos/dgoeia/mias.html/>.

63. Colima, Nayarit and Tlaxcala.
Within the EIA procedure, the Environmental Law of the Federal

District sets out a procedure for accessing documents filed with the

Environment Secretariat of the Federal District:

Article 49.- Once the competent authority receives an environmental

impact statement, within the five following business days it shall assemble

the respective file and make it publicly available, in order that it may be

consulted by any person.

Proponents of the work or undertaking may request that information

included in a file be reserved, if its public disclosure could affect industrial

property rights and the confidentiality of commercial information provided therein.

Article 50.- The competent authority may undertake a public consultation

in accordance with the provisions of the Citizen Participation Law and the

Regulation under this law.

Article 51.- The proponent must publish, at its own expense in a nationally

circulated newspaper, a summary of the project. Persons participating in

the public consultation may present their observations or comments to the

Secretariat in writing, within five business days following the call for consultation.

Once observations and comments are presented, the Secretariat shall

weigh and consider them at the time it rules on the environmental impact

authorization.

As applicable, the Secretariat must respond to interested persons in writing, justifying its reasons for not having considered the comments to

which the first paragraph of this article refers in the ruling. Affected parties may avail themselves of the remedy, to which this Law refers, to

contest the resolution by which the Secretariat puts an end to the environmental impact assessment procedure.

Article 52.- In performing the environmental impact assessment, the competent authority shall take into account the territory’s ecological control

programs, urban development programs, declarations of protected nature

areas, management programs, the applicable standards and all other

applicable legal provisions.

Persons who feel that their observations were not adequately studied or

considered may apply for review proceedings under the Law of Administrative Procedure of the Federal District.

The states of Baja California Sur, Campeche, Coahuila, Chiapas,

Guanajuato, Chihuahua, Guerrero, Hidalgo, Morelos, Nuevo León,

108 ACCESS TO ENVIRONMENTAL INFORMATION
Puebla, Querétaro, Sinaloa, San Luis Potosí, Tabasco, Veracruz, Yucatán

and Zacatecas also include provisions regulating access to information

in the EIA process. For example, the Ecology Law for the State of

Guanajuato provides:64

Article 38.- Once the State Ecology Institute assembles the file on the environmental impact request, it shall make it publicly available in order that it

may be consulted by any person.

The proponents of a work or undertaking may require that information

included in the file be reserved, if its public disclosure could affect industrial property rights and the confidentiality of commercial information

provided therein.

The environmental legislation of the states of Sonora and

Tamaulipas contains similar provisions.

Opportunities to access information in Baja California are broader,

as files are made publicly available at government offices and the complete file must be published in the official state journal. Conversely, Article 54 of the Baja California state environmental impact regulations

restricts access to information by requiring that the interested person

demonstrate his or her legal interest and the need for access to the information contained in the files. To maintain the secrecy of any part of the

information, those interested in doing so must indicate clearly to the

bureau, in a section of the document, which information constitutes a

technical secret, the publication of which could affect industrial property rights or legal interests of a commercial nature. In such cases, information must be presented in a manner that allows it to be examined,

with regard to the environment or public health, without causing harm

to the interested party.

In order to broaden access to information, the Law of Ecological

Balance and Environmental Protection of the State of Quintana Roo65

provides that proponents of works or undertakings must file an EIS with

copies for public consultation at the official libraries of each municipal

government. Environmental groups that operate regularly in the state

may request copies of the EIS files from the respective libraries or from

the Department of Public Works and Urban Development, which must

provide them within five days.

MEXICO 109

64. Published in the State Official Gazette on 8 February 2000.

65. Published in the State Official Gazette on 14 April 1989.
Access policies

The policy in Mexico’s states is to allow public access to information filed in the EIA procedure, in all cases providing for the reservation

of certain information, except in three states that do not regulate these

matters.

Ease of access

All states in the country have established authorities responsible

for administering and enforcing environmental laws in force in their

respective territories. However, ease of access is still limited because the

information is concentrated in government offices located in the capital

cities. The information must be accessed personally at such offices,

requiring persons to travel to state capitals to view the files. In the state of

Aguascalientes, the Law of Ecological Balance and Environmental Protection provides:

Article 92.- Once the request and the documentation to which the preceding articles are filed, the Secretariat shall notify the corresponding

municipal authorities of the existence of the application, requesting their

point of view on the matter.

The opinion of the municipal government must be expressed to the Secretariat within 10 business days from the day following the day on which the

notice is received.

If the municipal government does not issue any opinion within this time

period, it shall be understood not to have any objections regarding the

matter.

Considering the above, efforts are needed to forward the information to each state’s municipalities and to create information systems

enabling online access. The costs of these mechanisms are an impediment to their timely completion.

Access periods

In the federal sphere, environmental impact information may be

consulted at any time after the proponent of the work or undertaking

submits it to the authority and the authority includes it in the respective

file. Thus, the public has access to project information only after the EIA

is finished, making it impossible to have any influence over the contents

of the assessment.

110 ACCESS TO ENVIRONMENTAL INFORMATION
On the other hand, as an example at the local level, the Federal District has specific provisions allowing for public comment on EISs within

five business days following the publication thereof.

Cost

The cost of publishing an EIS is borne by the proponent of the work

or undertaking and consultation of the information is free. A reduced

cost applies only when copies of the files are requested.

3. PERMITS AND AUTHORIZATIONS

A permit, license or authorization is the act by which an administrative authority grants the power or right to a private individual to

carry on works or activities.

Generally, the procedure to grant permits and authorizations

involves filing the request and complying with the requirements set

forth in the law and regulations. The interested person is notified

directly of the administrative ruling for the granting or denial thereof,

and no public announcement is made in any medium.

Notwithstanding the above, it is possible to access formal documents containing the ruling as well as documents filed by the interested

person. As discussed above, Article 159 bis 3 of the LGEEPA entitles all

persons to receive any environmental information requested from the

authorities, as provided in the Law. This same provision defines environmental information as any “written, visual or database information

held by the environmental authorities regarding water, air, soil, flora,

fauna and natural resources in general, as well as activities or measures

that affect or may affect them.” The object of the right of access is thus the

information held in public offices, given that files, records and documents kept by the administration are not the only instruments that

enable the exercise of that right, but also qualify as property in the public

domain pursuant to the General Law of National Properties (Ley General

de Bienes Nacionales).66

Environmental laws do not provide for public participation in the

granting of permits and authorizations, except for public consultation

on EIAs as discussed in Section 2.

MEXICO 111

66. Article 2, paragraph XI of the General Law of National Properties, published in the

DOF on 8 January 1982.
According to the recently reformed Article 109 bis of the LGEEPA,

Semarnat, the states, the Federal District and the municipalities are

required to create an information system based on, among other things,

the environmental authorizations, licenses, concessions or permits processed by the respective authorities. This is the case of the abovementioned Federal Registry of Procedures and Services (RFTS).

Various states also have registries of procedures and services.

In addition to these registries, the various reports submitted by

Semarnat contain overall numbers permits, licenses and authorizations

issued. These include the Report on the General Situation of Ecological

Balance and Environmental Protection, presented twice a year, and the

activity reports submitted each year by Semarnat.

The Semarnat web page contains information on the granting of

permits and authorizations in some areas, as described below.

Industrial inspection, regulation and oversight

This section contains information on the number of operating

licenses issued to fixed sources under federal jurisdiction by state, for the

period 1988-1999; the number of comprehensive environmental licenses

issued to fixed sources under federal jurisdiction by state, for the period

1997-1999; and the number of authorizations issued to companies for the

handling of hazardous industrial waste, for 1999.

Wildlife

Information is provided on:

• The areas of registered Conservation, Handling and Sustainable Use

Units, by type of property;

• Permits issued for sport hunting during hunting seasons, 1994-1998;

• Number of permits issued for the capture of ornamental birds and

songbirds, by state, 1994-1998;

• Issuance of certificates under the Convention on International Trade

in Endangered Species of Wild Fauna and Flora (CITES), 1996-1998;

112 ACCESS TO ENVIRONMENTAL INFORMATION
• Permits issued for scientific collection, by state, 1996-1998; and

• Permits to carry on activities in protected nature areas.

Cost

Access to registries is free. Where copies of the data entered in the

records are required, the requester must pay the reduced fee.

4. PLAN AND PROGRAM PROPOSALS

This section describes mechanisms for public access to proposed

plans and programs of the environmental authority.

Right to access

Constitutional Article 26 expressly provides the State with powers

to carry on planning activities, and establishes the bases for public, private and social involvement in the National Participative Planning System (Sistema Nacional de Planeación Participativa).67This article provides:

Planning shall be democratic. Through the participation of the various

social sectors, the aspirations and demands of society shall be collected to

include them in the development plan and programs. There shall be a

National Development Plan binding upon the programs of the Federal

Public Administration...

The National Participative Planning System is thus conceived as a

social participation process in which the reconciliation of interests and

national efforts enable the achievement of objectives supported by society as a whole.68 It should be noted that when, as regards integrating

social participation into plans and programs, there are no mechanisms

forcing the government to carry out such integration. However, there

has been great improvement in the last few years, as society begins to

participate more in the National Development Plan and public comment

is sometimes requested on legislative drafts.

MEXICO 113

67. With this system the federal government seeks to promote a process for the definition, agreement, follow-through and assessment of the policies and actions of the

federal public administration, in addition to including public opinion through citizen participation mechanisms.

68. A clear example is the National Development Plan 2001-2006, in which citizen participation is done through mail and Internet surveys and in citizen participation

meetings.
The Planning Law (Ley de Planeación)69 regulates Constitutional

Article 26 and is intended, among other things, to establish the basic

standards and principles governing national development planning,

which directs the activities of the federal public administration, and to

set the basis for promoting and guaranteeing the democratic participation of the various social groups, through their representative organizations, in the development of government plans and programs. Article 13

of the Law states that the National Democratic (Participative) Planning

System, and the planning process applicable to the development, implementation, control and assessment of the Plan and programs, shall be set

out in regulations. However, in November 2001, there is still no regulation for this Law.

The National Development Plan specifies the national objectives,

strategy and priorities for the country’s overall development; budgeting

of resources to be allocated for such purposes; instruments and persons

responsible for the execution thereof; and global, sectoral and regional

policy guidelines. Its provisions refer to the whole of economic and

social activity. It applies only to plans and programs within the scope of

the following categories: national, sector, institutional, regional or special in which the federal executive branch is required to undertake

national development planning with the democratic participation of

social groups.

Article 20 of the Planning Law states:

The National Democratic Planning System shall include the participation

and consultation of the various social groups, in order that the people may

express their opinions for the development, updating and execution of the

Plan and programs to which this Law refers.

The representative organizations of worker, peasant and popular groups;

academic, professional and research institutions; business organizations;

and other social groups, shall participate as permanent consultative bodies in the aspects of democratic planning related to their activities, through

popular consultation forums organized for such purpose. The Deputies

and Senators of Congress will also participate in these forums.

For this purpose, and in accordance with the applicable laws, the System

must provide for the organization and operation, formalities, timing and

terms applicable to participation and consultation in national development planning.

114 ACCESS TO ENVIRONMENTAL INFORMATION

69. Published in the DOF on 5 January 1983.
For its part, the LGEEPA establishes that the federal government

must promote society’s participation in the planning, execution, assessment and oversight of environmental and natural resources policy. For

this end, Article 158 paragraph I states that Semarnat “shall call, under

the National Democratic Planning System, on worker, business, peasant, farm, fishery and forestry organizations, agrarian communities,

indigenous communities, educational institutions, nonprofit social and

private organizations and all other interested persons to express their

opinions and proposals.”

Although the public has the right to participate in the planning

process through the popular consultation forums, it has no such right to

participate in the drafting of the plans and programs. The LGEEPA definition of environmental information does not include environmental

plans or programs. The inclusion of plans or programs in information

subject to public disclosure would facilitate the clarification or modification of a proposal at the development stage, instead of back-dating the

administration’s actions because of changes from the final draft released

to the public.

Access policies

Article 32 bis, paragraph XVII, of the Organic Law of Federal Public Administration empowers Semarnat to “[p]romote the participation

of society and the scientific community in the development, enforcement and oversight of environmental policy and to agree on actions and

investments with the social and private sectors for environmental protection and restoration.” Article 159 of the LGEEPA promotes the creation of “consultative bodies in which the entities and agencies of the

public administration, academic institutions and social and business

organizations shall participate.”

For this purpose, Semarnat has developed a system of social participation at the various levels of public inquiry, beginning with daily local

attention and interaction and the presence and organization of state

forums and councils. These local bodies are related to the national technical (topical) councils on soil, forestry and protected nature areas.

Sustainable Development Advisory Boards (Consejos Consultivos

para el Desarrollo Sustentable–CCDS) were created in 1995, with one

national and four regional bodies based on criteria intended to ensure

broad representation of civil society and the presence of renowned Mexicans from the governmental, academic, social, nongovernmental and

private business sectors.

MEXICO 115
More recently, a notice was issued in September 1998, in accordance with the CCDS regulations, announcing that half of the social,

business, academic and nongovernmental representatives would be

replaced. The essential requirements for sitting on these boards were

that the individual be a Mexican citizen in full exercise of his or her

rights, with recognized scientific, technical, academic or social merit in

the fields of environmental protection and sustainable use of natural

resources, and to be named by each of the sectors involved based on consideration of the plurality and presence of the most representative organizations.

The boards have permanent commissions and working groups

for specific topics. In conjunction with the technical secretariats, these

groups must systematize the suggestions submitted by the members to

propose concrete actions and specific approaches.

As provided in the decree for the creation of the boards published

in the DOF on 21 April 1995, the call for nominations, published on 31

March 1995, and the internal working regulations, the boards have the

following functions:

a. To advise Semarnat on the design, implementation and assessment of

national strategies for the environment and use of natural resources,

in accordance with the national situation and needs and with international commitments.

b. To propose and implement recommendations to Semarnat on policies, programs, studies and specific actions involving the environment and use of natural resources, ensuring that such recommendations are presented in the form of draft program budgets.

c. To periodically assess the results of applied programs involving the

environment and use of natural resources, based on reports provided

by Semarnat or studies performed or promoted by the Board.

d. To analyze specific matters and cases submitted by Semarnat for its

consideration.

e. To promote public consultation and deliberation, and agreements on

national strategies required for sustainable development.

f. To prepare recommendations to improve the laws, regulations and

procedures involving the sustainable use of natural resources and

environmental improvement.

116 ACCESS TO ENVIRONMENTAL INFORMATION
g. To promote or perform studies contributing to the design, improvement or assessment of Semarnat policies.

h. To coordinate with similar state, regional, national and international

organizations to exchange experiences that may be mutually beneficial.

i. To offer opinions on the guidelines governing Semarnat’s participation in international forums.

In accordance with its Internal Regulation, each Regional Advisory Board has one state representative from each of the abovementioned sectors.

The following relevant subjects have been attended to by the

National Advisory Board:70

• Discussion of amendments to the LGEEPA and holding LGEEPA analysis meetings called by the National Advisory Board, where the boards

were an important factor for unanimous congressional approval.

• Board members’ participation, via the mechanism developed and

approved by the National Board’s NAFTA-NAAEC Commission, in

three public consultations conducted by the CEC’s Joint Public Advisory Committee.

• Assessment by the national sustainable development boards (of the

United States, Canada and Mexico) in the NAFTA region, five years

after Río.

• Preparation and discussion of the general assessment of the performance of the sustainable development advisory boards, by the operating group of the National Advisory Board.

Ease of access

The National Development Plan was published in the DOF on

30 May 2001. While not officially published, the Environment and Water

Programs 2001-2006 may be consulted at the Semarnat web page at

<http://www.semarnat.gob.mx>.

MEXICO 117

70. <http://www.semarnap.gob.mx/gestion/participacion/cc/regint.htm>.
Cost

Publications may be viewed free of charge at the information centers. The environmental plan and programs are publicly available at a

reasonable cost. Copies of these documents may be obtained via the

Internet at no cost.

5. LAWS, REGULATIONS AND STANDARDS

This section discusses legal mechanisms in force allowing the public to participate in the process of developing environmental laws, regulations and standards.

5.1 Laws

Under the Mexican constitutional system, the power to table draft

legislation or amendments before Congress is reserved for the President

of the Republic, the deputies and senators of Congress and the state legislatures.71

Although the power to table drafts is reserved to the authorities

described above, Mexican law allows citizens to present petitions

directly to Congress.72

The legislative process includes public consultation forums in

which citizens and groups interested in draft laws under discussion in

congress may express their opinions. The results of such consultations

provide legislators with important information. For example, the Secretariat of the Interior (Secretaría de Gobernación) undertook a consultation

in preparing the initial draft of the Law of Access to Public Information,

in which certain interested sectors participated.

5.2 Regulations

The President’s exclusive power to issue administrative regulations is set forth in Section I of Constitutional Article 89. This provision

establishes the power of the federal executive branch to promulgate and

administer laws enacted by Congress, being responsible at the administrative level for their exact observance.

118 ACCESS TO ENVIRONMENTAL INFORMATION

71. Constitutional Article 71.

72. Article 61 of the Regulations for the Internal Governance of the General Congress of

the United Mexican States.
There is no legal mechanism allowing for public participation in

the development of regulations.

5.3 Standards

Article 36 of the LGEEPA establishes Semarnat’s obligation to

issue Mexican Offical Standards (Normes Oficiales Mexicanas–NOMs)

on the environment and the sustainable use of natural resources, as

follows.

I. To establish the requirements, specifications, conditions, procedures,

goals, parameters and allowable limits to be observed in the regions,

zones, basins or ecosystems, in the use of natural resources, in the undertaking of economic activities, in the use and allocation of properties, and in

processes;

II. To consider the conditions needed for public well-being, the preservation or restoration of natural resources, and environmental protection;

III. To stimulate or compel economic agents to reorient their processes and

technologies toward environmental protection and sustainable development;

IV. To provide long-term investment certainty and compel economic

agents to assume the costs of the environmental effects they cause; and

V. To promote production activities in a framework of efficiency and

sustainability.

Issuing and amending environmental NOMs is done in accordance with a procedure set out in the Federal Law of Measurements and

Standards (Ley Federal sobre Metrología y Normalización).73 This Law

establishes the legal framework for promoting transparency and efficiency in the development and enforcement of NOMs and Mexican

Standards (NMX). In accordance with Article 47 of the Law, the procedure is as follows:

The full text of NOM drafts are published in the DOF, so that interested parties may present their comments to the National Advisory

Committee for Environmental Protection Standards (Comité Consultivo

Nacional de Normalización para la Protección al Ambiente–CCNNPA)

MEXICO 119

73. Published in the DOF on 1 July 1992.
within the following 90 calendar days.74 During this period, the analyses

used in developing the NOM draft are publicly available for consultation at the Committee.

At the end of this period, the CCNNPA studies the comments

received and, as applicable, makes changes to the draft in a period not to

exceed 45 calendar days.

The authority must order the publication of responses to comments received before publishing the NOM.

This procedure must be observed at all times in order for the standard to have full legal effect. However, the Law establishes the possibility of not following the procedure in cases of emergency. In these cases,

the competent authority may prepare NOMs directly without first

developing drafts or advance drafts, ordering the publication thereof in

the DOF for a maximum period of six months. In no case may the same

standard be issued more than twice on the basis of an emergency argument. If the authority that developed the emergency standard decides to

extend the effective period or make it permanent, it must present it as an

advance draft and follow the ordinary procedure for its approval.75

While the development of NOMs is primarily the responsibility of

the public authority, the Federal Law of Measurements and Standards

establishes the possibility for the public to present its own drafts. The

last paragraph of Article 44 of the Law states: “Interested persons may

present proposals for Mexican official standards to the agencies, which

shall conduct the necessary assessment and, as the case may be, present

the advance draft in question to the respective committee.”

Right to access

For full legal effect, federal legal provisions must be published in

the DOF.76 In addition to publication in the DOF, Constitutional Article

120 provides that “the governors of the states are required to publish and

ensure the enforcement of federal laws.” This publication is intended to

120 ACCESS TO ENVIRONMENTAL INFORMATION

74. The Committee includes the participation of different interested parties and representatives of the economic activity sectors. It has seven subcommittees: ecological

usage of natural resources, solid and hazardous materials and waste, air, fuel quality, water, environmental risk, and polluting energy. Each subcommittee has one

or more working groups.

75. LGEEPA Article 48.

76. Article 2 of the Law of the Official Gazette of the Federation and Government

Gazettes.
facilitate state residents’ knowledge of federal laws. Specifically with

regard to environmental matters, the LGEEPA provides for the publication of the Ecological Gazette as a source of official information on relevant legal provisions.

Ease of access

The public is guaranteed access to the DOF, which is published by

the Secretariat of the Interior. The publication is available at the entity’s

offices and from newspaper and magazine stands. There are also

online services offering DOF access via Internet.77 Through the General

National Archives, the Secretariat of the Interior has published a compact disc collection containing the full text of the DOF from 1973 to date,

as well as the indices for documents published from 1917 to 1972.

Furthermore, Congress has a compilation of federal laws in force

that may be consulted at its library or through the web page <http://

www.cddhcu.gob.mx/leyinfo/>.

The Ecological Gazette published by INE may be consulted at the

documentation centers of the various Semarnat offices. Published quarterly, this publication may also be accessed via the Internet.78

All federal laws, regulations and environmental NOMs in force are

compiled by Semarnat and may be consulted at the Internet address

<http://www.semarnat.gob.mx>.

In 1996, Semarnat produced a compact disc entitled “Mexican

Environmental Summary. Current Environmental Management” (Breviario Ambiental Mexicano. Gestión Ambiental Actualizada), compiling federal laws and regulations relating to the Secretariat’s various activities

and the environmental NOMs has issued. It also includes the environmental laws of all Mexican states. Semarnat is working on an updated

version of the disc, expected for 2002.

The INE also has a section on its web page <http://www.ine.

gob.mx/> called “legal framework,” in which the laws, regulations,

international treaties and environmental legislation in general may be

consulted. A listing of INE publications may also be found at the page

<http://espejo.ine.gob.mx/upsec/publicaciones>.

MEXICO 121

77. <http://www.cpware.com/dof/dof_menu.htm>, <http://info.juridicas.unam.

mx/infjur/leg/dof/2000/> – 79k.

78. <http://espejo.ine.gob.mx/upsec/publicaciones/consultaListaPub3.php>.
Furthermore, the INE web page <http://espejo.ine.gob.mx/> has

a special Sinia section containing plans, programs and rules relating to

the following topics: Biodiversity, Risk and Waste, Legal Framework,

Urban-Industrial Matters, International Instruments, Ecological Enforcement, Environmental Economy, Sector Programs, Environmental

Indicators, and Sustainable Development. It also contains information

on environmental commissions and centers.

At the state level, environmental laws can be consulted in each

state’s official bulletin and in the local congresses’ libraries. Several law

libraries also compile state legislation, as do the Supreme Court, the

General National Archives and the UNAM Legal Research Institute.

Nearly all state web pages contain state laws, such as <www.df.

gob.mx>, <www.colima.gob.mx>; <www.guanajuato.gob.mx>, etc.

The UNAM web page also has a site where state laws may be accessed:

<http://info4.juridicas.unam.mx/>.

Cost

Official publications such as the DOF and the Ecological Gazette

have low prices, as the prices are intended merely to recoup publication

costs. Public services accessed via Internet are free, as the documentation centers and law libraries. Due to their higher costs, access to private

services is limited to persons and organizations with greater economic

means.

6. COMPLIANCE ACTIONS AND LAW ENFORCEMENT

This section covers legal provisions relating to public access to

information obtained by environmental authorities in regard to compliance and enforcement of environmental laws.

Right to access

Voluntary measures are an important part of compliance in Mexico. Voluntary rules involve agreements between businesses and the

environmental authority to raise environmental requirements above

what is provided in official standards, or to fill gaps in the rules. Thus,

persons responsible for the operation of a business may, by choice, perform a methodological examination of their operations with respect

to the pollution and risk generated and the degree of compliance with

the environmental rules, international parameters and good engineer122 ACCESS TO ENVIRONMENTAL INFORMATION
ing practices, in order to identify preventive and corrective measures

needed to protect the environment.

Congruent with all other applicable laws, in order to protect the

rights of private individuals and the confidentiality of the information,

only those members of the public who demonstrate that they are or may

be directly affected by the activities of an audited business have access to

information generated in the audit process. Pursuant to Article 38 bis 1

of the LGEEPA, Semarnat “shall make the preventive and corrective

programs derived from environmental audits, as well as the basic diagnostic from which they arise, available only to those who are or may be

directly affected. In all cases, legal provisions relating to the confidentiality of industrial and commercial information must be observed.”

There is no right of public access to information with respect to the

authority’s environmental enforcement actions (such as inspections,

penalties and judicial proceedings) while such actions are pending. The

LGEEPA establishes that the requested information shall be denied in

the case of information on matters pending resolution that involve judicial proceedings or inspections and oversight.79 The purpose of this limitation is to facilitate the discovery of facts and the determination of

liabilities, as well as to protect the honor and prestige of the citizens or

business implicated in the process until the competent authority issues a

final ruling.

Access policies

In order to further knowledge of environmental compliance and

enforcement actions, the Profepa web page provides to the public information on the number of environmental audits performed each year

since 1992, specifying which ones remain in progress and which have

already been concluded.80

Profepa is currently developing a Mexican Environmental Compliance Index System (Sistema de Índices de Cumplimiento de la

Normatividad Ambiental en México), including an Environmental Compliance Index Manual and an Environmental Compliance Index Assessment Report, all of which may be consulted at the Profepa web page. The

authority also has an Agenda of Priorities that may be found on the web

page.

MEXICO 123

79. LGEEPA Article 159 bis 4, paragraph II.

80. <http://www.profepa.gob.mx/>.
Profepa also issues reports on its activities, including its inspections, environmental audits, penalties imposed, and the number of

complaints filed by the public. This information may be consulted in

the Semiannual Report on the General Situation of Ecological Balance

and Environmental Protection, in the Semarnat annual reports, in the

monthly activity reports issued by the Profepa state delegations, and on

its web page.

Cost

At present, access to Profepa reports is generally not cost-prohibitive. Access via Internet is free.

7. POLLUTANT RELEASE AND TRANSFER REGISTRIES

This section describes the right and mechanisms to obtain information on the release, handling and final disposal of pollutants.

The pollutant release and transfer register (PRTR) is an annual

instrument for the compilation, integration and dissemination of data on

178 pollutants discharged, released or transferred to the air, water and

soil, listed by type of establishment, economic sector and geographical

region.

The legal basis for the PRTR is found in the LGEEPA reforms of

31 December 2001, under which Article 109 bis provides:

The Secretariat, the States, the Federal District and the Municipalities must

keep a release and transfer register for air, water, soil and subsoil pollutants, materials and wastes under their jurisdictions, as well as those

substances determined by the corresponding authority. Registry information shall be composed of the data and documents contained in the

environmental authorizations, certificates, reports, licenses, permits and

concessions processed by the Secretariat or the competent authorities of

the Government of the Federal District, the States or the Municipalities, as

the case may be.

Individuals and entities responsible for pollution sources are required to

provide the information, data and documents necessary to mount the

registry. Registry information shall be composed of data organized by

substance and by source, attaching the name and address of the establishments subject to registration.

124 ACCESS TO ENVIRONMENTAL INFORMATION
Registered information shall be public and shall have the effect of a declaration. The Secretariat shall allow access to said information pursuant to

this law and all other applicable legal provisions, and shall disseminate it

in a proactive manner.

It should be noted that, while the imposition of this obligation on

individuals and facilities responsible for pollution sources is a big step

forward, a NOM or some regulation is still needed to establish the conditions and requirements for complying with the obligation.

Hazardous waste management requires knowledge of the facilities or activities that generate it; the volume and type of waste produced,

transported, stored, recycled, treated or eliminated each year; detection

of the places in national territory where this occurs; information on the

companies involved in hazardous waste transportation, storage, treatment or final disposal; and information on spills and how they are handled to minimize or control risks. For this purpose, a notification system

drawing on hazardous waste management manifests and reports was

established under the authority of LGEEPA Article 151 and the Hazardous Waste Regulation.

Right to access

The Semarnat delegations are responsible for receiving the manifests from businesses in each state. In practice, they do not have the control capacity at the service counters to ensure that forms are properly

filled out, nor to capture and analyze data in a timely manner in order to

prepare and release interpretations. It should be noted that generation

manifests for 1997 through 1999 were captured and analyzed for

Aguascalientes, Coahuila, Guanajuato, Querétaro, San Luis Potosí and

Durango, which enabled the identification of filing errors and the need

for improved forms (the electronic filing of which has been sought to

eliminate the need for data entry). Generation manifests for the Federal

District and the State of Mexico have also been entered for 2000.

The problem in practice is that the generators do not regularly submit the semiannual reports required to be filed in addition to the manifests. The semiannual reports represent a major opportunity to improve

the information system, as they contain more current data and allow for

performance follow-up. It would be useful to distinguish between large

and small generators, as it is estimated that less than 10 percent generate

more than 90 percent of all hazardous waste. Drawing on this distinction, the compilation system would not become saturated and it would

therefore be used more and be more useful.

MEXICO 125
The inventory required under Article 4, paragraph XI of the

LGEEPA Hazardous Waste Regulation is prepared based on the manifests and reports mentioned above and sets forth Semarnat’s jurisdiction

to establish and update an information system on hazardous waste generation. This inventory of hazardous waste-generating establishments

may be consulted at the INE web page.

The information contained in the system is considered environmental information pursuant to Article 159 bis 3 of the LGEEPA. Therefore all persons are entitled to request this information from Semarnat.

In addition to the information contained in the statements and

reports, the public has access to other information on businesses responsible for the handling and final disposal of hazardous waste, in the risk

study and accident prevention programs for such activities.

The risk study must be submitted to Semarnat along with the EIA,

and is therefore available for public consultation under the terms and

during the periods described in the section on the EIA procedure.

For its part, the accident prevention program must be submitted

for approval to various public authorities, including Semarnat and the

Secretariats of the Interior, Energy, Economy, Health, and Labor and

Social Welfare. These programs are included in the definition of environmental information held by the authority, and are thus subject to

public consultation.

Access policy

Pursuant to the Program for the Minimization and Comprehensive

Handling of Hazardous Industrial Hazardous Waste in Mexico for

1996-2000 (Programa para la Minimización y el Manejo Integral de los

Residuos Industriales Peligrosos en México–PMMIRIP), environmental

information is fundamental for the establishment of policy, objectives

and priorities, and for the assessment of policy performance. The hazardous waste handling program for this six-year presidential administration has yet to be published, and thus the policy is based on the

aforementioned program and other publications on the handling and

minimization of hazardous waste, available at the INE web page.81

126 ACCESS TO ENVIRONMENTAL INFORMATION

81. <http://remexmar.ine.gob.mx/cenai/textoscompletos.htm>.
Ease of access

The INE web page features information relating to the handling of

hazardous waste, with reference to the following topics:

• Functions of the hazardous waste bureau;

• Definition and characterization of waste;

• Annual hazardous waste volume manifested by businesses registered

as generators;

• Legal bases to support the creation of the hazardous waste handling

infrastructure, including the NOMs that establish the requirements to

be met by sites to be regarded as controlled landfills;

• Specifications for the design, construction and operation of controlled

landfills;

• Directory of service companies authorized to handle hazardous waste;

• INE procedures relating to hazardous waste handling;

• The Hazardous Waste Tracking System (Sirrep), discussed below; and

• Mexico’s international commitments regarding hazardous waste.

In recent years, Mexico has developed the following hazardous

waste information and tracking systems, with the purpose of capturing,

storing and processing data needed to assess waste generation, movement and disposal:

Hazardous Waste Tracking System (Sistema de Rastreo de

Residuos Peligrosos–Sirrep). This system is intended to generate information to assist in the control and tracking of transboundary movement

of hazardous waste, as well as to identify the sound management of such

waste and the respective businesses’ compliance with the law. The

system is composed of two parts, one for businesses and one for the

authorities responsible for regulating the transboundary movement of

hazardous waste.

National Hazardous Waste Inventory System (Sistema Nacional

de Inventarios de Residuos Peligrosos). The Bureau of Hazardous

Waste Statistics and Inventories, within the General Bureau of Integral

Pollutant Management, working on consolidating this system so that all

information recorded in the Semarnat state delegations automatically

forms part of a Semarnat database. This database, expected to be ready

MEXICO 127
by the first half of 2002, will include information on the type of waste,

volume, industrial activity, country to which the waste will be sent, etc.,

as well as statistics on hazardous waste handling.

Mexican Network for Environmental Handling of Hazardous

Waste (Red Mexicana de Manejo Ambiental de Residuos Peligrosos–

Remexmar). This network acts as a mechanism to promote the more

effective management of waste throughout national territory, through

the creation of Coordinating Technical Nuclei (Núcleos Técnicos

Coordinadores–NTC) or Environmental Waste Management Networks

(Redes de Manejo Ambiental de Residuos) in each state. The network

includes a National Information Center (Centro Nacional de Información–

Cenai), the purpose of which is to promote information on sound waste

management. Various texts are available for consultation at Cenai on

hazardous waste handling. It also has information modules, such as universities that are part of Remexmar, where private individuals may

obtain information on waste handling and other related topics.

8. EXCEPTIONS TO THE RIGHT OF ACCESS TO

ENVIRONMENTAL INFORMATION

As discussed in Section 1 of this chapter, the right of access to information is stipulated in Constitutional Article 6, although the Supreme

Court, and not the Constitution itself, has defined the right as an individual guarantee.

In a recent decision, the Supreme Court held that:

[t]he right to information set forth in the last part of Article 6 of the Federal

Constitution is not absolute, but rather, as any guarantee, is subject to limitations or exceptions based fundamentally on the protection of national

security and respect for the interests of society and the rights of citizens.

These limitations have given rise to the concept of information secrecy

known in law as “reserved information” or “bureaucratic secrecy.” In

these conditions, as the State is required to be mindful of such interests as a

passive subject of the guarantee, in observance of the constitutional and

legal standards, the aforesaid right cannot be guaranteed indiscriminately, but rather respect for the exercise thereof includes exceptions

which both regulate and guarantee it, in light of its subject matter. Thus, in

the case of national security, there are rules that restrict access to information on that subject given that public knowledge may lead to harm to

national interests, and that also penalize failure to observe that reservation. As regards the public interest, there are rules protecting criminal

128 ACCESS TO ENVIRONMENTAL INFORMATION
investigations, health and public decency, and in the case of personal

safety there are rules protecting citizens’ rights to life or privacy.82

In other words, the right of access to information is an individual

guarantee for all citizens, and therefore must be guaranteed by the State.

However, there are exceptions limiting this right in the case of national

or public interest, as well as in respect of third-party rights. Following is

a discussion of the exceptions to the right of access to environmental

information.

The Federal Law of Transparency and Access to Public Governmental Information (see Section 1.4) classifies reserved and confidential

information, including that considered as such by another law; that

whose disclosure could compromise national security, public safety or

national defense; information which disclosed could undermine international negotiations or that is provided on a confidential basis by other

states or international organizations; which disclosed would harm the

country’s financial, economic or monetary stability, endanger the life,

safety or health of any person or cause serious harm to law enforcement

activities or judicial or administrative processes. It also includes criminal investigations; commercial, industrial, tax, banking or fiduciary

secrecy; and the opinions, recommendations or viewpoints forming part

of the deliberative process of public servants while the final ruling which

must be documented, is pending. Confidential information includes

personal data and information deemed confidential, reserved or

reserved commercial information by the person providing the information to the subject of the law. Confidential information cannot be disclosed without the express consent of the owner thereof.

The Law imposes limits on the ban on disclosing reserved and confidential information. First, the Law stipulates that the reservation may

not be invoked in the cases involving the investigation of serious violations of fundamental rights or crimes against humanity. Second, information may be declassified when the grounds for such classification

cease to exist, or when the reservation period has passed; this period is

12 years and may be extended when it is proven that the causes for classification continue to exist. Third, the parties must be given access to those

parts of the document that do not contain any reserved information. The

Federal Public Access Institute (Instituto Federal de Acceso a la Información

Pública), created pursuant to the Law, is responsible for establishing the

criteria for classification and declassification of reserved information in

MEXICO 129

82. Ninth period. Instance: Full Court; source: Federal Judicial Weekly and Gazette;

volume XI, April 2000, thesis: P. LX/2000; p. 74; subject: Constitutional, isolated

theses.
accordance with the Regulation. The Law provides that the heads of

administrative units shall be responsible for classifying information in

accordance with the criteria set forth in the Law, Regulation and guidelines issued by the Institute.

The LGEEPA chapter on the right to environmental information

specifically establishes the following circumstances in which Semarnat

and the states, Federal District and municipalities must refuse to disclose the requested information:83

I.- Where the information is deemed confidential by law or when, due to

the nature thereof, its disclosure affects national security;

II.- Where the information relates to matters subject to pending judicial or

inspection and enforcement proceedings;

III.- Where information is provided by third parties, without there being a

legal obligation to do so; or

IV.- Where the information relates to inventories, inputs and process technologies, including descriptions thereof.

In addition, the EIS chapter of LGEEPA establishes the right of proponents of work or undertakings to reserve any information which if

disclosed could affect industrial property rights or the confidentiality of

the commercial information provided by the proponent.84

Under LGEEPA’s Environmental Impact Regulation, any EIS

assessment file must be made available to the public unless the proponent, upon filing of its application, requests that the information be

reserved because publication of the information would affect industrial

property rights or the confidentiality of commercial data.85

Under LGEEPA, Semarnat must provide preventive and corrective programs derived from environmental audits only to those that are

or may be directly affected. The Law clearly specifies that there must be

compliance with provisions regarding the confidentiality of industrial

and commercial information. Therefore, where matters are deemed to be

confidential or related to industrial information, they will be exempted

from disclosure to affected parties.86

130 ACCESS TO ENVIRONMENTAL INFORMATION

83. LGEEPA Article 159 bis 4.

84. LGEEPA Article 34.

85. LGEEPA Article 38.

86. LGEEPA Article 38 bis 1.
There are limitations on the right of access to information in other

laws that are closely linked with LGEEPA. These include the Federal

Law of Administrative Procedure (LFPA),87 the Federal Law of Measurements and Standards (Ley Federal sobre Metrología y Normalización),88

the Law for the Promotion of Scientific and Technological Research (Ley

para el Fomento de la Investigación Científica y Tecnológica),89 and the General Wildlife Law (LGVS).90 In principle, any person who considers that

any of these exceptions is contrary to the nature of access to information

may question its legality before the courts, arguing that such provision

or law does not guarantee access to information as provided under Constitutional Article 6. However, the availability of a constitutional injunction (amparo) in cases regarding individual guarantees, such as this

one–which still lack mechanisms to make them effective–is still a matter

of debate.

On the other hand, where the authority violates rules on confidentiality or trade or intellectual secrets, the aggrieved party may file a lawsuit to claim moral or economic damages, as the case may be, and seek

compensation. Industrial secrets include not only technical information

but also commercial information with market value that gives a holder a

MEXICO 131

87. LFPA Chapter V, referring to access to documentation and information, establishes

the right of all interested persons in an administrative procedure to know the status

of their proceeding, except when they contain information on national defense and

security, they related to matters protected by commercial or industrial secrecy,

where the interested party is not the named or affected person in the matter, or in

the case that a legal provision so prohibits. The same Law mentions the RFTS: the

public availability may be excluded by accord published in the DOF, in the case of

information regarding specific proceedings undertaken exclusively by individuals

when they do not relate to the establishment or performance of a business activity.

88. In the case that the information in the development of advance drafts of NOMs is

classified as confidential by the person providing it, it shall not be disclosed and

shall enjoy the protection established in the intellectual property provisions (Article 50). Pursuant to Article 46, draft NOMs must be published in the DOF, and any

information deemed confidential shall not be subject to comment.

89. According to the Law, all technological research and development institutions

that receive federal government support are required to publicly disclose their

activities and the results of their research and development, notwithstanding the

corresponding industrial or intellectual property rights and information that, due

to the nature thereof, must be reserved. The same is provided for the National Science and Technology Council (Comisión Nacional de Ciencia y Tecnología), which

must maintain and administer a publicly available integrated information system

on scientific and technological research, except for information that may affect

industrial and intellectual property rights and any established confidentiality rules

(Article 6).

90. In the National Wildlife Information Subsystem, established under the LGVS,

Semarnat cannot make information publicly available when it risks generating

intellectual property rights (LGVS Article 49).
competitive advantage.91 As provided in Article 82 of the Industrial

Property Law, the business owners and industrialists may decide which

information is to be kept confidential in order to obtain a competitive

advantage vis-à-vis third parties. This provision is congruent with Articles 34 and 159 bis 4, paragraph III, of the LGEEPA. For this reason,

industrial and trade secrets are, generally, the main reason for denying

public access to information.

Article 159 bis 5 of the LGEEPA states that after 20 days have

passed from the date on which the information request is received, if

the environmental authority has not issued a response in writing, the

request shall be deemed to have been denied (deemed denial). By using

this article, the environmental authority can always deny access to information without the need to justify such action.

9. GENERAL CONSIDERATIONS

Mexico has been developing a legal and institutional system on

matters related to the environment for nearly 30 years. The last 10 years

have been particularly dynamic, during which time the legal and theoretical frameworks for the right of access to information and citizen participation in environmental matters have been developed. There are

presently various initiatives underway to make these frameworks effective.

The LGEEPA establishes general rules regarding the right of access

to environmental information covered by the Act. However, most sectoral environmental laws do not contain an access to information mechanism nor provisions requiring the competent authority to provide it.92

In practice, the Internet web pages of the principal government

environmental agencies offer information on the administrative areas

responsible for facilitating public access to environmental information

and access to procedures allowing for citizen participation in environmental decision-making processes. While the existence of environmental information is guaranteed, the same is not true of its quality or the

format in which it must be provided.

132 ACCESS TO ENVIRONMENTAL INFORMATION

91. Injunction review 504/96. Federal Prosecutor under the Tenth District Criminal

Court in the Federal District. 20 August 1996. Unanimous vote. Author: by authorization of the Federal Judiciary Council, Luis Montes de Oca Medina. Clerk: Ana

Eugenia López Barrera.

92. As stated above, there is a draft Access to Information Law.
As regards the dissemination of environmental information, Mexico has an Environmental and Natural Resources Information System, as

provided in the LGEEPA,93 that makes available a considerable amount

of information and data. However, this collection of databases and

Internet web pages lacks systematic and effective coordination. A network of environmental information services is currently being created.

The adoption of the Federal Law of Transparency and Access to

Public Governmental Information is a major, recent development in the

creation of a legal framework for public access to information held by the

Mexican federal government. However, the creation of institutions and

agencies to enforce the Law, as well as the organization of the files of

government agencies, are pending tasks that will require substantial

efforts by the “legal subjects.” In addition, the federal executive branch

(in issuing the Regulation), the heads of the administrative units, the

Institute (in its guidelines and decisions) and the courts must still define

in detail key concepts such as “reserved” or “confidential” information.

Lastly, with regard to public participation, although the law provides for instruments and mechanisms enabling public participation in

decision-making processes, the timing thereof is too late to have any

effective influence on the decision-making. Furthermore, the submission and inclusion of public observations and proposals is, in the end,

at the environmental authority’s discretion. In addition, instruments

defining the scope and application of public participation processes are

still unclear or even nonexistent. The authority and civil society are

undertaking efforts to fill these gaps.

MEXICO 133

93. Article 159 bis of the LGEEPA.

United States

Table of Contents

1. CONSTITUTIONAL AND STATUTORY FRAMEWORK

FOR PUBLIC ACCESS TO INFORMATION . . . . . . . . . . . 141

1.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . 141

1.2 Overview of Constitutional Provisions. . . . . . . . . . . 141

1.3 Overview of Federal Access Legislation, Policies,

and Practices. . . . . . . . . . . . . . . . . . . . . . . . . . 142

1.3.1 Freedom of Information Act . . . . . . . . . . . . . 143

1.3.2 Congressional Collection and Dissemination

of Information . . . . . . . . . . . . . . . . . . . . . 147

1.3.3 “Voluntary” Agency Dissemination of

Information . . . . . . . . . . . . . . . . . . . . . . 148

1.3.4 Judicial Branch . . . . . . . . . . . . . . . . . . . . 149

1.3.5 “Government in the Sunshine”–Open Meeting

Laws . . . . . . . . . . . . . . . . . . . . . . . . . . 149

1.4 Overview of State Access Legislation, Policies,

and Practices. . . . . . . . . . . . . . . . . . . . . . . . . . 150

1.4.1 The Ohio Public Records Act . . . . . . . . . . . . 150

1.4.2 The Ohio Open Meetings Act . . . . . . . . . . . . 151

137
2. ENVIRONMENTAL IMPACT ASSESSMENTS . . . . . . . . . 153

2.1 Federal Regulations and Policies . . . . . . . . . . . . . . 153

2.2 Selected State Regulations and Policies. . . . . . . . . . . 156

2.2.1 California’s Environmental Quality Act . . . . . . 157

3. LICENSES OR PERMITS FOR PROPOSED PROJECTS. . . . . 157

3.1 Federal Regulations and Policies . . . . . . . . . . . . . . 158

3.1.1 Legal Right of Access . . . . . . . . . . . . . . . . . 158

3.1.2 Access Policies. . . . . . . . . . . . . . . . . . . . . 159

3.2 Selected State Regulations and Policies. . . . . . . . . . . 162

3.2.1 Tennessee . . . . . . . . . . . . . . . . . . . . . . . 162

3.2.2 New Jersey. . . . . . . . . . . . . . . . . . . . . . . 163

4. PROPOSED REGULATIONS, POLICIES, PROGRAMS,

OR PLANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164

4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . 164

4.2 Federal Regulations and Policies . . . . . . . . . . . . . . 164

4.3 Selected State Regulations and Policies. . . . . . . . . . . 167

4.3.1 California’s Administrative Procedure Act . . . . 168

5. TOXICS RELEASE INVENTORY . . . . . . . . . . . . . . . . . 169

5.1 Federal Regulations and Policies . . . . . . . . . . . . . . 169

5.2 Selected State Regulations and Policies. . . . . . . . . . . 173

138 ACCESS TO ENVIRONMENTAL INFORMATION
5.2.1 New Jersey’s Worker and Community

Right-to-Know Act . . . . . . . . . . . . . . . . . . 173

6. ENFORCEMENT AND COMPLIANCE ACTIONS . . . . . . . 175

6.1 Federal Regulations and Policies . . . . . . . . . . . . . . 176

6.1.1 Citizen Enforcement Suits . . . . . . . . . . . . . . 176

6.1.2 Information from the Regulated Community:

Monitoring and Reporting Requirements . . . . . 178

6.1.3 Accessing Information from the Government . . . 180

6.2 Selected State Regulations and Policies. . . . . . . . . . . 182

6.2.1 The New Jersey Water Pollution Law . . . . . . . 182

7. EXCEPTIONS TO DISCLOSURE . . . . . . . . . . . . . . . . . 183

7.1 Statutory Exemptions. . . . . . . . . . . . . . . . . . . . . 183

7.1.1 General . . . . . . . . . . . . . . . . . . . . . . . . . 183

7.1.2 Confidential Business Information . . . . . . . . . 185

7.1.3 Risk Management Plans . . . . . . . . . . . . . . . 187

7.1.4 Environmental Impact Assessment Exclusions . . 188

7.2 Disclosure after the 9/11 Terrorist Attacks . . . . . . . . 188

UNITED STATES 139

1. CONSTITUTIONAL AND STATUTORY FRAMEWORK

FOR PUBLIC ACCESS TO INFORMATION

1.1 Introduction

This chapter discusses law, policy and practice governing public

access to government-held environmental information at the federal

level in the United States and provides examples from the state level.

The analysis covers environmental impact assessment (Section 2), proposed permits (Section 3), proposed regulations (Section 4), toxic release

inventories (Section 5), compliance and enforcement actions (Section 6),

and exceptions to disclosure (Section 7). Useful background information

is provided in Section 1 by a review of key constitutional provisions and

federal and state laws that are relevant to public access to environmental

information in the United States. Given their prime importance, freedom of information laws at the federal and state level are discussed in

some detail, as are certain general policies relating to access to information.

1.2 Overview of Constitutional Provisions

The United States Constitution establishes the framework for the

functioning of the United States government. The Constitution divides

the government into three branches–executive, legislative, and judicial–and enumerates the powers of each. The executive branch functions

through a system of agencies whose operations are regulated by administrative law. The rules, regulations and general orders promulgated by

an administrative agency, pursuant to its delegated powers, have the

force and effect of law.

The First Amendment to the US Constitution states, “Congress

shall make no law respecting an establishment of religion, or prohibiting

the free exercise thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.” This amendment has been

interpreted as imposing limits on the government’s ability to withhold

certain types of information from the public. This includes information

141
that is produced or released in a forum that, by its nature or by express

constitutional command, is open to the public and not wholly internal to

government. The First Amendment itself does not create a system for

providing information to the public nor does it create a threshold level of

appropriate disclosure of information to the public.1

In Article I, under the speech or debate clause, the Constitution

prohibits the courts or the executive branch from punishing a legislator

for making information public in the course of the legislative process. In

addition, Article I provides that “Each House shall keep a Journal of its

Proceedings, and from time to time publish the same, excepting such

drafts as may in their judgment require secrecy....” Beyond these specific, narrow constitutional provisions, there is no generalized constitutional basis for public access to information (environmental or other),

and public access in the United States remains a matter of legislative

empowerment rather than constitutional mandate.

1.3 Overview of Federal Access Legislation, Policies, and Practices

US law provides a number of tools that allow public access to information related to the environment that is held by both governmental

and private sources. The most basic and important mechanisms are freedom of information laws, right-to-know laws, permitting laws, and

environmental impact assessment laws. Freedom of information laws

and several supplementary tools for the public to obtain information

will be outlined in some detail in this section, while the right-to-know

laws, environmental impact assessment laws, permitting laws, and

other information access mechanisms will be discussed in the following

sections.

While the right of the public to access information is usually exercised pursuant to statutes and in accordance with regulations, many

states recognize a common law right to inspect documents held by state

and local authorities.2 Where it is recognized, this right can apply to

force disclosure of information that is exempt from disclosure under a

state’s freedom of information law.3

142 ACCESS TO ENVIRONMENTAL INFORMATION

1. L.H. Tribe, American Constitutional Law, 2nd ed. (New York: The Foundation Press,

1988) at 814.

2. See e.g., A.E. Bonfield and M. Asimov, State and Federal Administrative Law (St. Paul:

West Group, 1989) at 537.

3. See e.g., Irval Realty Inc. v. Board of Public Util. Comm’rs, 294 A.2d 425 (N.J. 1972).
1.3.1 Freedom of Information Act

In the United States, the public can gain access to federal executive

agency records through the Freedom of Information Act (“FOIA”),4 a general purpose law that applies to many kinds of governmental information. Under this law, any person can request an agency to provide copies

of all documents it holds relevant to a particular subject. This system

puts the burden on the public to reasonably describe the information

requested and demand its disclosure, in accordance with the FOIA regulations of the relevant agenc(y/ies). FOIA applies only to agency records

in the possession and control of the government.

Legal Right of Access

The FOIA works by establishing a presumption that any person

may have access to any record held by a government agency unless the

record is covered by a specific exemption in the Act.5 While the term

“record” is defined at 5 U.S.C. §552 (f)(2), there has been substantial litigation over whether particular pieces of information requested from an

agency are “agency records” subject to the Act. In general, agency

records do not have to be paper documents. They can include photographs, maps, tape recordings, and information contained on computer

disks, but not personal notes of agency employees. The FOIA also

requires agencies to make final adjudicatory opinions, policy statements, and administrative staff manuals, among other things, available

for public inspection and copying.

To gain access to an agency record, a person must make a request

that “reasonably describes” the record desired. Most agencies require

that FOIA requests be made in writing. Agencies must respond to FOIA

requests within certain time limits. If an agency does not possess the

record asked for in the letter, it may simply deny the FOIA request–it

does not have to collect or develop new information. When an agency

denies all or part of a FOIA request, it must specify the reasons for the

denial in writing, and must inform the requestor of the right to appeal

the denial administratively.

UNITED STATES 143

4. 5 U.S.C. §552.

5. See e.g., US Department of Justice, On-Line Freedom of Information Act Guide (May

2000), online: <www.usdoj.gov/oip/foi-act.htm> (date accessed: 20 March 2002)

and Reporters Committee for Freedom of the Press, How to Use the Federal FOI Act,

8th ed., online: <http://www.rcfp.org/foiact/index.html> (date accessed: 29 April

2002).
Certain documents–including those dealing with national security, private personnel records, ongoing criminal investigations, or confidential business information–are exempt from disclosure under the

FOIA. If the agency decides that a document contains information that

falls within one of these exemptions, it can withhold from disclosure

only those parts of the document that are subject to the exemption.

Access to any reasonably segregable non-exempt portions of the document must be given to the person requesting the information. If the government withholds the requested documents, the person requesting the

information can challenge this decision in court. Exceptions to disclosure are discussed in Section 7, below.

The courts play an important role in enforcing the requirements of

the FOIA. Individuals, firms, or the press whose FOIA requests have

been denied have the right to challenge the denial in court. In such a lawsuit, the agency has the burden of showing either that an exemption

applies to the request or that the agency does not have responsive

records. This gives an advantage to the person making the request, and

promotes the presumption in favor of disclosure. Case law has established the principle that the exemptions are to be narrowly construed to

maximize disclosure of agency records. Judicial review also has helped

clarify the scope of the exemptions to the FOIA and made their application more uniform from agency to agency.6

Access Policies

In October 1993, President Clinton issued a memorandum calling

upon all federal agencies “to renew their commitment to the Freedom of

Information Act, to its underlying principles of government openness,

and to its sound administration.7” In a companion memorandum, Attorney General Janet Reno announced that “it shall be the policy of the

Department of Justice to defend the assertion of a FOIA exemption only

in those cases where the Agency reasonably foresees that disclosure

would be harmful to an interest protected by that exemption. Where an

item of information might technically or arguably fall within an exemption, it ought not to be withheld from a FOIA requester unless it need

be.8”

144 ACCESS TO ENVIRONMENTAL INFORMATION

6. See e.g., Bonfield and Asimov, supra, note 2 at 539-54 (discussing cases interpreting

FOIA exemptions) and S.G. Breyeret al., Administrative Law and Regulatory Policy, 2nd

ed. (New York: Aspen Law and Business, 1998) at 731-37.

7. President’s memorandum to department and agency heads regarding the Freedom of

Information Act, 29 Weekly Comp. Pres. Doc. 1999 (11 October 1993).

8. Attorney General’s memorandum to department and agency heads regarding the

Freedom of Information Act, Daily Report for Executives (BNA) No. 191 at 145 (5 October

1993).
On 12 October 2001, Attorney General John Ashcroft issued a new

Department of Justice policy memorandum superceding the earlier

policy.9 The new policy encourages agencies to consider carefully the

various institutional, commercial, and personal privacy reasons when

determining whether to make a discretionary disclosure of exempt

information, and provides that “the Department of Justice will defend

your decisions unless they lack a sound legal basis....” The new policy

therefore supports the assertion of a FOIA exemption if a sound legal

basis exists for the assertion, even if the agency does not reasonably foresee that disclosure would be harmful.

Ease of Access

Environmental groups and journalists have used general access to

information laws very effectively. However, inherent in the systems

established for the purpose of implementing these laws are a few burdens and constraints that affect ease of access.

Even if the government does possess relevant information, the

FOIA can be an awkward, expensive, and time-consuming means for

disseminating government-held environmental information. Although

the FOIA requires agencies to make certain categories of information

automatically available to the public–much of it through the Internet–

access to most information is granted through case-by-case responses to

specific requests. Often, the public is not aware of information that the

government possesses and is not able to identify specific classes of

records for disclosure. FOIA requests must reasonably describe the

records requested, allowing them to be identified with a reasonable level

of effort. If the agency’s staff is not able to identify the government documents that would meet the request, the agency may request clarification

from the requester, or deny the request if clarification is refused. Even if

the public believes that the information exists, it can be time consuming

for citizens or public interest groups to determine precisely what information they need, write a request that will identify this information

specifically enough so that an agency employee can provide the information in a reasonable amount of time, and, if necessary, follow up on

the request within the agency or in court, as was discussed above.

UNITED STATES 145

9. Attorney General’s memorandum for heads of all federal departments and agencies

regarding the Freedom of Information Act (12 October 2001). While this new policy

supercedes the previous Attorney General memorandum, it does not affect the presidential interpretation of the FOIA, and President Clinton’s memorandum on the

FOIA remains in effect. See online: Attorney General Ashcroft Memorandum

<http://www.usdoj.gov/04foia/011012.htm>.
The Paperwork Reduction Act, amended in 1995, has the overall

goal of having federal agencies become more responsible and publicly

accountable for reducing the burden of federal paperwork on the public.

Section 2, on the coordination of federal information policy, states that

each agency shall “ensure that the public has timely and equitable access

to the agency’s public information....” This includes “encouraging a

diversity of public and private sources for information” based on public

governmental information; providing access to data maintained in electronic format; soliciting and considering public input on the agency’s

information dissemination activities; and providing notice when changing or terminating significant information dissemination products.

Under the FOIA, agencies must make categories of records–final

opinions rendered in the adjudication of administrative cases, specific

agency policy statements and administrative staff manuals that affect

the public–routinely available for public inspection and copying. The

Electronic Freedom of Information Act Amendments of 1996 added to this

category previously released records that the agency determines may be

subject to subsequent requests. This means that, as of November 1997,

agencies were required to maintain both conventional reading rooms

and “electronic reading rooms” for documents created by the agency

after November 1996, in order to meet their FOIA Subsection (a)(2)

responsibilities. The amendments require agencies to make “reasonable

efforts” to search in electronic form or format unless this would constitute significant interference with the agency’s IT system.

Timeliness

The FOIA requires agencies to respond to an information request

within twenty days. The agency is required to notify the requestor as to

its decision to release or withhold the responsive documents within this

time period. The agency will send the requestor a letter acknowledging

receipt and stating an expected time when the requested information

will be provided. The statute authorizes the agency to seek a ten-day

extension if responding within the stipulated period is not possible. If an

agency does not do so or if it denies the request, the person who made the

request may appeal to the head of the agency, and if any information is

still denied, may file suit within specified time limits (for most agencies,

a six-year statute of limitations).

Public interest environmental groups, who often use FOIA

requests to access specific environmental information, find that the government’s actual response time varies greatly, depending on the department and the type of information requested. The public usually turns to

146 ACCESS TO ENVIRONMENTAL INFORMATION
FOIA requests when informal requests have resulted in delays or when

the material is needed without delay.

Affordability

The FOIA allows agencies to charge a fee for processing FOIA

requests according to the fee schedule that the FOIA requires each

agency to promulgate. Fees can be imposed to recover copying

expenses, the cost of searching for documents and, in some instances, the

cost of reviewing the request to determine whether any exemptions

apply. The fee is not intended to recover the full cost of providing the

information.

Under FOIA, different fees apply according to whom it is that

requests the information. For example, a member of the news media or

an educational institution may be charged only for reasonable copying

charges, but a person requesting information for commercial use is also

charged for reviewing the request and searching for the applicable

records. The FOIA requires the fee be waived if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the

government and is not primarily in the commercial interest of the

requester. Small requests are also often processed without a fee, in accordance with the applicable agency regulations.

The Paperwork Reduction Act explicitly holds that user fees charged

by agencies for disseminating information may not exceed the actual

cost of dissemination.

1.3.2 Congressional Collection and Dissemination of Information

Legislative committees in the US Congress have the authority to

require federal agencies, including the United States Environmental

Protection Agency (“EPA”), to provide documents and testimony on the

implementation of environmental laws. Although this power is not limited, Congress exercises discretion to prevent disclosure of national

security information and other sensitive matters.

In addition to making individual requests for information from

executive agencies, Congress has created a special office of its own, the

General Accounting Office (“GAO”), to provide systematic oversight of

executive agency activities. The GAO reviews agency actions, evaluates

how well the agencies have carried out the law, and reports to Congress

UNITED STATES 147
on those subjects. The GAO pursues its investigations at the request of

congressional committees or individual legislators, by statutory directive, or on its own initiative. This systematic oversight often brings to

light problems or opportunities for improvement in environmental regulatory programs and activities.

Of special relevance is the public nature of the GAO’s reports. Even

though the information requested by the GAO from the executive agencies may not be public, the final GAO report on any topic usually is a

public document. Unless they include protected national security information, GAO reports become publicly available thirty days after they

are presented to Congress. These reports not only provide the public

with information, they also often save the public much time and expense

because they present the information in a concise and organized fashion.

The GAO will mail an index of their reports at no cost to any requester

and will mail a copy of any report at no cost on request.10

Finally, the information that Congress itself generates–its legislative bills, hearings, and debates–are generally available to the public.

Much of the printed material is also available in electronic form via the

Internet.11 Debates in the two chambers are televised live (on cable television), as are selected committee proceedings. Limited public seating is

available to view official committee meetings not involving national

security secrets. Legislative committees must give advance public notice

of their meetings.

1.3.3 “Voluntary” Agency Dissemination of Information

The FOIA is heavily used by citizens, public interest organizations,

and regulated industries to obtain access to a wide range of information.

There were approximately 15,000 FOIA requests to EPA in 2000. In practice, commercial interests are among the most significant requesters, as

they often seek information on competitors or about agency processes.

To respond to FOIA requests, EPA has 83 full-time FOIA personnel and

many more with part-time or occasional FOIA duties (equivalent to 547

full-time personnel). To reduce the records management burden, as well

as to comply with various specific legal directives for access to documents, many federal agencies post agency reports, studies, policies, and

other selected documents on the Internet. These documents are also

available in agency reading rooms where people may review and (for a

nominal fee) copy them. For example, the Department of Energy main148 ACCESS TO ENVIRONMENTAL INFORMATION

10. Many of these reports are also available on the GAO web site: <www.gao.gov>.

11. See e.g., <http://thomas.loc.gov> (the Library of Congress web site for Congress).
tains reading rooms with declassified environmental and safety documents at some of its nuclear weapons production sites. These give

citizens a better sense of what records the agency has and faster access to

them, and they reduce the clerical demands that FOIA requests would

otherwise impose.

Most agencies create rulemaking dockets, with complete copies of

public comments on proposed rules, available via some sort of reading

room arrangement. Some agencies will open their offices to accommodate reasonable, informal citizen requests to view agency working files

and documents. For example, the US Forest Service has the reputation

of allowing broad access to agency data for citizens interested in the

development of forest management plans. Other agencies, such as law

enforcement or defense agencies, have the opposite reputation.

1.3.4 Judicial Branch

Almost all judicial action takes place in open proceedings that may

be fully reported in the press. Many jurisdictions allow court proceedings to be televised. In addition, private citizens involved in civil court

actions with the government or other private parties have the power to

require opposing parties to produce information relevant to the case

through the process of “discovery.” Litigants may demand the production of documents, written responses to questions, the opportunity to

question potential witnesses under oath, and other means of garnering

information. Parties faced with discovery requests may ask the court

to block such requests if they are not relevant to the trial or if they are

otherwise not allowed under the Rules of Civil Procedure. This paper

discusses discovery powers further in its explanation of citizen enforcement suits in Section 6.1.1, below.

1.3.5 “Government in the Sunshine”–Open Meeting Laws

The federal government and most state governments require

almost any group of people exercising official decision-making authority to open their meetings to the public.12 Thus, regulatory boards, commissions conducting specialized inquiries, or licensing boards must give

public notice of their meetings in the Federal Register and allow the press

and public to attend. In some cases, the open government principle may

make it difficult for decision-makers to discuss business informally with

UNITED STATES 149

12. A number of laws require this at the federal and state level and are known as “government-in-the-sunshine laws.” See e.g., 5 U.S.C. §552(b) prescribing when federal

agencies must conduct open meetings.
one another outside of public meetings. The Ohio Public Records Act and

Open Meetings Act (see Sections 1.4.1 and 1.4.2, below) are good examples of “government in the sunshine” laws at the state level.

Under the Federal Advisory Committee Act (“FACA”), even ad hoc

committees of experts assembled to advise a federal agency on specific

problems must announce their meetings and open them to the public.13

Also under the FACA, minutes and transcripts of the committee meeting

must be made available for public inspection and copying at a single

location in the offices of the advisory committee. In some instances,

though, federal agencies avoid the requirements of the FACA by seeking

advice from a series of independent experts, signing individual consulting contracts with each expert and by requiring each expert to submit an

individual report. Since there is no official committee, the public disclosure requirements of the FACA do not apply.

1.4 Overview of State Access Legislation, Policies, and Practices

Records kept by state agencies are available to the public under

state freedom of information laws. Most states have some combination

of a freedom of information act, a community right-to-know act, an open

meetings act, provisions in an administrative procedure act regulating

permitting and rulemaking, and provisions in individual environmental laws which provide for access to information during permitting,

enforcement, and other stages of the implementation process. Many

states also have environmental impact assessment (“EIA”) provisions,

either in a state EIA act or provisions within a more general environmental law.14

1.4.1 The Ohio Public Records Act

Legal Right of Access

An example of a state general freedom of information act is Ohio’s

Public Records Act, which provides access to publicly held information.15

The law requires that all public offices maintain records properly and

make them accessible to the public, with only certain exceptions. Exceptions to the Act include trial preparation records, confidential law

enforcement investigatory records and medical records.

150 ACCESS TO ENVIRONMENTAL INFORMATION

13. Federal Advisory Committee Act, 5 U.S.C. Ap. 2, §1 et seq.

14. See e.g., online: Reporters Committee for Freedom of the Press <www.rcfp.org/

tapping/index.cgi> (with links to all the state freedom of information laws).

15. R.C. 149.43 and related sections of R.C. Chapter 149 (West 1999 and Supp. 2000).
Access Policies

The state legislature has provided in the Public Records Act that the

public should have prompt access to public records.16 At the same time,

the Act allows state offices to adopt policies and procedures that limit

the number of records that may be requested by a person from that office

and sent by US mail to ten per month, unless the requesting person certifies that they are not for commercial purposes. The Act also has numerous exceptions.

Ease of Access

Under the Act, public officials must promptly prepare and make

available for inspection all public records at reasonable times, during

regular business hours. Where the public office keeps information in

databases that require microfilm or computer access, the equipment

necessary to reproduce the information must also be made accessible to

the public. Upon request, a person responsible for public records shall

make copies of public records available at cost and within a reasonable

amount of time.

Timeliness

As mentioned above, copies must be made available within a “reasonable amount of time” and records must be “promptly prepared” and

made available for inspection at “all reasonable times during regular

business hours.”

Affordability

A public office may adopt a reasonable policy setting a fee for

copies. The fee should reflect the actual costs involved in making a copy.

Public offices usually will not charge for copies where the requester is

indigent or represents a non-profit group.

1.4.2 The Ohio Open Meetings Act

Legal Right of Access

The Ohio Open Meetings Act requires all state and local officials to

take official actions and to conduct all deliberations upon official busiUNITED STATES 151

16. R.C. 149.43(B).
ness only in open meetings unless the subject matter is specifically

excepted by law.17

Public bodies must promptly prepare minutes of all public meetings. The minutes do not have to detail discussion during executive sessions, but need reflect only their general subject matter. In terms of

openness, all public bodies must take all official actions and hold all

deliberations in meetings that are open to the public. Public bodies may

only go into executive session during open meetings.

Access Policies

The state legislature has specified that the Open Meetings Act is to

be liberally construed within the goal of promoting public access to

information.

Ease of Access

Under the Act, public bodies must give notice that a meeting will

be held and, in certain instances, must identify the purpose of the meeting. Public bodies must establish, by rule, a reasonable method by which

the public can determine the time and place of regularly scheduled

meetings. A “regular meeting” is one that is held at scheduled intervals.

For special meetings, the purpose of the meeting must also be communicated to the public.

Timeliness

In Ohio, the appropriate state body must provide at least 24 hours

advance notification of a particular meeting to all news media that have

requested such notification. In addition, the public body’s meeting rules

must provide for reasonable advance notice of all meetings at which a

specific type of business is to be discussed to all persons requesting such

notice.

Affordability

A reasonable fee may be requested by the agency to provide

advance notice of meetings where a specific type of business is to be discussed.

152 ACCESS TO ENVIRONMENTAL INFORMATION

17. R.C. 121.22.
2. ENVIRONMENTAL IMPACT ASSESSMENTS

Public access to information is an intrinsic part of the laws, policies,

and practices associated with environmental impact assessments

(“EIA”s). The federal regime under the National Environmental Policy Act

(“NEPA”) provides a legal guarantee of the public’s right to know,18

as do related state regimes.

2.1 Federal Regulations and Policies

Legal Right of Access

One of the key mechanisms in the United States for accessing information on anticipated environmental effects is found in the EIA policy

established under NEPA. A federal agency must prepare an environmental impact statement (“EIS”) for each major action that could significantly affect the quality of the human environment. This includes

proposed construction projects as well as proposed legislation. The US

Environmental Protection Agency (“EPA”) is responsible for reviewing

and evaluating all EISs. EISs typically include a detailed discussion of

three essential subjects: (1) the proposed project and its alternatives;

(2) the environmental impacts of each alternative; and (3) mitigation

measures that can be taken to avoid or minimize unwanted impacts.

Under NEPA the public is accorded a legal right to access information concerning every step of the EIA preparation and decision-making

process. The government is under an explicit duty to make information

readily accessible to the public at specific points in the process.

In general, NEPA regulations require that the EIS, the comments

received, and any underlying documents be made available to the

public pursuant to FOIA.19 In the case of an action with effects of

national concern, notice of the preparation and availability of draft EISs

must be published in the Federal Register and mailed directly to interested parties. For federal actions with effects of local concern, such as the

permitting of an individual plant, publication of notice in local periodicals is also required.

UNITED STATES 153

18. 42 U.S.C. §4321 et seq.; see D.R. Mandelker, NEPA Law and Litigation, 2nd ed. (New

York: Clark, Boardman and Callaghan, 1992, supp. 1997, 1998 and 2000) and N.C.

Yost, NEPA Deskbook, 2nd ed. (Washington, DC: Environmental Law Institute,

1995).

19. For regulations regarding implementation of NEPA, see 40 C.F.R. §§1500-1508.
As part of the NEPA process, federal agencies must hold or sponsor public hearings whenever appropriate and solicit appropriate comments from the public. Agencies must also explain in their procedures

where interested parties can get information or status reports on environmental impacts and other aspects of the NEPA process. The US

system puts great weight on this public disclosure and involvement,

requiring that scoping meetings be preceded by a public notice of intent

to initiate the EIS process. The agency must publicize the availability of

the draft EIS; provide a copy to any person, organization or agency that

requests one; and actively solicit comments on it from appropriate state

and local environmental agencies, Indian tribes potentially affected, and

the general public. The agency must also hold public meetings or hearings when there is substantial interest or controversy about the proposal,

or when requested by another agency with jurisdiction over the action.

Under NEPA, federal agencies are required to prepare an EIS as

part of recommendations or reports on proposals for legislation. These

“legislative EISs” have been performed only rarely. In the few instances

where they have, legislative EISs often follow an abbreviated process for

environmental impact analysis that dispenses with many of the opportunities for public review common in project-specific EISs. For example,

an agency recommending or reporting on legislative proposals often

does not need to engage in public scoping or, except in specified circumstances, prepare a draft EIS for public comment. Still, in some cases, for

example with Forest Service wilderness designation recommendations,

the proposal is both legislative and administrative and the full process of

preparing an EIS is followed.

Finally, Section 201 of NEPA formerly required the President to

prepare and transmit to Congress an annual Environmental Quality

Report.20 The report included information on the state of the environment, trends in environmental quality and management, the adequacy

of available natural resources, a review of governmental and civil society programs and activities that affect the environment, and a program

for remedying the deficiencies of existing programs and activities.

Approximately 25 reports were produced. However, the Federal Reports

Elimination and Sunset Act of 199521 eliminated this requirement, and the

1997 Environmental Quality Report, focusing on the topic of the World

Wide Web, was the last one produced.22

154 ACCESS TO ENVIRONMENTAL INFORMATION

20. 42 U.S.C. 4341.

21. Public Law 104-66.

22. “Environmental Quality–The World Wide Web,” online: <ceq.eh.doe.gov/nepa/

reports/1997/>.
Access Policies

Executive Order 11514 on the Protection and Enhancement of

Environmental Quality was issued in 1970 and updated in 1978 to further the purposes of NEPA.23 The Executive Order makes federal agencies responsible for developing procedures to ensure the fullest

practicable provision of timely public information, understanding of

federal plans and programs with environmental impacts, and to obtain

the views of interested parties. Agency procedures must include public

hearings and provide the public with relevant information, including

information on alternative courses of action. Federal agencies are asked

to encourage state and local agencies to adopt similar procedures for

informing the public concerning their activities affecting the quality of

the environment.

Ease of Access

In general, NEPA requires very broad disclosure but it also contains exceptions such as those found in the FOIA and in cases where

information is unavailable or too costly to find.24 Controversy frequently arises over agency interpretations of such terms as “significant

impact” and questions about what levels of hazard and risk an agency

must disclose. Agencies are not required to inform citizens about a project until after screening to determine the extent of potential environmental impacts. If after screening the agency decides not to prepare an

EIS, it must prepare a Finding of No Significant Impact (“FONSI”) and

notify the affected public of its decision.25

The scoping process under NEPA, wherein the scope of issues and

environmental impacts to be considered in the EIS are determined, is

also open to the public. This means that the public has access to background information that will be considered during scoping. The public

also has access to all information that is developed during the entire EIS

process and incorporated into the draft and final EIS, as well as all comments and underlying documents.

Agencies are required to circulate the entire draft and final EIS to

any person or organization that requests it. As a practical matter, it is

very easy for the public to access these documents. A letter, a phone call,

UNITED STATES 155

23. 3 C.F.R. §902 (1966-70); as amended by Executive Order 11991, 3 C.F.R. §123 (1978).

24. 40 C.F.R. §1506.6.

25. See generally 40 C.F.R. §1501.
or a visit is enough. Agencies will often keep mailing lists of people who

have shown past interest in agency projects and automatically send

them a notice of availability of draft and final EISs. Agencies may automatically send copies of draft and final EISs to groups and individuals

with a well-known interest in a project, such as local politicians, journalists, and NGOs.

Timeliness

If a governmental agency intends to prepare an EIS, it must publish

a notice of intent as soon as practicable and, in any case, before beginning

scoping. Prior to preparing any detailed EIS, the responsible federal official must consult with and obtain the comments of any federal agency

that has jurisdiction by law or special expertise with regard to the environmental impact involved. Copies of such statements and the comments and views of the appropriate federal, state, and local agencies

authorized to develop and enforce environmental standards are to be

made available to the public.

Affordability

Under NEPA regulations, material requested by the public is to be

made available by the agency at no charge, if possible, or at actual cost.

2.2 Selected State Regulations and Policies

Approximately one-third of the states in the United States have

EIA requirements under state environmental law. Specifically, Arkansas, California, Connecticut, Florida, Hawaii, Indiana, Maryland, Massachusetts, Minnesota, Montana, New York, North Carolina, South

Dakota, Virginia, Washington, and Wisconsin, as well as Puerto Rico

and the District of Columbia all have state EIA requirements.26 Virtually

all states have procedures for notifying the public of forthcoming meetings, among which are public hearings on proposed EIAs, even if not

already specified by the EIA provisions of the law.

The California Environmental Quality Act, one of the most comprehensive state EIA laws, provides a good example of access to information concerning the EIA process at the state level.27

156 ACCESS TO ENVIRONMENTAL INFORMATION

26. D. P. Selmi and K.A. Manaster, State Environmental Law (St. Paul: West Group, 1999)

at §10.

27. Cal. Pub. Res. Code §§21000-21193 (West 1999 and Supp. 2000).
2.2.1 California’s Environmental Quality Act

Legal Right of Access

The California Environmental Quality Act (“CEQA”) was among the

models used by the US in developing the provisions implementing

NEPA. The Act requires that an environmental impact report (“EIR”) be

prepared balancing the pros and cons of any major project. In the case

where a report is not required (i.e., where the potential environmental

effects are not significant), the agency must prepare a negative declaration, except when the project is specifically exempted by law.

Ease of Access

The California EIA process gives the public two opportunities to

receive information concerning a proposed EIR: first, when the goals are

being set and second, during the process which determines the scope of

the environmental review process. Once goals are drafted, several public hearings are usually held to present information and to provide

opportunities for public comment. At the different stages of the process,

the public has access to information on the proposed goals, alternatives,

the draft EIR, the final EIR, and the final proposed action.

Timeliness

Notice of draft and final EIR and planning meetings must be made

at least 10 days prior to the meeting, be posted in or near the affected

area, and be published in a locally available newspaper at least 10 days

before the meeting. The notice must contain full information about the

location, time and agenda of the meeting and contain any rules to be

followed at the meeting. Decisions may not be made at the meeting on

matters for which notice was not provided.

3. LICENSES OR PERMITS FOR PROPOSED PROJECTS

Permits are issued to facilities under most of the major environmental statutes through federal programs and through state programs,

including those that were delegated under the federal environmental

statutes. In this section, public access to environmental information

relating to the permitting process is discussed through examples of

approaches taken under federal and state law.

UNITED STATES 157
3.1 Federal Regulations and Policies

An environmental permit is a legal document that specifies the

conditions under which a regulated facility may operate, the types and

amounts of pollutants it may discharge, and requirements as to reporting, record keeping, operation, maintenance, and all aspects of monitoring, including frequency, methodology, and sampling locations. In

addition to providing specific limits on the pollution that a facility may

discharge, a permit may specify a range of other requirements concerning the facility’s operation, including the disclosure of important technical (and even financial) information about the facility and its operations

and emissions.

Environmental agencies in the United States use permits to regulate a number of environmental problems, including air emissions, the

discharge of water pollution, the operation of mines, and the treatment,

storage, and disposal of hazardous wastes.28 Rules for issuing, modifying, and revoking permits under media-specific programs include procedures for public participation and access to information.29

The public can play a significant role in the environmental permitting process. In some ways, the public’s involvement in permitting bears

many similarities to its involvement in notice and comment rulemaking,

discussed in the next section. Additionally, when an individual has legal

standing to challenge a permit (e.g., because it could affect the person’s

use and enjoyment of a natural resource), such a challenge before a judicial or administrative body offers additional opportunities to obtain

information, for example through discovery.

3.1.1 Legal Right of Access

Generally, public interest is greatest when a new facility seeks a

permit. If, however, a community has experienced problems with a permitted facility, or new pollution control standards have become applicable, a facility’s application for permit renewal also tends to generate

public attention. In either case, there are opportunities for the public to

submit comments or participate in public hearings prior to the decision

to grant or deny a facility’s application.

158 ACCESS TO ENVIRONMENTAL INFORMATION

28. For air emissions, see Clean Air Act Amendments of 1990, Title V, §§501-507. For

the discharge of water pollution, see Clean Water Act, Subchapter IV, 33 U.S.C.

§§1341-1345. For the operation of mines, see Surface Mining Control and Reclamation

Act, Subchapter V, 30 U.S.C. §§1251-1279. For the treatment, storage, and disposal

of hazardous wastes, seeResource Recovery and Conservation Act, 42 U.S.C. §§6925.

29. See e.g., 40 C.F.R. Part 124.
When a government agency receives an application for a permit or

a permit renewal, it first confirms that all necessary information has

been provided. Once a federal agency has received a complete application, it may decide either to deny the application or to begin preparing a

draft permit.30 Depending on the type of the permit, the government

may provide public notice and the opportunity for comment before the

agency actually begins to draft the permit. This ensures that the permit

writers review public comments before drafting the permit language.

Frequently, notice is delayed until after a draft permit has been prepared

to allow the public to focus its comments on actual provisions of the proposed permit.31

Notice of permitting must indicate all relevant details concerning

each specific permit, such as the name and address of the facility, as well

as the business and industrial processes that will be carried out there. It

may also describe the nature, quantity, and frequency of the discharges

from the facility, and any anticipated environmental effects from these

discharges. Depending on the facility and pollutants involved, the

notice may provide additional information to assist the public in evaluating the likely impact of the proposed activity. For example, if a facility

is planning to release pollutants into surface waters, the notice must

identify the location of all discharge points at the facility and the name of

the receiving waters, and it may mention water quality standards applicable to the waters and whether the waters currently meet those standards. The notice must also state whether an EIA has been prepared.32

3.1.2 Access Policies

EPA’s 1981 Policy Statement on Public Participation33 covers

rulemaking (when regulations are classified as significant), the administration of permit programs, and program activities supported by EPA

financial assistance to state and local governments. The purpose of the

policy is to strengthen the EPA’s commitment to public participation

and establish uniform procedures for public participation in the EPA’s

decision-making process. The policy affirms the view that only through

exchange of information between the EPA and the public can good

environmental decisions be reached. Agency officials are expected to

provide for, encourage, and assist public participation. The policy

encourages officials to strive to communicate with, and listen to, all

UNITED STATES 159

30. 40 C.F.R. §124.6.

31. See 40 C.F.R. §124.10(b) (applicable to state-delegated programs under the federal

Clean Water Act, Resource Recovery and Conservation Act, and UIC).

32. See 40 C.F.R. §124.10(d)(1).

33. 46 Fed. Reg. 5740 (19 January 1981).
sectors of the public. The policy assumes that agency employees will

strive to do more than the minimum required, and is not intended to

create barriers to more substantial or more significant participation.

Because the policy recognizes the agency’s need to set priorities for its

use of resources, it emphasizes public participation in those decisions

where options are available and alternatives must be weighed, or where

substantial agreement is needed from the public if a program is to be

carried out.

On the whole, the policy clearly sets out that public participation

should begin early in the decision-making process and continue

throughout as necessary. The agency is required to set forth options and

alternatives beforehand, and seek the public’s opinion on them. Merely

conferring with the public after a decision is made does not achieve this

purpose, according to the policy. The role of agency officials under the

policy is to plan and conduct public participation activities that provide

equal opportunities for all individuals and groups to be heard.

EPA is in the process of updating its Policy Statement on Public

Participation. On 28 December 2000, EPA issued a Draft 2000 Public

Involvement Policy that reflects the addition of statutes under EPA administration, technological changes (such as the advent of the Internet),

and advances in public participation techniques.34 In the public review

process, most commentators found the 1981 Policy to be a good framework, but they proposed a number of specific mechanisms to improve

its implementation, including providing notices and information in

easy-to-understand, plain English; informing the public earlier; and

increasing the use of the Internet to provide public access to information.35 It is anticipated that the new policy will be finalized in spring

2002.

Ease of Access

Federal permitting regulations in the United States require federal

agencies to maintain lists of all interested persons and organizations in a

region, and to mail notices of the proposed permit to these people.36

These interested parties might include local civic associations, local

160 ACCESS TO ENVIRONMENTAL INFORMATION

34. Online: EPA <www.epa.gov/stakeholders/policy.htm> (date accessed: 7 November 2001).

35. EPA Public Participation Policy Review Group, Engaging the American People: A

Review of EPA’s Public Participation Policy and Regulations with Recommendations for

Action, EPA 240-R-00-005 (Dec. 2000).

36. 40 C.F.R. §124.10(c)(1)(ix).
chapters of environmental organizations, trade union representatives,

recreational associations, and other groups likely to be affected by the

proposed activity. Mailings of this nature, combined with official government bulletins, notices in local newspapers and radio broadcasts, are

used to alert interested members of the public of a pending permit application. The agency is required to notify all communities and political

jurisdictions whose environment might be affected by a facility’s operation, not just those situated in the immediate vicinity of the facility.

Because permit applications and draft permits are technical in

nature, they may be difficult for non-experts to understand. Under US

permitting laws, non-technical documents called “fact sheets” are often

required.37 The fact sheets give a brief description of the discharges from

the facility, the proposed limitations on those discharges, and requirements for compliance and monitoring. They also include an explanation

of the rationale used in developing the proposed discharge limitations.

Fact sheets are required to be made available to the public, and are

mailed to anyone who requests a copy. They provide, in less technical

form, much of the information upon which interested citizens base their

comments.

Notice of a proposed permit typically instructs members of the

public about how they can participate in subsequent phases of the permitting process. The notice includes a description of the procedures for

submitting comments on the permit, and the procedures for requesting a

public meeting on the issue. The names and addresses of the agency personnel responsible for the permit are also provided, along with directions about how interested parties may obtain copies of the permit

application, the fact sheet, and other relevant documents.

The use of other types of notice beyond official government notice

is important in the context of permitting because of the significant

impact a permitting decision can have on communities affected by a

facility’s operations. In addition, the use of supplemental forms of notice

is feasible in the permitting context because the geographic scope of a

permit is typically fairly small. Local newspapers and radio stations in

the United States are likely to be a community’s major source of information. Notice of a proposed permit will reach the greatest number of people in a community if it is published or broadcast through those media,

and permitting laws require or encourage their use.38

UNITED STATES 161

37. E.g., 40 C.F.R. §124.8.

38. 40 C.F.R. §124.10(c)(2)-(4).
Timeliness

The agency usually must notify the public of its action as soon as

possible, and preferably before a final decision is made.39

Affordability

The actions discussed above, such as advertising the permit application and mailing fact sheets or copies of the application are taken at no

or minimal cost to the public.

3.2 Selected State Regulations and Policies

Permitting is carried out at the state level, both under state programs to which authority for implementing the federal environmental

statutes has been delegated, and also under state environmental statutes

and state administrative procedure regulations. Permits issued under

state programs that implement the federal environmental statutes come

under the federal permitting requirements for public participation and

access to information described above. For permits that do not fall under

federal law, most states have some sort of notice requirement which vary

in the detail and nature of the information provided, and which concern

to whom notice must be provided and in what fashion. Permitting rules

and practices in Tennessee and New Jersey are fairly typical examples of

access to information during the permitting process at the state level.40

3.2.1 Tennessee

Legal Right of Access

Environmental permits in Tennessee are generally issued under

the federally delegated state environmental programs for air, water, and

waste. Each division creates its own specific rules for involving the public in the permitting process. The public notice provides the name of the

company applying for the permit, the type of operation, and the contact

information for the governmental engineer assigned to prepare the

permit. If the division receives a substantial number of comments, a public hearing will be scheduled.41

162 ACCESS TO ENVIRONMENTAL INFORMATION

39. 40 C.F.R. §124.10.

40. Some states, such as Texas, have relatively comprehensive procedures for permitting that includes, inter alia, the opportunity for adjudicatory hearings that allow

for discovery of documents from the permit applicant as well as from the permitting agency. These hearings frequently make much more information publicly

available than notice-and-comment hearings.

41. E.g., Tenn. Code § 68-211-703 (permitting of proposed landfills).
Ease of Access

The notice is published in local newspapers, and both the notice

and the draft permit are available for review at public depositories,

which are usually local libraries around the state. There is no hotline or

toll-free number provided for interested persons; to discuss the proposed permit with the engineer or to receive more information, any

interested member of the public located outside the capital will have to

make a long-distance call. If detailed information on the process is

requested, this will only be available in Nashville. Any individual can

call the engineer for more information and will usually be able to get limited information over the telephone. Private citizens are usually given

more assistance than commercial consultants.

Timeliness

The comment period will be anywhere from 30 to 45 days, depending on the division.

Affordability

The cost of the requested material depends on how much information is requested and who asks for it. If an entire file is requested, the

individual will most likely be asked to come to the office in the Capitol or

to the local library/depository to review it in person and make copies,

with a price per page.

3.2.2 New Jersey

Legal Right of Access

The New Jersey Water Pollution Control Act is an example of a state

environmental law with access to information requirements regarding

the permitting process.42 In general, any information obtained by the

government pursuant to this Act must be available to the public, with

the standard exemption for trade secrets. The Act explicitly provides for

notice and opportunity for public hearings in the case of every proposed

new permit, as well as for every proposed permit suspension, revocation

or renewal, or any substantial modification of a permit. Notice of all

modifications to a discharge permit must be published in the New Jersey

Department of Environmental Protection Bulletin.

UNITED STATES 163

42. N.J. Statutes Annotated, Title 58, Chapter 10A (West 1992 and Supp. 2001).
4. PROPOSED REGULATIONS, POLICIES, PROGRAMS,

OR PLANS

4.1 Introduction

This section describes public access to environmental information

about proposed regulations, policies, programs, or plans in the United

States. It focuses on notice and comment rulemaking procedures under

the federal Administrative Procedure Act (“APA”). Like the FOIA, these

procedures apply beyond environmental rulemaking, but they have

been useful to citizens who wish to have access to the governmental

decision-making process in environmental matters.

The APA prohibits governmental agencies from making formal

decisions that are “arbitrary and capricious.43” Under this provision, the

courts have required that agencies be able to justify their actions by producing a written “administrative record” of the documents that support

their actions. The administrative record must be available for public

scrutiny and for submission of relevant information by the public. In

addition, it is open to FOIA requests and must be made available if the

agency decision is challenged in court.

Sometimes a program for environmental regulation is so complex

that industry and citizens require help understanding it. The government may establish information offices to respond to questions from the

public about regulations. The EPA has set up several telephone “hotlines” that industry and the public can call without charge to ask questions about regulatory requirements, as well as to request information

about governmental activities.44 In addition, the EPA has a Small Business Ombudsman to answer questions from small businesses and to

advocate the point of view of the small business community in agency

proceedings.

4.2 Federal Regulations and Policies

Legal Right of Access

Notice and comment or legislative rulemaking is a particular

method of developing legally binding administrative rules. Notice and

comment rulemaking has become the most common method of enacting

164 ACCESS TO ENVIRONMENTAL INFORMATION

43. 5 U.S.C. §706.

44. See e.g., online: <www.govinst.com/resourcecenter/resource/envirohotlines.

html> (date accessed: 30 April 2002) (listing federal environmental hotlines).
rules in the United States. The APA, enacted in 1946, represents the first

comprehensive codification of administrative procedure in the United

States and governs, among other things, the process of notice and comment rulemaking applicable to federal agencies.45 Notice and comment

rulemaking requires the agency to notify the public of a proposed rule

by publishing it in the Federal Register and to consider and respond to

written comments submitted by the public before adopting a final rule.

Many of the notice and comment rulemaking requirements derive

from judicial interpretations of the APA, and are not found in the words

of the statute itself. In general, the law allows affected members of the

public to challenge regulations in court and allows courts to overturn

regulations if, among other issues, the agency fails to provide the public

with proper notice and opportunity to comment on draft regulations or

fails to consider significant public comments.46

Access Policies

In 1993, President Clinton issued Executive Order 12866 regarding

regulatory planning and review. The Executive Order describes, in part,

a regulatory review process designed to be more open and accessible to

public scrutiny. The President ordered his administration to make its

regulatory review process more accountable and open to public examination. The Office of Information and Regulatory Affairs is in charge

of implementing the Executive Order. The goals of this office are to

increase public involvement in the rulemaking process by using informal means in addition to the more traditional formal means represented

by the notice and comment process.

The Clinton Administration also encouraged “negotiated

rulemaking” which involves interested parties directly in the rule drafting process, even before the notice period. By involving interested parties directly in drafting a rule, and by having them negotiate out some

areas of disagreement, the Administration expects the rule will be more

intelligently drafted and less contentious when proposed.47 Section 6 of

UNITED STATES 165

45. See 5 U.S.C. §706.

46. See supra, note 6; see also R.J. Pierce and K.C. Davis, Administrative Law Treatise,

4th ed. (Boston: Little, Brown and Company, 2002).

47. But see David D. Doniger, “Standing Committee Symposium on The Role of

Private Institutions in Public Environmental Decisionmaking: Negotiated

Rulemaking: D. Negotiated Rulemaking at EPA: The Examples of Wood Stove

Emissions and Truck Engine Emissions”, (1987) 17 E.L.R. 10251 (noting that a lack

of resources by NGOs can limit the effectiveness of negotiated rulemaking) and

Matthew Schuckman, “Making the Hard Choices: A Collaborative Governance

Model for the Biodiversity Context”, (2001) 79 Wash. U. L.Q. 343 at 354-57.
the Executive Order directs agencies to explore and use regulatory negotiation in order to develop rules more by consensus.

For other policies relevant to rulemaking, see the discussion of the

EPA’s Policy Statement on Public Participation in Section 3.1.2, above.

Ease of Access

Unless potentially interested parties are made aware of a proposed

rule, they will be unable to express their views on it, and public participation in the rulemaking process will be effectively defeated. Publication of the proposed rule in the Federal Register is meant to reach a wide

public audience.

Proposed rules of federal agencies are published daily in the Federal Register, the official government publication for this purpose. The

Federal Register is reliable, timely, and accessible. It is available on the

Internet,48 and in print form in many public libraries and government

offices, and it collects in a single place the government’s entire rulemaking agenda.

Unfortunately, the very breadth of the publication can make it

large and unwieldy. In practice, few ordinary citizens actually read the

Federal Register, and the publication is used primarily by lawyers and

regulated firms having a special interest in particular cases.

Individuals not only have a right to know what the government is

saying, they have a right to know what others are saying to the government. The APA bans one-sided discussions and provides for open dockets where any individual can examine the administrative record to see

what other people have said (at least in writing) about the proposed rule.

Agencies keep copies of comments received on proposed regulations in

the open docket, available for inspection at agency offices or through the

use of the FOIA. Agencies will often designate a contact person, whose

name and phone number are then printed with the draft and final rule in

the Federal Register, to field inquiries about the regulation. Comments on

a proposed rule must, however, be submitted in writing during the

declared comment period.

Even with publication requirements in the Federal Register and in

local newspapers, large segments of the local population do not have

166 ACCESS TO ENVIRONMENTAL INFORMATION

48. See online: Government Printing Office <www.access.gpo.gov/su_docs/aces/

aces140.html> (date accessed: 20 March 2002).
access to information concerning proposed regulations. For example, if a

rule is going to affect a largely Central American population in New

York, notice of the proposed rule in the New York Times (the main daily

newspaper) will not be effective in informing the target population. The

information would need to be in Spanish and disseminated through

other means than the printed news media. When dealing with a largely

Hispanic community, for example, the most effective way to give notice

is through Spanish-language radio stations.

Timeliness

The APA does not give a specific time limit within which notice of a

proposed rule must be published. However, because an agency cannot

proceed to issue a final rule until an opportunity has been given for the

public to comment, there is pressure for the agency to make the proposed rule available to the public as soon as possible. The agency

is required to allow sufficient time to receive and consider public

responses before it adopts the final version of a rule. In the United States,

comment periods usually last at least 30 days.

Affordability

Under most agency rulemaking procedures, documents are made

available to the public at minimum cost and the agency may waive or

reduce the costs in the public interest.49 Moreover, under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”),

for example, EPA can award “technical assistance” grants to local community groups to allow them to receive expert advice that will help

them understand, and comment on, proposed government decisions

regarding a particular Superfund site (but not for participating in rulemaking).50

In the context of the open meetings principle of the Federal Advisory

Committee Act and other similar laws, funds can be made available by the

government for travel expenses and reasonable per diem expenses of citizen organizations in order to facilitate their participation.

4.3 Selected State Regulations and Policies

Most states have some version of notice and comment or legislative

rulemaking provisions, either in their administrative procedure acts or

UNITED STATES 167

49. See e.g., Clean Air Act, 42 U.S.C. §7607(d)(4)(A).

50. Technical Assistance Grants to Groups at National Priorities List Sites, 54 Fed. Reg.

49848 (1 Dec. 1989). Provided for in 42 U.S.C. §9617(e), CERCLA §117(e).
directly in their environmental statutes. In general, these provisions do

not differ greatly from the federal procedures outlined above. The California Administrative Procedure Act provides an example of access to

information concerning proposed regulations at the state level.51

4.3.1 California’s Administrative Procedure Act

Legal Right of Access

In California, every agency drafting a regulation must make the

proposal, and an initial statement of reasons for proposing the regulation, available to the public upon request. Notice of the proposed regulation must be mailed to every person who has filed a request for notice of

regulatory actions and may be mailed to any person whom the agency

believes to be interested in the proposed action. Notice of the proposed

regulation must also be published in the California Regulatory Notice

Register. Individual statutes can prescribe more stringent notice rules. In

addition to the full text of the proposed regulation, notice must include

the time, place, and nature of proceedings for adopting the proposed

regulation, the date by which comments are due, the name and telephone number of the agency officer to whom inquiries concerning the

proposed administrative action may be directed, as well as information

concerning related laws and regulations. The agency officer in charge of

the proposed regulation must also make available to the public upon

request the location of public records, including reports, documentation, and other materials related to the proposed action. The agency

must notify the public of changes to the proposed action at least 15 days

before the agency adopts the resulting regulation. Also, state agencies

may not add material to the record of the rulemaking proceeding after

the close of the public hearing or comment period, unless adequate provision is made for public comment on that matter.

Access Policies

The general policy for access to information concerning proposed

regulations in California is to encourage the widest possible notice distribution to interested persons.

Ease of Access

The California APA has a requirement that proposed regulations

be written in “plain English,” meaning language that can be interpreted

168 ACCESS TO ENVIRONMENTAL INFORMATION

51. California Administrative Procedure Act, Government Code §11340 et seq. (West 1992

and Supp. 2001).
by a person who has no more than an eighth grade level of proficiency in

English. If it is not possible to use plain English due to the technical

nature of the regulation, the agency is required to prepare a noncontrolling plain English summary of the regulation.

Every agency must maintain a file of each rulemaking, including

copies of petitions received from interested persons, all published

notices, the determination, all studies and supporting documentation,

and the minutes of any public hearing. The file must also contain an

index or table of contents that identifies each item contained in the

rulemaking file and must be available to the public.

Timeliness

The agency must give notice of the proposed regulation at least

45 days prior to the close of the public comment period on the proposed

regulation. At the time of the close of the public comment period, a public hearing will typically be scheduled.

Affordability

The California Office of Administrative Law must make the Regulatory Notice Register available to the public at a nominal cost only.

5. TOXICS RELEASE INVENTORY

5.1 Federal Regulations and Policies

Legal Right of Access

The Emergency Planning and Community Right-to-Know Act

(“EPCRA”) is aimed at informing local governments, emergency

response authorities, and the general public about environmental emergencies, as well as potential threats from ongoing releases of pollution

into the environment. The EPCRA calls for the creation of state and local

emergency preparedness bodies to plan for and receive notice of accidental releases of hazardous substances.52 Any facility that possesses

listed substances in excess of the threshold amounts must notify the local

emergency planning body of their existence and give immediate notice

of any accidental releases. Although Congress designated an initial list

of substances, the EPA can add substances to or subtract them from the

UNITED STATES 169

52. EPCRA §§301-304, 42 U.S.C. §11001-11004.
list, and can set the threshold amounts for all listed substances. On

request of the state or local emergency planning bodies, facilities may be

required to submit more detailed information on the storage and use of

each individual substance they possess.

Section 313 of the EPCRA requires the EPA to prepare a Toxics

Release Inventory (“TRI”) of more than 650 listed toxic chemicals

released into the environment by manufacturing operations of a certain

size. Facilities covered under Section 313 must make annual reports to

the EPA. Many of the listed chemicals are not regulated by the EPA

under any other program but nonetheless must be reported. In addition

to release amounts, the TRI requires detailed substance-specific information on amounts emitted into the air from fugitive, non-point, and

point sources; discharged to a stream or to a public wastewater sewage

system; and released as hazardous waste to underground injection,

off-site treatment facilities (e.g., recycling or incineration), and disposal

(i.e., landfills or surface impoundments).

Companies required to report under the TRI must submit an

annual report to the EPA, indicating which listed chemicals they use, in

what quantities, how their waste streams are treated, and how much of

each chemical is released into the environment, by medium (e.g., air,

water, soil). Each year, the EPA releases a summary of the TRI information reported by the covered companies, including detailed analyses

and facility-specific breakdowns of the TRI data. This report is also made

publicly available.53

Section 313 of the EPCRA is a very strong public disclosure provision, in part because it requires strict substantiation of claims that information should not be disclosed on the basis that it is confidential

business information or contains trade secrets.54 The EPCRA also provides heavy penalties for, and citizen suit opportunities against, facilities that do not comply with TRI requirements. State and local

governments also can impose broader information disclosure requirements than those found in the federal law, provided confidential information remains protected. The EPCRA creates an exception to trade

secret protection in that it guarantees health care professionals access to

chemical information if needed for treatment or prevention of injuries.

In non-emergency cases, however, the health care professional must

agree to protect trade secrets before gaining access to the information.

170 ACCESS TO ENVIRONMENTAL INFORMATION

53. See e.g., online: EPA <www.epa.gov/triexplorer/>.

54. US Environmental Protection Agency, “Environmental Protection Agency Pollution Prevention Strategy,” 56 Fed. Reg. 7849 (26 February 1991).
The EPCRA presents several challenges worth noting. First,

because it imposes an affirmative obligation on a large and constantly

changing group of companies to come forward with information, the

law can be difficult to enforce. How does the government or citizen

enforcer identify the small company that mis-reports or should be

reporting but is not? How do they find the company that under-reports

its discharges? Finally, the important improvements in accessibility

achieved by the EPCRA, Section 313, are limited by the scope of the

inventory, which exempts or excludes important emissions information,

especially from non-manufacturing facilities and for small quantities of

extremely hazardous substances.

A further challenge is presented by the general lack of public

awareness of TRI data availability, even in areas with high levels of

chemical emissions. The EPCRA does not require the EPA to implement

a public outreach program, and the lack of an EPA strategy for assessing

the informational needs of different sectors of the public hampers

the goal of ensuring public access to TRI data. Nevertheless, TRI is

well-known and frequently relied upon by communities and environmental advocacy groups around the United States, and the media frequently reports the release of new TRI reports.

Access Policies

Government policies regarding public access to information made

available through the EPCRA are further developed in the EPA’s Pollution Prevention Strategy, published in 1991.55Under this strategy, the EPA

has set a series of pollution prevention goals for its work with the regulated community. For example, in the Pollution Prevention Strategy, the

EPA acknowledges the need for “more and better” information on the

environmental performance of both consumer products and industrial

facilities. Accordingly, the EPA has been using the EPCRA reporting

requirements in order to implement these principles in its programs.

Ease of Access

The public can obtain copies of the information made available

under the EPCRA from the local emergency planning committee, which

must publish annual notices of availability.

The EPCRA directs the EPA to maintain TRI data on a computer

accessible database. The EPA’s TRI Reporting System is accessible to

UNITED STATES 171

55. Ibid.
anyone with access to the Internet who has applied for and received a

user identification code through the National Library of Medicine. With

this code, any individual can access the database through the Internet.

By accessing the database, a citizen can quickly obtain a report on which

companies are discharging what chemicals in what quantities to what

media in any part of the country. Citizens without telephone access can

purchase computer-readable copies of the inventory, and those without

computers can ask the EPA to search the inventory for particular information. In addition, the TRI database is available on microfiche or

CD-ROM format at over 4,000 locations around the country–many of

them public libraries–where people can go to use the database free of

charge. A toll-free hotline also exists to answer questions from the public

about the TRI system, conduct searches, and explain other aspects of the

EPCRA.

The EPA makes the raw TRI data publicly available, and some

NGOs have processed the information to make it more publicly accessible and understandable. For example, Environmental Defense’s “Scorecard” is an Internet site (www.scorecard.org) at which citizens can

identify facilities and the TRI releases in their neighborhoods and learn

about ambient environmental quality and health risks at the same time.

Such NGO sites complement governmental Internet dissemination of

TRI data through TRI Explorer (www.epa.gov/triexplorer/), Envirofacts (www.epa.gov/enviro/html/ef_overview.html), and the

National Library of Medicine (NLM) TOXNET System (toxnet.nlm.

nih.gov/).

Timeliness

The requirement to make information publicly available through

telecommunications directly from the EPA-maintained computer database gives the public access to new data as soon as EPA has updated the

computer collection. The companies report their releases on a calendar

year basis, within six months of the end of the calendar year. It usually

takes some months for EPA to review all the submitted information and

enter it into the TRI database. For example, EPA released the 1999 data

(reported by July 2000) in April 2001.

Affordability

As mentioned above, the availability of information from the TRI

through computer modem, on CD-ROM, in public libraries, through

hotlines and information requests makes it possible for almost any citi172 ACCESS TO ENVIRONMENTAL INFORMATION
zen to access the database at little or no charge. The statute specifies that

the information is available on a cost-reimbursable basis.

5.2 Selected State Regulations and Policies

Approximately half of the states in the United States have rightto-know (“RTK”) laws which complement the general freedom-ofinformation laws common to most states.56 Under these RTK laws, information disclosed is often derived from environmental surveys of the

facilities conducted by the government. These surveys generally identify the conditions at the facility and chemicals that may be dangerous to

community residents if released into the environment. The information

from these surveys is made available to the public. Such surveys may be

conducted as a result of a statutory requirement or a public request for

information. Generally, trade secrets, privileged, or confidential information is not disclosed, although most RTK laws contain exceptions for

medical emergencies, requiring disclosure of chemical information if it

is needed by a physician to treat or diagnose an individual exposed to

the substance. The New Jersey Worker and Community Right to Know Act

provides a good example of a state right-to-know law.57

5.2.1 New Jersey’s Worker and Community Right-to-Know Act

Legal Right of Access

The New Jersey Worker and Community Right-to-Know Act allows

state and local officials and individuals to find answers to many questions about complex pollution problems. Facilities using hazardous

chemicals must submit annual inventory reports about the presence and

movements of toxic substances to the EPA, the New Jersey Department

of Environmental Protection, and the state’s local emergency planning

committee. All inventory information is available to the public. Each

year, every facility covered by the law must conduct an environmental

survey of all the chemicals and conditions at the facility that may be dangerous to community residents if released into the environment. These

surveys are detailed reports about the amounts, hazards, and locations

of specific substances at the facility. The New Jersey Department of

Environmental Protection has developed a list of hazardous substances

covered by the law.

UNITED STATES 173

56. The following states have right-to-know laws: California, Connecticut, Delaware,

Florida, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Massachusetts, Minnesota, Missouri, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Oregon,

Pennsylvania, Rhode Island, Vermont, Washington, West Virginia and Wisconsin.

57. N.J. Stat. Ann. §§34:5A-1 to 34:5A-31 (West 2000 and Supp. 2001).
If a citizen challenges a facility’s claim that certain information falls

within a statutory exception to disclosure, the New Jersey Department

of the Environment will ask the facility to show it why the information

should be shielded from public disclosure. If the facility does not give a

sufficient or proper reason, the New Jersey Department of the Environment may disclose the information to the person who requested it. In

very limited circumstances, such as a medical emergency, the New Jersey Department of the Environment will disclose this information to

health professionals who need access to the information to deal with the

emergency. In almost all cases, the law requires that these health professionals enter into an agreement not to disclose the confidential information.

Ease of Access

Facilities must submit their surveys to the local police department,

local fire department, local emergency planning committee, a designated county agency and the New Jersey Bureau of Hazardous Substances Information. The law requires the New Jersey Department of

Environmental Protection to establish a central file for all the surveys

they receive.

The public may obtain right-to-know information from several

sources in New Jersey. One source is the New Jersey Department of the

Environment. Information is obtained simply by sending a written

request to their Bureau of Hazardous Substance Information. By clearly

specifying the type of information requested, requests will be expedited.

At the very least, requesters should identify the name and location of the

facility about which they are requesting information. Another source of

information is the county-lead agency, which is a designated agency in

each county, usually the county health department, funded under the

Worker and Community Right to Know Act. Each county-lead agency has a

Right-to-Know Coordinator who responds to requests for information

and assists facilities in complying with the law.

Timeliness

The New Jersey Department of the Environment will respond to a

citizen’s request for information within 30 days.

Affordability

The New Jersey Department of the Environment will not charge if

the information requested is less than 50 pages of material. If the request

is larger than 50 pages, there is a charge of ten cents per page.

174 ACCESS TO ENVIRONMENTAL INFORMATION
6. ENFORCEMENT AND COMPLIANCE ACTIONS

While the US common law doctrine of prosecutorial discretion

denies citizens a voice in agency decisions on whether and when to use

governmental enforcement power,58 Congress has granted citizens their

own enforcement rights in the form of citizen suit provisions that can

now be found in most of the major environmental statutes. These provisions supplement agencies’ enforcement capabilities and give citizens a

role in the enforcement process. For citizen suits to be practical, members of the public must have access to accurate information about the

compliance status of regulated entities. In fact, some federal statutes and

implementing regulations provide that in federal environmental programs that are delegated to the states, a state must allow citizens to intervene in enforcement proceedings if the state does not already provide

for citizen suits under state law.59

Access to information is the primary means by which the federal

government allows citizens to participate in governmental decisions to

enforce environmental laws. By accessing information, citizens are able

to determine whether an environmental law, regulation, or permit has

been violated, whether the government has taken actions to prosecute

the violation, and what form of action citizens should take to enforce or

promote compliance with the law.

Accurate information requires that the data be collected and provided to the government by regulated facilities and that the government

provide the data to members of the public on request. Because the regulated community is so large, one way to increase the effectiveness of government efforts to gather environmental compliance data is to have the

regulated parties monitor and report on their own discharges. In this

approach, regulated entities must submit regular, detailed reports of

monitoring results to federal and state agencies and must keep records

of their monitoring results. Because the monitoring reports of regulated

entities generally are sworn statements, reports that show violations are

usually enough to prove liability in enforcement suits, either by the government or by private individuals. Significant civil and criminal penalties (for individuals, as well as the regulated entity) for fraudulent

UNITED STATES 175

58. See Heckler v. Chaney, 470 US 821 at 830-31 (1985) (holding that an agency’s decision

not to prosecute or enforce is generally committed to an agency’s absolute discretion).

59. E.g., 33 U.S.C. §1251(e) (Clean Water Act); 40 C.F.R. §123.27(d) (CWA implementing

regulations); 30 C.F.R. §732.15(b)(10) (implementing regulations for the Surface

Mining and Reclamation Act); see generally M.D. Axline, Environmental Citizen Suits

(Salem: Butterworths, 1991) § 4.02(A).
reporting encourage accurate reporting, even if permit violations are

thereby reported. Most US environmental statutes contain monitoring,

inspection, record keeping, and reporting requirements. The EPA collects this information and maintains a computer database that also

includes enforcement information.

Aside from certain exceptions, enforcement information is also

accessible for private individuals and allows them to monitor the compliance status of regulated facilities and enforcement actions of the government. Under the FOIA and various state open records laws, members

of the public also have a right to examine reports of regulated entities

and government inspectors; and the Emergency Planning and Community

Right-to-Know Act requires regulated entities to collect and issue reports

about their discharges, which can then be used to document violations.

6.1 Federal Regulations and Policies

6.1.1 Citizen Enforcement Suits

In the United States, most environmental statutes contain citizen

suit provisions enabling citizens to prosecute violators of statutory

requirements. Citizen suit provisions have been used to enforce federal

regulations in diverse areas ranging from antitrust to consumer protection. Citizen suit provisions are said to create private attorneys general,

for they confer upon individuals the right to enforce public laws against

other entities, either public or private.

The USClean Air Act(“CAA”), enacted in 1970, was the first federal

environmental statute of the modern era with a citizen suit provision.60

The CAA citizen suit provision is the basis for similar clauses in almost

every other major piece of federal environmental legislation. Today, any

person with standing can bring a lawsuit against private parties or the

government for violations of certain sections of statutes regulating air,

water, toxic waste, endangered species, mining, noise, the outer continental shelf, and more. Under many statutes, the remedies available to

the citizen are equivalent to the civil remedies granted to the federal

agency charged with administering the statute, including the recovery

of attorney fees.

The typical citizen suit provision permits “any person” (including

an individual, organization, or corporation) to sue any other person

176 ACCESS TO ENVIRONMENTAL INFORMATION

60. 42 U.S.C. §7604(a), CAA §304(a) (citizen suit judicial enforcement).
(including the United States) who is violating the requirements of a statute, including the terms of a permit. The citizen can use information

gained through discovery, or through FOIA requests, such as discharge

monitoring reports. Discharge monitoring reports are often accepted by

courts as definitive proof of a violation, because they are written and

filed by the alleged violator. The right-to-know statutes and the TRI

have also helped citizens identify and prove environmental violations.

Before filing a suit, a citizen must notify state and federal agencies

as well as the alleged violator of his or her intentions. As long as the violation continues past the time of the notice and the state or federal government is not pursuing a “diligent enforcement” action against the

alleged violator in court, a lawsuit may be filed by the citizen after 60

days.61 Once the suit is filed, the government has no power to dismiss it

and may affect the outcome only by intervening in the case. If the citizen

wins, the court may order the defendant to stop the violating activities.

In certain circumstances, the court may award the plaintiff the court

costs and attorney fees associated with bringing the action. Some statutes allow the plaintiff to ask the court to impose civil penalties on the

violator, payable to the US Treasury.

Many citizen suits are resolved by negotiated settlements rather

than by trials. Courts have the authority to approve settlements which

they find to be reasonable, adequate, and in the public interest. To

ensure that settlements are effective in causing defendants to comply

with the law, most citizen suit plaintiffs insist that settlements be as easy

to enforce as possible. Many settlements are “consent decrees” which,

on approval of the court, become enforceable as court orders. When

the government is party to a lawsuit, environmental laws sometimes

require notice to the public of proposed settlements and opportunities

for public comment.62 The public notice requirements do not apply to

citizen suit settlements.

UNITED STATES 177

61. See R.V. Percival et al., Environmental Regulation: Law, Science, and Policy (Boston:

Little, Brown and Co., 1992) at 995-96; B.S. Neumann and J.A. Knight, “When Are

Clean Water Act Citizen Suits Precluded by Government Enforcement Actions?”,

(2000) 30 E.L.R. 1011; and Public Interest Research Group of New Jersey, Inc. v. Hercules,

Inc., 50 F.3d 1239 (3d Cir. 1995) (holding that a Clean Water Act citizen suit 60-day

notice letter was sufficient, since the act does not require the plaintiff to identify

every detail of a violation, but simply enough information to enable the recipient to

identify the specific violation).

62. See RCRA, 42 U.S.C. §6973(d) (when the United States seeks to settle certain claims

it must provide “notice and an opportunity for a public meeting in the affected

area, and a reasonable opportunity for comment...”); see also 40 C.F.R.

§271.16(d)(2)(iii) (1994) (states generally must provide at least 30 days for public

comment on all proposed settlements of RCRA civil enforcement actions).
6.1.2 Information from the Regulated Community: Monitoring

and Reporting Requirements

Legal Right of Access

Successful enforcement of pollution standards requires, among

other things, available evidence of whether a source is complying with

the set standards. Experience in the United States suggests that selfmonitoring and disclosure requirements are powerful enforcement tools.

Almost every US pollution control law requires regulated facilities

to monitor their pollution discharges regularly and to keep records of

their monitoring data and other information relating to their polluting

activities.63 These laws require that the records either be provided periodically to the government or be available for inspection by the government on demand. In most cases, the laws provide for public access to any

such records in the government’s possession, so long as the records

do not reveal trade secrets or other confidential business information.

Even if the law lacks explicit public access language, government-held

records, including those generated by private individuals, still may be

available to the public through the FOIA, as discussed above. Usually,

the government or the facility bears the burden of proving that the data

should not be available to the public.

In the United States, self-monitoring and record keeping laws are

indispensable to governmental enforcement programs because the government does not have the resources to monitor all regulated facilities

itself. In addition, these laws can serve an important function in citizen

enforcement. Public access to such compliance records allows citizens to

identify regulated facilities that are violating the law. With this information, citizens can notify the governmental enforcement officials and

encourage them to take enforcement action. Citizens can also publicize

the violations, using public pressure to compel the facility to correct its

violations.

In the United States, the Clean Water Act is generally considered to

be the model for the use of self-monitoring.64 This Act outlaws all dis178 ACCESS TO ENVIRONMENTAL INFORMATION

63. Examples of US environmental laws with monitoring and record keeping requirements include the Clean Air Act, the Federal Insecticide, Fungicide, and Rodenticide

Act, the Surface Mining Control and Reclamation Act, Toxic Substances Control Act, the

Comprehensive Environmental Response, Compensation, and Liability Act (Superfund),

and the Clean Water Act.

64. TheClean Water Act, 42 U.S.C. §1318, states that any records, reports, or information

obtained under this section shall be available to the public, with an exception for

trade secrets.
charges of pollutants into surface waters without a permit from the federal or state government. The permits contain clearly stated discharge

limits and other conditions, and either the government or citizen plaintiffs can go to court to enforce the permits. Under theClean Water Act, the

public is guaranteed access to the information collected by the government.

Ease of Access

Under theClean Water Act,the government can specify what sort of

monitoring, sampling, and record keeping a permit holder must undertake.65 The Clean Water Act guarantees public access to any permit and to

any records, reports, or information that the government obtains from a

permit holder, except for trade secrets. Coupled with the Act’s citizen

suit provisions, these access provisions allow citizens to seek relatively

quick relief against violators. A citizen need only obtain copies of the

polluter’s permit and discharge monitoring reports (“DMR”s) to see if

the discharges have exceeded the amounts allowed by the permit. If

violations have occurred, the DMRs can be used as evidence against the

polluter in court.

To ensure that the monitoring reports are accurate, the government not only has access to a permit holder’s records, but also has broad

inspection powers. These powers include the right to enter a permit

holder’s private property without advance notice, to inspect monitoring

equipment and facility operations, and to take samples of effluents. This

authority, combined with stiff criminal, civil, and administrative penalties for violation of monitoring and reporting requirements, encourages

thorough and accurate record keeping by permit holders.

Timeliness

By EPA regulation, Clean Water Act permit holders must file

monthly DMRs with the government, as well as notices of noncompliance if the monitoring indicates a violation.

Noncompliance serious enough to threaten health or the environment must be reported to the government within twenty-four hours.

UNITED STATES 179

65. 42 U.S.C. §1342(i), CWA §402(i).
6.1.3 Accessing Information from the Government

Most environmental statutes contain requirements for public

access to information concerning enforcement and compliance. For

example, under the Clean Water Act, before issuing an order assessing a

civil penalty, the EPA “shall provide public notice of and reasonable

opportunity to comment on the proposed issuance” of the order.66 Any

person who comments on a proposed penalty assessment must also be

given notice of any hearing held and of the final order assessing the penalty.

Enforcement-related environmental information is kept by the

EPA in a series of databases. These databases are divided into enforcement sensitive and non-sensitive sections. Enforcement sensitive data

are those records that the agency is currently using in order to maintain

an enforcement action against a specific facility. At the moment, the easiest way for an individual to access these databases is through the

nongovernmental organization OMB-Watch (Office of Management

and Budget-Watch), which has access to all of these databases and uses

this access to assist citizens who are in need of information. OMB-Watch

is a non-profit organization that monitors federal agencies in the United

States. It maintains a computer access system to information held by the

EPA. The public must register with OMB-Watch to receive a user identification number and a manual, which are sent within one week. Access is

free if the public calls OMB-Watch directly or it can be gained through

Internet <www.ombwatch.org>.

In addition to the TRI discussed above in Section 5, other examples

of the EPA’s various databases relevant to finding environmental compliance and enforcement information are the following: The Facility

Index System (“FINDS”) provides information on the location of facilities regulated by the EPA. This information is updated by the various

EPA program offices and is available to the public through the governmental agency National Technical Information Service (“NTIS”). The

NTIS can provide a member of the public with an EPA mainframe user

identification number. The FINDS system is located on the mainframe

and there is no charge to obtain this access number. The NTIS can also

provide the data contained in FINDS on magnetic tapes for which is

charged an at-cost fee. Other than the NTIS, the public can obtain access

to FINDS by writing a FOIA request specifying the subject matter of

interest in FINDS.

180 ACCESS TO ENVIRONMENTAL INFORMATION

66. 42 U.S.C. §1319(g)(4) on rights of interested persons.
The Aerometric Information Retrieval System (“AIRS”) contains

enforcement information on all facilities that are permitted under the

Clean Air Act. The data on air quality and pollution emissions is collected

from state and local agencies. The information on AIRS includes a facility’s name, address, a quarterly report on the facility’s current compliance status, and a listing of enforcement actions taken at the facility both

by the state and by the EPA. The report for each facility also tallies the

number of violation notices issued and administrative actions taken at

the facility for the past two years. In order to obtain access to AIRS, one

must apply for a user identification number through the NTIS. Once a

user number is obtained, an account is set up and on-line access to the

database is available through the EPA mainframe. There is a US $15

fixed monthly fee in addition to a charge for actual computer time. FOIA

requests can also be used to access the information in the AIRS database.

The Resource Conservation and Recovery Information System

(“RCRIS”) is a national program management and inventory system of

RCRA hazardous waste handlers. Handlers are characterized as fitting

one or more of the following categories: treatment, storage and disposal

facilities (“TSDF”s); large quantity generators (“LQG”s); small quantity

generators (“SQG”s); and transporters. The RCRIS captures identification and location data for all handlers and a wide range of information

on TSDFs regarding permit or closure status, compliance with federal

and state regulations, and cleanup activities. Although there are no

means for direct access to this database by the general public, various

forms of the RCRIS are available in its non-sensitive format. These can be

obtained through FOIA requests that generate RCRIS reports in print.

The first US $25 of copies are free, after which there is a charge of 15 cents

per page. The RCRIS can also be accessed through the NTIS, which provides data type in the form of magnetic tapes with non-sensitive information through an annual subscription of US $1,700. Certain limited

versions of the RCRIS are also accessible through the Internet by using

GOFER, FTP, or the World Wide Web. The charge for this access is the

subscription fee charged by whichever channel is used.

The Comprehensive Environmental Response, Compensation,

and Liability Information System (“CERCLIS”) contains information on

abandoned or uncontrolled hazardous waste sites. In addition, the database contains information on pre-remedial actions such as the discovery

date and the completion date of a preliminary assessment, site inspection, and the date of final hazardous ranking determination. Of the sites,

over 1,200 are listed on the National Priority List (“NPL”). CERCLIS also

contains information such as a description of the NPL site, owner/generator information, regulatory and response history, waste description,

UNITED STATES 181
environmental impact information, water-use information, and the

remedial events occurring at the NPL sites. Data is collected concerning

the inventories, assessments, and cleanup of uncontrolled hazardous

waste sites. EPA headquarters and regional offices maintain the data

in CERCLIS databases. This information is only available in a nonsensitive format by informal request or through a FOIA request.

6.2 Selected State Regulations and Policies

In the United States, the EPA has primary responsibility for implementing programs under most US environmental statutes and must

report to Congress on its successes and failures. Most environmental

statutes, however, allow the EPA to delegate primary regulatory

responsibility to the states, although the EPA remains ultimately

accountable to Congress. States, therefore, take the lead in most direct

compliance and enforcement activities and also take on specific responsibilities for providing the EPA with the information necessary to oversee and evaluate state activities and national program implementation.

The information provided by the states to the EPA under the oversight

requirements is available to the public on request under the federal

FOIA and under a state’s open records laws and policies. States typically

provide reports on general enforcement and compliance records that

include information on inspections, permit reviews, violations, and

judicial cases filed. Reports are required anywhere from quarterly to

yearly. In addition, many state environmental statutes contain specific

provisions concerning public access to information during enforcement

proceedings. The New Jersey Water Pollution Law provides a good example of a state law containing provisions for access to information concerning environmental enforcement.

6.2.1 The New Jersey Water Pollution Law

Legal Right of Access

Under the New Jersey Water Pollution Law, the government must

provide an opportunity to the public to comment on a proposed administrative consent order prior to its final adoption if it would establish

interim enforcement limits that relax effluent limitations established in a

permit or a prior administrative order.

Ease of Access

The notice must include a summary statement describing the

nature of the violation necessitating the administrative consent order

182 ACCESS TO ENVIRONMENTAL INFORMATION
and its terms or conditions. It must also specify how more information

on the administrative consent order may be obtained and to whom written comments may be submitted. Before any final action is taken, the

agency must notify everyone who submitted written comments and

include a response to those comments.

Timeliness

The comment period may not be less than 30 days after the date of

publication of the notice.

7. EXCEPTIONS TO DISCLOSURE

While the United States has an advanced legal and institutional

system for making many types of information publicly available, access

is primarily a matter of statute. The United States does not recognize a

constitutional or human right of access to information. Consequently,

there are few practical limitations on how narrowly Congress can constrain public access to information. As discussed above, most US laws,

regulations, and policies governing access to information contemplate

broad access. Typical exceptions cover confidential business information and information relating to an agency’s deliberative process. Since

the terrorist attacks of 11 September 2001, however, there has been a significant rethinking of public access to information the disclosure of

which could reasonably be expected to cause great harm if improperly

used by a terrorist. These legal and practical exceptions to access are now

considered.

7.1 Statutory Exemptions

7.1.1 General

Most environmental and general statutes providing for public

access to information provide explicit or implicit exemptions. For example, the FOIA specifically exempts from disclosure nine categories of

information:

1) national defense or foreign policy information (the information must

be properly classified pursuant to criteria published by an Executive

Order);

2) information that is “solely related to” an agency’s internal personnel

rules and practices;

UNITED STATES 183
3) information that is specifically exempted from disclosure by a statute

(other than subsection 552(b) of the FOIA) that leaves no discretion to

the agency on whether to disclose the information or establishes criteria for nondisclosure;

4) trade secrets and confidential business information (including financial information);

5) agency memoranda that would not be discoverable in litigation;

6) personnel and medical files, the “disclosure of which would constitute a clearly unwarranted invasion of personal privacy”;

7) certain information regarding ongoing law enforcement investigations or prosecutions;

8) specific information relating to (or contained in) reports on financial

institutions;

9) and geological and geophysical information concerning wells.67

The agency denying a FOIA request has the burden of proof to

show that one of these exemptions applies.

Exceptions to disclosure under state freedom of information laws

are usually similar, although most states provide for broader access with

fewer exceptions. For example, only about one-third of state open

records laws provide an exemption comparable to FOIA Exemption 5,

and many of those state provisions are narrower than the FOIA exemption.68 The Ohio Public Records Act exempts intellectual property records,

personal privacy records (including medical, adoption, DNA, and putative father records), probation and parole proceeding records, trial

preparation records, and confidential law enforcement investigatory

records.69

When a FOIA request is made for information that includes

exempt information, the agency must–if it can–provide “any reasonably

segregable portion of a record” once the agency has deleted the exempt

portions.70

184 ACCESS TO ENVIRONMENTAL INFORMATION

67. 5 U.S.C. §552(b).

68. Bonfield and Asimov, supra, note 2 at 545.

69. R.C. 149.43(A)(1).

70. 5 U.S.C. §552(b).
In the vast majority of cases where EPA has a document available,

the agency has provided the requested information. Of the 14,837 FOIA

requests that EPA processed in FY2000, EPA satisfied the full request in

10,718 cases, granted 628 partial requests, denied 77 requests, and did

not provide the documents in 3,954 other cases.71 The most common reasons for exempting documents were to protect confidential business

information (381 times), privileged inter-agency/intra-agency memoranda (288 times), and law enforcement files (280 times); all other

exemptions were invoked a cumulative total of 115 times. In other cases

of nondisclosure, EPA did not have the documents for 2,160 of the

requests, referred the request to other agencies in 658 cases, or found the

request duplicative of other requests in 254 cases. In 856 cases the

request was withdrawn.

Courts have played a vital role in determining the precise scope of

FOIA exemptions. For example, even with the national security exemption, which accords substantial discretion to the Executive Branch in

classifying documents, courts can conduct in camera reviews of purportedly exempt documents to determine whether the exemption applies.

7.1.2 Confidential Business Information

Through permitting, monitoring, and enforcement activities, government agencies acquire significant quantities of technical and financial information relating to internal and facility operations. Businesses

are sometimes concerned that releasing certain aspects of the information that they are required to submit would be revealing trade secrets.

Moreover, if competitors are able to determine the precise emissions

from a facility, they might be able to perform reverse engineering to

determine the specific industrial processes (usually a trade secret, if not

patented) that they use. In fact, many FOIA requestors are actually businesses seeking to obtain information on their competitors. Government

agencies may also be concerned that releasing business information may

impede their ability to obtain information voluntarily from the regulated community. At the same time, citizens need to know what chemicals are being released into the air, water, and soil around them to

determine what environmental and health threats they face.

The often highly complex and technical nature of the information

that is claimed as confidential business information (”CBI”) or trade

secret information often makes it difficult to determine whether the

information in fact constitutes CBI or trade secret information and has

UNITED STATES 185

71. EPA, 2000 Annual Freedom of Information Report, online: EPA <www.epa.gov/

foia/newrpt4.htm>.
generated costly and time-consuming litigation over whether such

information is properly withheld. Government employees can be held

criminally liable if they improperly disclose CBI, which may act as an

incentive to err on the side of withholding information from the public.

At the same time, government employees can be disciplined for “arbitrarily and capriciously” withholding information.72

Here has been much litigation over the propriety of an agency’s

withholding CBI or trade secret information, as well as over agency

attempts to disclose business information that the agency believes is not

exempt. The US Supreme Court has ruled that FOIA is essentially a disclosure law and only allows the government to disclose CBI if it has the

statutory authority to do so.73 A lower court subsequently held that the

scopes of the Trade Secrets Act and FOIA Exemption 4 are congruent.

Thus, if there is no law or regulation specifically permitting disclosure of

information that is exempt from release under FOIA Exemption 4, the

government agency cannot disclose it.74 Courts often allow actions

styled “reverse-FOIA” actions, which by way of the APA allow private

parties to assert FOIA protections to force the government to withhold

information it would otherwise release.

In determining whether the government is justified in withholding

information as “confidential” business information, courts have

adopted an objective standard so that information that is required to be

submitted is confidential only when disclosure would harm the ability

of the government to collect information in the future, or when disclosure is likely to cause substantial harm to the competitive position of a

third party, or where release would harm agency interests in compliance

or program effectiveness.75 Courts have noted that disclosure would

harm the ability of the government to collect information where the

information was submitted voluntarily, and would in some cases diminish the quality of the information where the submission was compelled

by law. Information submitted voluntarily may also be withheld if

it is of a type that is not “customarily” disclosed to the public by the

submitter.76

Businesses can protect specific chemical identities by claiming

them as trade secrets on TRI disclosure forms under the EPCRA. However, submitters who would invoke this exemption must satisfy strict

186 ACCESS TO ENVIRONMENTAL INFORMATION

72. 5 U.S.C. §552(4)(F).

73. Chrysler Corp. v. Brown, 441 US 281 (1979).

74. CNA Financial Corp. v. Donovan, 830 F.2d 1132 (DC Cir. 1987) (upholding disclosure

of employee records that would not cause competitive injury to the submitter).

75. National Parks and Conservation Ass’n v. Morton, 498 F.2d 765 (DC Cir. 1974).

76. Critical Mass Energy Project v. NRC, 975 F.2d 871 (DC Cir. 1992) (on the bench).
substantiation requirements, including proof at the time a claim is submitted, that the information really is secret, that there is provable

competitive harm which would result from disclosure, and that the

substance in question is one which a competitor could readily reverseengineer.77 If a manufacturer is exempted from disclosing the identity of

a substance, he or she must nonetheless report his or her own identity,

the general physical and chemical character of the substance, and the

amount released. One exception to this trade secret protection guarantees that health care professionals have access to chemical information if

needed for treatment or prevention of injuries. In non-emergency cases,

however, the health care professional must agree to protect trade secrets

before gaining access to the information.

As noted in Section 5.1, above, TRI does not require reporting of the

releases of all pollutants from all facilities. Information reported (and

available) under the TRI is limited to the chemicals that are specifically

listed in the regulations (not all chemicals released to the environment)

in excess of specified thresholds by specific sectoral facilities.

7.1.3 Risk Management Plans

TheClean Air Act78 required facilities to develop and make publicly

available Risk Management Plans (“RMP”s) that include an assessment

of the hazards posed by dangerous chemicals at the facility, a program to

prevent harm from occurring, and an emergency response plan. Perhaps

the most controversial aspect of RMPs is the section on Offsite Consequence Analysis (“OCA”), which describes the potential impacts on the

nearby community and environment of a worst-case scenario accident.

In 1999, when RMPs were about to be posted on the Internet, chemical

manufacturers and the FBI became concerned that making such information so publicly available could increase the risks of a terrorist attack.

Congress passed a law directing the President to study the risks and the

benefits of public access to OCA information and then promulgate regulations governing dissemination of that information.79 The law and its

UNITED STATES 187

77. To be entitled to confidential treatment, such trade secret claims must be sufficient–competitive harm being one of many regulatory criteria–and valid (i.e.,

information submitted to support the claim is true). The submission and review

procedures are set forth in 40 C.F.R. Part 350. A submitter may also make trade

secret and/or CBI claims on information submitted to substantiate a trade secret

claim on specific chemical identity. Disclosure/protection of substantiation materials is governed by 40 C.F.R. Part 2 Subpart B.

78. 42 U.S.C. §7412(r). See 40 C.F.R. 1400 and online: <http://www.epa.gov/

fedrgstr/EPA-AIR/2000/August/Day-04/a19785.htm>.

79. Chemical Safety Information, Site Security and Fuels Regulatory Relief Act, Public Law

106-40. See 40 C.F.R. 1400 and online: <http://www.epa.gov/fedrgstr/EPA-AIR/

2000/August/Day-04/a19785.htm>.
proposed implementing regulations allow members of the public to

review some OCAs at designated public reading rooms, but they are not

allowed to copy them.

7.1.4 Environmental Impact Assessment Exclusions

Not all federal projects need to go through the environmental

assessment/environmental impact statement process. Some agencies

have categorical exclusions from NEPA for “actions which do not individually or cumulatively have a significant effect on the human environment.80”

7.2 Disclosure after the 9/11 Terrorist Attacks

Following the terrorist attacks of 11 September 2001, the United

States has undertaken a wide review of steps that may prevent and mitigate future attacks. Information disclosure has been a focus of debate, as

government agencies, industrial facilities, and public interest advocates

have sought to define which information should be made publicly available, to whom, and under what circumstances.

For example, one concern is that terrorists could use the Internet to

review and conduct a preliminary assessment of which industrial facilities to target. So, all information relating to worst-case scenarios (already

barred from the Internet by Congress–see Section 7.1.3, above) should

not be available. Moreover, information on a facility’s emissions (which

could help to identify quantities of hazardous chemicals on-site, and

thus a rough proxy for the potential impacts of a catastrophic attack)

should be barred. Industry representatives have proposed legislative

changes to FOIA and EPCRA to limit public access to information on

chemical facilities, electricity generation data, municipal water sources,

and emissions data.81

Proponents of public access counter that facility information

(including location) is readily available in telephone books and most

on-line directories, and most facilities tout information on quantities of

their products (which could be used to identify large facilities) to attract

188 ACCESS TO ENVIRONMENTAL INFORMATION

80. 40 C.F.R. 1508.4.

81. “Industry, Water Officials Eye Rollback of Freedom of Information Act”, Inside

EPA (5 October 2001) 1 at 18; “Utilities Press White House to Limit Public Access to

Electricity Generation Data”, Inside EPA (24 October 2001); Meredith Preston,

“Chemical Industry Urges Restriction on Access to Worst-case Scenario Data”,

(BNA) Daily Environment Reporter (9 October 2001) at A-2.
private investors. They propose that safer, alternative chemicals should

be used and that public review is even more critical now.82 To most

NGOs, the legislative and administrative proposals seek to control

embarrassing information more than address terrorist threats.83

While the legislative debate continues, many federal and some

state agencies have removed publicly available information from the

Internet and are reviewing which information to make publicly available.84 For example, the Nuclear Regulatory Commission closed its

website, the avenue through which it disseminates virtually all of its

information. EPA has removed RMPs (which had been posted without

the OCA) from its website, the US Geological Survey has removed a

number of reports on water resources, the Department of Energy completely removed its site for the National Transportation of Radioactive

Materials, and the Department of Transportation has removed its pipeline mapping information. Other federal agencies that removed web

pages, reports, and other information include the Federal Energy Regulatory Commission, Los Alamos National Laboratories (reports), the

Agency for Toxic Substances and Disease Registry (report on chemical

site security), the Federal Aviation Administration (enforcement

actions), the National Imagery and Mapping Agency, Bureau of Transportation Statistics (GIS information), Internal Revenue Service, International Nuclear Safety Center, and the Department of Energy (many

reports and web pages, some of which have been reposted). States such

as New Jersey, Pennsylvania, and Florida have also removed information from their web pages. Finally, as discussed in Section 1.3.1, above,

the Attorney General has informed agencies that the Justice Department

will defend assertions of FOIA exemptions unless they lack a sound

legal basis, even absent the previously required demonstration of reasonably foreseeable harm to an interest protected by a FOIA exemption.

Some of these actions are already being challenged in courts. For

example, the American Bar Association has sued the administration

UNITED STATES 189

82. E.g., J.V. Grimaldi and G. Gugliotta, “Chemical Plants are Feared as Targets: Views

Differ on Ways to Avert Catastrophe”, Washington Post (16 December 2001) at A1;

“Attacks May Prompt More Stringent Environmental Assessments”, Inside EPA (12

October 2001) at 4; Jim Morris, “Calls Grow Louder for Phaseout of Chlorine:

Potential as Terrorist Threat Cited; Defenders Say Chemical Essential”, Dallas

Morning News (20 November 2001).

83. E.g., “Hill, Activists Fear Bush Using Security Issue to Limit Data, EPA Rules”,

Inside EPA (Superfund Report) (29 October 2001) at 34.

84. For a survey of information that is no longer publicly accessible, see “The Post

September 11 Environment: Access to Government Information,” online: OMB

Watch <www.ombwatch.org/info/2001/access.html> (date accessed: 30 November 2001).
over its plan to monitor attorney-client discussions of people who are in

the custody of the Immigration and Naturalization Service but not US

citizens.85 It is likely that the ultimate resolution of these issues will take

years of legislative and judicial action.

190 ACCESS TO ENVIRONMENTAL INFORMATION

85. Molly McDonough, “ABA to Challenge Monitoring Rule: Association President:

Anti-Terrorism Measure Goes Too Far”, ABA Journal e-Report (30 November

2001), online: <www.abanet.org/journal/ereport/n29ash.html> (date accessed:

3 December 2001).
The Precautionary Principle

in North American and

International Law

INTRODUCTION

Article 10(6) of the North American Agreement on Environmental

Cooperation mandates the Council of the CEC to cooperate with the

NAFTA Free Trade Commission in order to achieve the environmental

goals and objectives of NAFTA. The CEC Council and the Secretariat’s

Environment, Economy and Trade program invested considerable time

and effort developing the process by which the Council would undertake its work mandated under Article 10(6). This issue of North American

Environmental Law and Policy contains the first two research papers commissioned by the Council as part of its work under Article 10(6). The

papers themselves focus on different aspects of the use of precaution in

North America.

The first paper, by Kal Raustiala, acting professor at the UCLA Law

School, examines precautionary terminology in the federal statutes of

the three NAFTA Parties: Canada, Mexico, and the United States. After

describing several examples of precautionary language from the domestic federal statutes of each party, Professor Raustiala analyzes the commonalities and differences between the terminology employed. The

second paper, by David Wirth, professor of law at Boston College, examines the role of regulatory philosophy in precautionary decision-making

in United States law and policy, by: identifying international authorities

articulating the need for precaution; analyzing variations in those formulations and evaluating their significance; and considering precaution

as it might be understood from the perspective of the role of science in

the regulatory process. Professor Wirth then scrutinizes precautionary

theories as interpreted in the United States. He assesses federal legislation, presents case studies involving the application of federal statutory

mandates, and evaluates judicial opinions interpreting federal law.

The CEC believes that these papers will be of great use to members

of the public, policy makers and legal practitioners.

193

Precaution in the Federal

Legislation of the NAFTA Parties

Prepared by:

Kal Raustiala, Acting Professor

UCLA Law School & Institute of the Environment

Sub-contractor for Mexican statutory law:

Manuel González-Oropeza

Professor of Law, UNAM

August 2002

Table of Contents

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 199

A. The Concept of Precaution in Regulatory Law . . . . . . 199

B. Scope and Organization of Paper . . . . . . . . . . . . . . 200

II. EXAMPLES OF PRECAUTION IN CANADIAN

FEDERAL LEGISLATION . . . . . . . . . . . . . . . . . . . . 201

A. Plant Protection Act. . . . . . . . . . . . . . . . . . . . . . 201

B. Hazardous Products Act . . . . . . . . . . . . . . . . . . . 202

C. Health of Animals Act . . . . . . . . . . . . . . . . . . . . 202

D. Canadian Environmental Protection Act . . . . . . . . . . 203

E. Feeds Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . 204

F. Pest Control Products Act . . . . . . . . . . . . . . . . . . 204

G. The Oceans Act . . . . . . . . . . . . . . . . . . . . . . . . 205

III. EXAMPLES OF PRECAUTION IN UNITED STATES

FEDERAL LEGISLATION . . . . . . . . . . . . . . . . . . . . 205

A. Toxic Substances Control Act . . . . . . . . . . . . . . . . 205

B. Sustainable Fisheries Act. . . . . . . . . . . . . . . . . . . 206

C. 1977 Clean Air Act Amendments . . . . . . . . . . . . . . 207

D. Federal Food, Drug, and Cosmetic Act . . . . . . . . . . . 208

E. National Environmental Policy Act. . . . . . . . . . . . . 209

197
F. Endangered Species Act . . . . . . . . . . . . . . . . . . . 210

G. Surface Mining Control and Reclamation Act . . . . . . . 211

H. Clean Water Act. . . . . . . . . . . . . . . . . . . . . . . . 211

IV. EXAMPLES OF PRECAUTION IN MEXICAN FEDERAL

STATUTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212

A. Ley General del Equilibrio Ecológico y la Protección

al Ambiente (LGEEPA–General Law of Ecological

Equilibrium and Environmental Protection). . . . . . . . 212

B. Ley Federal sobre Metrología y Normalización

(Federal Law on Metrology and Standardization) . . . . 213

C. Ley General de Salud (General Health Law). . . . . . . . 213

D. Ley Federal de Sanidad Animal (Federal Animal

Health Law) . . . . . . . . . . . . . . . . . . . . . . . . . . 213

E. Ley Forestal (Forestry Law) . . . . . . . . . . . . . . . . . 214

F. Ley de Aguas Nacionales (National Water Law) . . . . . 214

V. ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214

A. Requiring pre-market approval or registration

of products. . . . . . . . . . . . . . . . . . . . . . . . . . . 215

B. Permitting regulation when harm is possible but

not certain . . . . . . . . . . . . . . . . . . . . . . . . . . . 215

C. Reference to the international precautionary principle . . 216

D. Requiring affirmative proof of safety to permit

use/marketing . . . . . . . . . . . . . . . . . . . . . . . . 217

VI. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . 217

198 THE PRECAUTIONARY PRINCIPLE
I. INTRODUCTION

A. The Concept of Precaution in Regulatory Law

Risk and uncertainty are central concepts in many areas of law, in

particular health, safety, and environmental regulation.1 Regulatory

statutes frequently aim at reducing risks, and sometimes attempt to

eliminate risks. These risks are not always known with certainty. Precaution, in the regulatory context, generally refers to the notion of regulating

in the face of uncertainty about risk. Precaution implies ex ante, rather

than ex post, regulation. Rather than waiting to see what harms occur and

then regulating—what has been called a “trial and error” approach2—

precaution implies prevention of potential but uncertain harms.

From a normative perspective, exactly what degree of precaution

is optimal is a contested topic. Many critics of the use of precaution

argue that overly precautionary regulation simply substitutes one set of

risks—for example, those from existing technologies—for risks inherent

in a new, regulated technology.3 And it is empirically true that in many

instances new substances or practices are regulated more stringently

than existing substances or practices.4 Proponents of precaution counter

that precaution is necessary, particularly with regard to some kinds of

new technology, because of the potentially grave risks they present and

because remedial action is not always possible. In these situations, they

argue, precaution is essential.

While precaution is a contested concept, it can be broadly conceptualized in terms of “burdens of proof.” In a general sense, precautionary regulation is one in which the burden falls on the proponent of the

new substance, act, or technology to demonstrate that it is not harmful.

Regulation is permitted in the absence of such a showing, and only after

199

1. I wish to thank Steven Megibow for assistance with research on US and Canadian

statutes—author.

2. Aaron Wildavsky, Searching for Safety (1988).

3. E.g.: Frank B. Cross, Paradoxical Perils of the Precautionary Principle (1996); Peter

Huber, The Old-New Division in Risk Regulation, 69 Virginia Law Review 6 (1983);

Julian Morris, ed., Rethinking Risk and the Precautionary Principle (2000).

4. See, e.g., the discussion of the US Toxic Substances Control Act, infra.
such a showing can the substance, act, or technology be sold or used. A

non-precautionary regulation, by contrast, places the burden on the regulator to affirmatively show harm from an action, substance, etc. In the

latter, regulation occurs remedially—only after showing a harm (hence

the phrase “trial and error”). A key issue is the default position: can a

particular action or product or decision go forward unless stopped, or is

it stopped unless affirmatively permitted to go forward? The burden

analogy does not, however, address the standard of review used. For

example, a law might set a high level of certainty about risk before a particular act or substance may be banned or controlled, or it may use a

much lower evidentiary standard. The former is arguably less precautionary than the latter.

In short, precaution is a variegated concept. In this paper the analytic focus is on federal domestic statutes that, at a minimum, permit the

regulator to regulate where harm is anticipated or believed to be likely,

rather than requiring harm to be demonstrated.

It is important to underscore that the concept of precaution has

developed a special meaning in international law. In international law

precaution is usually expressed in terms of the “precautionary principle.” This principle is meant as a regulatory guide, and is sometimes

claimed to be a principle of customary international law.5 While its status in international law is highly contested, the precautionary principle

is increasingly referred to in both international environmental law and

international trade law agreements.6 Article 15 of the 1992 Rio Declaration provides a typical definition: “Where there are threats of serious or

irreversible damage, lack of full scientific certainty shall not be used as a

reason for postponing cost-effective measures.” This formulation is

reflected in other international agreements, such as the Convention on

Biological Diversity and the Sanitary and Phytosanitary Agreement of

the World Trade Organization. This more specific definition of precaution is not used in this paper, except where domestic statutes themselves

refer to the international legal “precautionary principle.”

B. Scope and Organization of Paper

This paper examines precautionary terminology in the federal

statutes of the three NAFTA parties: Canada, Mexico, and the United

States. These federal statutes address a wide range of topics, but many

are environmental or natural resource-related. Because precaution is

200 THE PRECAUTIONARY PRINCIPLE

5. Daniel Bodanksy, “Customary (and Not So Customary) International Environmental Law”, 3 Indiana Journal of Global Legal Studies 105 (1995).

6. e.g., EC Measures Concerning Meat and Meat Hormones, WTO/DS26/AB/R 1997.
open to many different definitions, and because treatment of risk is ubiquitous in regulation, this paper focuses on examples in which regulation

may commence without a prior showing of harm: e.g., where the burden

of demonstrating safety falls on the proponent of the act, technology, or

substance, or where the government is empowered to act where it may

“reasonably anticipate” harm.

In many cases elaborate regulations are promulgated pursuant to

these federal statutes. In addition, judicial decisions and interpretations

can significantly influence the meaning and application of precautionary statutory language. But for reasons of scope, in this paper only the

statutory terminology itself is described and analyzed. After describing

several examples of precautionary language from the domestic federal

statutes of each party, the commonalities and differences among precautionary terminology are analyzed. It is important to underscore that the

examples of precaution are illustrative rather than comprehensive; there are

undoubtedly many other examples of precautionary terminology in federal statutes. Part II of the paper covers Canada; Part III, the United

States; and Part IV, Mexico. Part V compares and contrasts the examples

described.

II. EXAMPLES OF PRECAUTION IN CANADIAN

FEDERAL LEGISLATION

A. Plant Protection Act

The purpose of the Plant Protection Act is “to protect plant life and

the agricultural and forestry sectors of the Canadian economy by preventing the importation, exportation, and spread of pests and by controlling or eradicating pests in Canada.”7 Pests are defined broadly. The

Act prohibits any party from moving, growing, raising, culturing, or

producing any thing for which there are “reasonable grounds to believe

[it] is a pest, that is or could be infested with a pest, or that constitutes...

a biological obstacle to the control of a pest.”8 When a government

inspector reasonably believes that a potential pest has been illegally

exported into Canada, the inspector may require the party in possession

to remove it from Canada.9

This statutory language applies the concept of precaution by

authorizing the Canadian government to act without scientific certainty

PRECAUTION IN THE FEDERAL LEGISLATION 201

7. S.C. 1990, c. 22, s. 2.

8. Id. at s. 6.

9. Id. at s. 8.
to prevent harm from pests and by not limiting the government to remedial measures. Both the reasonable belief standard and the use of terminology such as “could be” (“...a pest”) indicate that full certainty is not

required before regulation may commence.

B. Hazardous Products Act

This Act prohibits the advertising, sale or import into Canada of

hazardous products. Specific types of hazardous products are listed in a

schedule to the Act. The schedule may be amended to include “any

product, material or substance that is or contains a poisonous, toxic,

flammable, explosive... product, material or substance or other product,

material or substance of a similar nature that the Governor in Council is

satisfied is or is likely to be a danger to the health or safety of the public.”10 In addition, a product designed for household, garden or personal

use for which the Governor in Council “is satisfied is or is likely to be a

danger to the health or safety of the public by reason of its design, construction or contents”11 may also be deemed hazardous and added to the

schedule.

The Act employs precautionary terminology in that products,

materials and substances may be prohibited even in the absence of a

showing that they are dangerous: the relevant standard, “likely to be a

danger,” is precautionary.

C. Health of Animals Act

This Act governs the treatment and protection of animals that may

be exposed to diseases and/or toxic substances. In addition to requiring

notice to veterinary inspectors where disease is suspected, the Act

requires that “where there exists in an area a disease or toxic substance

that is capable of affecting animals” and reasonable steps have been

taken by the government to bring this to the attention of animal owners

or caretakers, “every person” [i.e., an owner or animal caretaker] “in that

area must affix a notice on the place where the animals are kept forbidding entry without the person’s permission.”12 The government may

further require that owners or caretakers affix a notice prohibiting entry

without a government inspector’s permission.

202 THE PRECAUTIONARY PRINCIPLE

10. R.S. 1985, c. H-3, s. 1.

11. Ibid.

12. See Health of Animals Act of 1990, s. 7 under “Control of Diseases and Toxic

Substances, Notification and Samples,” <http://www.canlii.org/ca/sta/h-3.3/

sec7.html>.
The Act uses precautionary terminology in that it governs the

treatment of animals that may be exposed to diseases or toxic substances, and does not require affirmative proof of exposure before regulatory measures, such as entry restrictions, are required.

D. Canadian Environmental Protection Act

This Act is the cornerstone of Canadian federal environmental law.

The preamble states that “the Government of Canada is committed to

implementing the precautionary principle” and refers to the Rio Declaration definition found in Part I of this paper. Reference to precaution

and the specific language of the precautionary principle as it has been

articulated in international law appears elsewhere in the statute. For

example, s. 6(1.1) specifically obliges the National Advisory Committee

to apply the precautionary principle when it gives advice to the Ministers of Environment and Health. Section 76.1 states that the Ministers of

Environment and Health “shall apply a weight of evidence approach

and the precautionary principle” when they assess substances or review

decisions related to particular substances that may be toxic.13 In all, there

are four explicit references to the precautionary principle in the Act.14

Moreover, when a substance is determined to be toxic or is “capable of becoming toxic,” and “the Ministers are satisfied that the substance may have a long-term harmful effect on the environment,” it can

be regulated.15 Elsewhere, the Act states that “Where the Ministers...

suspect that substance is toxic or capable of becoming toxic, the Minister

may, before the expiry of the period for assessing the information...

prohibit any person from manufacturing or importing the substance; or

request any person to provide any additional information or submit the

results of any testing that the Ministers consider necessary...”16

This Act differs from the other legislation described in this paper

(with the exception of the Canadian Oceans Act, see below) in that it refers

directly to the precautionary principle, as found and formulated in several international legal agreements, and in fact specifically uses the definition that appears in the 1992 Rio Declaration of the United Nations

Conference on Environment and Development (UNCED). It also contains language that is precautionary on its own terms; e.g., substances

may be regulated if they are deemed “capable of becoming toxic” and

“may have a long-term harmful effect on the environment.”

PRECAUTION IN THE FEDERAL LEGISLATION 203

13. Chapter 33, s. 76.1.

14. Pollution Probe, Applying the Precautionary Principle to Standard Setting (n.d.), at 54.

15. Id. at s. 76.3.

16. Id. at s. 84.1.
E. Feeds Act

This statute prohibits any person from manufacturing, selling or

importing animal feed into Canada unless the feed meets certain specified standards, including pre-market inspection and registration under

the Act. Most pertinently, the Act prohibits feed that “may adversely

affect animal or human health.”17

The use of the term “may adversely affect” eliminates the need to

prove harm on the part of the regulator and is precautionary. In addition, the inspection and registration requirements illustrate in a general

way the reversal of burden associated with precaution: feed is assumed

harmful unless sellers or importers affirmatively present the feed for

inspection by the government, and the inspection is passed. Only then

may the feed be marketed.

F. Pest Control Products Act

This Act regulates products used for the control of pests and the

organic functions of plants and animals.18 Under the Act “no person

shall sell in or import into Canada any control product unless the product has been registered as prescribed; conforms to prescribed standards;

and is packaged and labeled as prescribed.”19 A “control product” is any

product or substance “that is manufactured, represented, sold or used as

a means for directly or indirectly controlling, preventing, destroying,

mitigating, attracting or repelling any pest.”20

Similar provisions for pre-market registration are found in the

1985 Seeds Act, which requires that, with minor exceptions, “no person

shall sell, import into Canada or export from Canada any seed unless the

seed conforms to the prescribed standard and is marked and packed and

the package labeled as prescribed.”21 Any seed not so registered is prohibited from being sold, advertised for sale, or imported into Canada.22

The Act grants the Governor in Council authority to make regulations

establishing minimum standards of purity, germination, quality, and

disease.

204 THE PRECAUTIONARY PRINCIPLE

17. R.S. 1985, c. F-9, s. 3.

18. Id., s. 1.

19. R.S., c. P-10, s. 3.

20. Ibid.

21. Ibid.

22. R.S.C. 1985, c. S-8, s. 3(1).
The Pest Control Products Act and the Seeds Act employ a form of

precaution by requiring pre-market registration of products before they

can be sold. Pest control products and seeds, respectively, must comport

with pre-established government standards, without requiring a showing that non-conformance with those standards would result in harm to

the environment, public health, or agriculture.

G. The Oceans Act

The preamble to the Oceans Act states that “Canada promotes the

wide application of the precautionary approach to the conservation,

management, and exploitation of marine resources in order to protect

these resources and preserve the marine environment.”23 The Act

requires the development and implementation of a national strategy for

the management of marine-related ecosystems that must be based on

three principles: sustainable development; integrated management of

estuaries, coastal and marine waters; and the precautionary approach.24

III. EXAMPLES OF PRECAUTION IN UNITED STATES

FEDERAL LEGISLATION

A. Toxic Substances Control Act

TheToxic Substances Control Act of 1976, with subsequent revisions,

grants the Environmental Protection Agency (EPA) broad power to regulate risks from exposure to chemical substances, while providing

chemical manufacturers with procedural safeguards against EPA’s use

of that power. There are several provisions in the Act which contain precautionary terminology. Section 6 provides EPA with the authority to

regulate a chemical substance when the agency finds “a reasonable

basis” to conclude that the manufacture, use, or disposal of a chemical

substance “will present an unreasonable risk of injury to health or the

environment.”25

If the EPA finds that a particular chemical meets this standard,

EPA shall require that testing take place “to develop data with respect to

the health and environmental effects for which there is an insufficiency

of data and experience and which are relevant to a determination that

the [chemical] does or does not present an unreasonable risk of injury to

PRECAUTION IN THE FEDERAL LEGISLATION 205

23. S.C. 1996, c. 31(6); see also Pollution Probe, Applying the Precautionary Principle to

Standard Setting (n.d.), at Appendix 22.

24. Pollution Probe, id.

25. 15 USC s. 2605(a).
health or the environment.”26 Moreover, if EPA determines that the

information available is insufficient to permit a reasoned evaluation of

the health and environmental effects of a chemical, and EPA believes that

“such substance either enters or may reasonably be anticipated to enter

the environment in substantial quantities or there is or may be significant or substantial human exposure to the substance,” EPA may regulate the chemical.27

Very similar pre-market approval and registration provisions

are found in a related statute, the Federal Insecticide, Fungicide, and

Rodenticide Act, which regulates various forms of pesticides. The Insecticide, Fungicide, and Rodenticide Act requires that a product be registered

with EPA before it can be marketed. The EPA must refuse or withdraw

registration if it finds that the use of a pesticide is “likely to result in

unreasonable adverse effects on health or the environment.”28

The statutory terminology in the Toxic Substances Control Act

reflects precaution in several ways. At a general level, new chemicals are

treated differently from existing chemicals.29 Existing chemicals can

only be regulated when unreasonable risk is demonstrated by EPA; new

chemicals, however, can be regulated even in the absence of sufficient

data when it can be reasonably anticipated that substantial human exposure will occur. For new chemicals, EPA may engage in precautionary

regulation even in the absence of sufficient information—an intrinsically precautionary approach. Registration and prior notification rules

also instantiate the concept of precaution. In the case of pesticides, the

Insecticide, Fungicide, and Rodenticide Act presumes that pesticides are

intrinsically hazardous, and this Act also requires ex ante registration

and clearance before marketing is permitted. These provisions employ

precaution in the sense of requiring regulatees to register and test their

products before they are released on the market.

B. Sustainable Fisheries Act

The Sustainable Fisheries Act amends the Magnuson Fishery Conservation and Management Act. It aims to control and address overfishing.

The Sustainable Fisheries Act establishes Regional Fishery Management

councils. The Secretary of Commerce must report annually to the US

Congress and the Fishery Management councils on the status of fisheries

206 THE PRECAUTIONARY PRINCIPLE

26. Id., s. 2603(a).

27. Id., s. 2604(e).

28. Richard Merrill, Federal Regulation of Cancer-Causing Chemicals, Report to the Administrative Conference of the United States (1982), at 32.

29. US submission to the CEC, at 1.
within each council’s area of authority, and must identify those fisheries

that are either overfished or are approaching a condition of being

overfished. “Overfished” means a rate of fish mortality that “jeopardizes the capacity of a fishery to produce the maximum sustainable yield

on a continuing basis.”30 If a fishery is declared overfished the Act

requires the development of a Fishery Management Plan. This plan

must contain measures “necessary and appropriate for the conservation

and management of the fishery, to prevent overfishing and rebuild...

stocks, and to protect, restore, and promote the long-term health and

stability of the fishery.”31

The Act’s use of terminology such as “necessary... to prevent

overfishing,” particularly when the statutory definition of overfishing

includes jeopardization of the capacity of a fishery, reflects a precautionary approach to regulation. Rather than requiring an affirmative showing of fishery collapse or harm, jeopardization of capacity—in other

words, the possibility of overfishing—is enough to trigger the Act’s regulations. Moreover, fishery management plans are required even if fisheries are merely approaching a condition of being overfished. This

provision, requiring preemptive action, also reflects precaution. Rather

than awaiting an actual collapse of a fishery, regulation takes place when

the fishery is jeopardized or approaching a state of collapse.

C. 1977 Clean Air Act Amendments

TheClean Air Actis the major US federal air quality statute. The Act

requires EPA to maintain a list of air pollutants, “emissions of which, in

[EPA’s] judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.”32 The Act

also requires the maintenance of a list of hazardous substances, and the

statute itself provides such a list. The EPA is authorized to review this

list and add pollutants “which present, or may present... a threat of

adverse human health effects... or adverse environmental effects.”33

Similarly, EPA may regulate fuels and fuel additives “if in the

judgment of [EPA] any emission product of such fuel or fuel additive

causes, or contributes to, air pollution which may reasonably be anticipated to endanger the public health or welfare...”34 The Clean Air Act

Amendments of 1977 authorize the Administrator of the EPA to regulate

PRECAUTION IN THE FEDERAL LEGISLATION 207

30. 18 USC s. 1802, para. 29.

31. Id., s. 1853(a).

32. 42 USC s. 7408.

33. Id. s. 7412.

34. Id. s. 7545.
“any substance... which in his judgement may reasonably be anticipated

to affect the stratosphere, especially ozone in the stratosphere, if such

effect may be reasonably anticipated to endanger public health or welfare.”35

This terminology employs a strong element of precaution, because

the Act authorizes regulation of substances which “may be reasonably

anticipated” to affect stratospheric ozone if that effect “may be reasonably anticipated” to endanger health or welfare. Full certainty of effect

on the ozone layer, and of endangerment to public health or welfare due

to that effect, is not necessary.

D. Federal Food, Drug, and Cosmetic Act

The Food, Drug, and Cosmetic Act requires that products falling

within those categories (food, etc.) generally be reviewed and approved

before they can be marketed. Any marketed food is subject to regulation

if any substance that it bears or contains is “poisonous or deleterious”

and that substance “may render” the food “injurious to health.“36 The

sponsor of a food additive is required to make an affirmative showing of

safety for the additive. The 1958 Food Additives Amendment (commonly known as the “Delaney Clause”) requires that any food additive

be found safe before the Food and Drug Administration may approve its

use in food.37 Safety is defined as a “reasonable certainty of no harm.”38

This finding may not be made if the proposed food additive has been

shown to induce cancer in man or in experimental animals. A food additive is something for which the intended use “results or may reasonably

be expected to result, directly or indirectly, in its becoming a component

or otherwise affecting the characteristic of any food.”39 A precondition

for being a food additive is that the substance not be “generally recognized, among experts... as having been adequately shown... to be safe

under the conditions of its intended use.”40

In addition to the Delaney Clause discussed above, there are in fact

two other closely-related Delaney Clauses—for animal drugs and color

additives—that employ essentially the same language.41 Other parts of

208 THE PRECAUTIONARY PRINCIPLE

35. 42 USC s. 7671.

36. 21 USC s. 342(a)(1).

37. Id., s. 348(c)(3)(A).

38. Id., s. 301.

39. Id., s. 321(s).

40. Ibid. In addition, if the substance was used in food prior to 1958, it is grandfathered

into the regulatory scheme.

41. US FDA, Precaution in US Food Safety Decisionmaking (3 March 2000), para. 90.
the Federal Food, Drug, and Cosmetic Act provide that any pesticide residue on food “shall be deemed unsafe”—and therefore cannot be distributed in commerce—unless an exemption is issued.42 In establishing

maximum residue levels for pesticides, the Act requires an additional

ten-fold safety factor to be added to an identified threshold of harm, in

order to protect infants and children. Inspection provisions in related

statutes for certain categories of food—such as meat and poultry products—require that inspections take place before the product can be sold

or marketed.43

These provisions employ terminology consistent with the concept

of precaution. The banning by the Delaney Clause of all carcinogenic

substances without regard for level of risk is consistent with a strong

form of precaution. Under the Act, additives must be found safe before

marketed, rather than marketed until harm is shown. The pesticide residue standard is similar: the manufacturer must request and obtain an

exemption to distribute; without this, distribution is barred. The definition of a food additive requires that the substance in question not have

been found safe. If it has not been found safe, it is an additive and therefore requires a use regulation or an exemption before it can be marketed.

The requirement of pre-market approval, as well as the pre-market

inspection provisions for meat, poultry and other specified categories of

food, is consistent with precaution as a concept that provides for regulation unless a produce is proven safe.

E. National Environmental Policy Act

The National Environmental Policy Actrequires that the federal government use “all practicable means... to improve and coordinate federal

plans, function, programs, and resources, to the end that the Nation

may... attain the widest range of beneficial uses of the environment without degradation, risk to health and safety, or other undesirable and

unintended consequences.”44 In particular, all federal agencies must

draft “environmental impact statements” on major federal actions “significantly affecting the quality of the human environment.”45 Federal

agencies must also “identify and develop methods and procedures...

which will ensure that presently unquantified environmental amenities

and values may be given appropriate consideration in decisionmaking...”46

PRECAUTION IN THE FEDERAL LEGISLATION 209

42. 21 USC s. 408(a)(1).

43. Federal Meat Inspection Act, 21 USC s. 601ff; Poultry Products Inspection Act, id.,

s. 451ff.

44. 42 US s. 4331(b)(3).

45. Id., s. 4332(c).

46. Id., s. 4332(b).
The Act employs a weak form of the concept of precaution in its

requirement that all major federal actions affecting the environment be

preceded by an environmental impact statement. Environmental impact

statements are not in themselves binding on the government or other

actors, but they are a form of informational regulation, forcing information creation before an action or decision takes place. The Act’s overall

aim is to minimize, through information provision and new decisionmaking methods, harmful impacts on the environment. The impact

statements, and the requirement that agencies develop decision methods that address environmental amenities, are broadly consistent with

the notion of precaution.

F. Endangered Species Act

The aim of the Endangered Species Act is the preservation of endangered and threatened species and of the ecosystems they inhabit. The

Act defines an endangered species as “any species which is in danger of

extinction throughout all or a significant portion of its range.”47 A threatened species is “any species which is likely to become an endangered

species throughout all or a significant portion of its range. “48 A determination that a species is either endangered or threatened results in restrictions on certain activities that may harm the species. In addition, federal

agencies must ensure that any proposed action “is not likely to jeopardize the continued existence” of any listed species.49

Similar language exists in the Marine Mammal Protection Act,

which, though it does not apply only to threatened or endangered

species, requires that applicants for permits to take marine mammals

show that the taking will not have adverse effects.50

In the Endangered Species Act, precaution is present in the statutory

language addressing the listing process as well as in statutorilytriggered responses to listing. For listing, a species does not need to go

extinct, but rather must only be “in danger of extinction” to be listed as

endangered. Full certainty is not required. Similarly, for threatened species the “likely to become an endangered species” standard employs

precautionary terminology: by definition, a species need not be shown

to be endangered to fall within the “threatened” category, only likely to

210 THE PRECAUTIONARY PRINCIPLE

47. The Endangered Species Act of 1973, s. 3(6).

48. Id., s. 3(20).

49. Id., s. 7(a)(2).

50. 16 USC s. 1371; see Dan Bodansky, “The Precautionary Principle in US Environmental Law,” in Tim O’Riordan and James Cameron, eds., Interpreting the

Precautionary Principle (1994).
become endangered. The stronger precautionary tone of the language

for endangered species arguably reflects that extinction is irreversible.

For threatened species, which face by definition a lower level of danger,

the terminology used is less precautionary: they must be “likely to

become” endangered.

Precaution is even more strongly reflected in the provision that

federal agencies must ensure that actions are “not likely to jeopardize” a

listed species. Here harm to a species need not be affirmatively shown;

rather, the likelihood of jeopardizing the species is the triggering standard. The very concept of jeopardy is that harm is not certain.51 That

jeopardy is further modified by “not likely to” strengthens the precautionary nature of the provision.

G. Surface Mining Control and Reclamation Act

Under this Act, surface mine operators must post a performance

bond when applying for a mining permit.52 Applications must also

include plans for compliance with relevant environmental regulations

which are intended to ensure that affected land is reclaimed and impacts

on the environment are limited. Bonds are recovered if adequate reclamation of the site is demonstrated.

Performance bonds are precautionary in that they require an

“upfront commitment of resources to safeguard against potentially

damaging future outcomes.”53While the scope of these damages is often

foreseeable, the exact nature is unknown ex ante. The bond ensures that

adequate resources exist to address damages ex post.

H. Clean Water Act

The Clean Water Act requires that effluent limitations for point

sources of water pollution (such as factories) require the application of

“best practicable control technology.” Modifications to this standard are

permitted if “such modification will not result in the discharge of pollutants in quantities which may reasonably be anticipated to pose an unacceptable risk to human health or the environment...”54 Permits to release

PRECAUTION IN THE FEDERAL LEGISLATION 211

51. US submission at 3.

52. US submission at 4.

53. Laura Cornwell and Robert Costanza, “Environmental Bonds: Implementing the

Precautionary Principle in Environmental Policy,” in Carolyn Raffensperger and

Joel Tickner, eds., Protecting Public Health and the Environment: Implementing the Precautionary Principle (1999), at 221, cited in US submission at 4.

54. 33 USC 1311.
effluents are required, and may be modified in some cases. No permit

which modifies secondary water treatment requirements may be issued,

however, which authorizes “the discharge of any pollutant into saline

esturarine waters which at the time of application do not support a

balanced indigenous population of shellfish, fish and wildlife, or allow

recreation in and on the waters... The prohibition contained in the preceding sentence shall apply without regard to the presence or absence

of causal relationship between such characteristics and the applicant’s

current or proposed discharge.”55

The Act also requires that the states of the US establish “total maximum daily loads” for specified pollutants; “such load shall be established at the level necessary to implement the applicable water quality

standards with seasonal variations and a margin of safety which takes

into account any lack of knowledge concerning the relationship between

effluent limitations and water quality.”

The “reasonably anticipated” terminology for permit modification

is precautionary and tracks that used in many other US environmental

protection statutes, such as the Clean Air Act. The “without regard to the

presence or absence” of a causal relationship is precautionary in that

whether or not the proposed discharge will impact water quality, if the

quality is currently unfavorable no discharge is permitted. Thus discharges are barred even if they will not cause harm, if some measure of

harm is already present. Finally, the “margin of safety” language with

regard to maximum daily loads explicitly requires regulators to act in a

precautionary manner when setting standards.

IV. EXAMPLES OF PRECAUTION IN MEXICAN

FEDERAL STATUTES

A. Ley General del Equilibrio Ecológico y la Protección

al Ambiente (LGEEPA—General Law of Ecological

Equilibrium and Environmental Protection)

LGEEPA is Mexico’s general environmental statute. LGEEPA

defines prevention (prevencion) as measures and decisions taken prior to

damage to the environment. Under the Mexican system of federalism,

however, powers of prevention are granted more to the states than to

the federal government. In addition, Article 28 states that any activity,

product, or substance that “may cause” an ecological imbalance (desequilibrio ecológico) must first be evaluated through an environmental

212 THE PRECAUTIONARY PRINCIPLE

55. Ibid.
impact assessment provided by the producer. This applies to several

specific categories of activity, including oil, forestry, mining, and toxic

wastes.

B. Ley Federal sobre Metrología y Normalización

(Federal Law on Metrology and Standardization)

Article 48 permits the federal government to issue emergency

measures (normas oficiales mexicanas) whenever there is a potential risk of

products threatening human health. Many rules issued pursuant to

this provision have a precautionary character. For example, in 1999,

Semarnap (Secretaría de Medio Ambientes, Recursos Naturales, y

Pesca—now Semarnat) issued an emergency standard establishing the

requirements and measures to prevent and control the spread of shrimp

diseases, including a temporary ban on shrimp imports.

C. Ley General de Salud (General Health Law)

Article 3 empowers the Mexican Ministry of Health to issue all

pertinent orders to “prevent and control” the harmful effects of the environment on human health. Article 282 of this law requires that manufacturers inform the Ministry of Health of all products derived from

biotechnology used for human consumption. Articles 402 and 404 permit the issuance of orders to “protect” human health, and these orders

may include elimination of advertising, bans on products or activities,

etc. Article 402 describes these as “safety measures... issued by the competent health authority, in accordance to these legal prescriptions and

other related rules, to protect the population’s health.”56 Article 414

establishes that the impoundment of objects, products or substances

may take place when there is a “presumption” (presunción) that they are

harmful to human health. Under Mexican law this is a juris tantum presumption: safety measures may be taken by the health authority unless

the act or substance is proved harmless.

D. Ley Federal de Sanidad Animal (Federal Animal Health Law)

The chapter on Animal Health Emergencies establishes safety

measures to ban any danger posed by infectious diseases, in Article 35.

These are called “emergency animal health national devices” (dispositivo

nacional de emergencia de sanidad animal).

PRECAUTION IN THE FEDERAL LEGISLATION 213

56. Translation by Prof. González-Oropeza.
Article 46 of the Flora Health Federal Act addresses, for phytosanitary emergencies, the same risks and similarly permits the issuance

of emergency standards.

E. Ley Forestal (Forestry Law)

The Forestry Law empowers Semarnap to supervise and enforce

all actions to prevent and fight against fires and other threats to forest

health (Article 5). Potential exploiters of forest resources must apply

for permits from Semarnap, and these applications must include an

environmental impact assessment as well as a “forest management

program.” This program must include all measures taken for the conservation and protection of the habitat of endangered species as well as for

the avoidance of hazardous impacts on the ecosystem generally. Under

Article 45, Semarnap also is empowered to foreclose the establishment,

revoke the authorization, or seize any object that, according to specific

reports or environmental audits, may produce an imminent risk or

grave harm to forest ecosystems.

F. Ley de Aguas Nacionales (National Water Law)

Under Title Seven of the National Water Law, programs and

actions to prevent and control water pollution may be decided by designated water authorities. Article 150 of the implementing rules entitles

the National Water Commission to promote any measure to prevent and

control water pollution. In all the cases, however, the burden of proof

rests upon the water authority rather than the user. For example, when

the stoppage of water treatment plants may cause grave harm to public

health, population safety or harm to the ecosystem, the National Water Commission, by explicit request of an authority, may order the suspension of

activities that produce waste discharge upon the waters (Article 94).

V. ANALYSIS

As the preceding examples illustrate, precaution is central to many

federal regulatory statutes in the NAFTA parties. But precaution is a

broad concept, and consequently the degree to which precaution can be

said to be reflected in domestic statutory law is contestable and sensitive

to the concept of precaution used. Empirically, the statutes surveyed

above employ precautionary terminology in several ways. These are discussed below, in roughly ascending order of precaution; i.e., from the

least precautionary to the most precautionary.

214 THE PRECAUTIONARY PRINCIPLE
A. Requiring pre-market approval or registration of products

Several surveyed statutes contain requirements that products,

such as chemicals or pesticides, be registered or approved prior to being

produced, marketed or imported. For example, theCanadian Pest Control

Products Act states that no person shall sell in or import into Canada any

pest control product “unless the product has been registered as prescribed; conforms to prescribed standards; and is packaged and labeled

as prescribed.”57 This language represents a weak form of precaution: by

requiring registration for all products in the relevant market, these products are made known to the government (and presumably more readily

regulated and controlled, or banned, in the future). The requirement that

relevant new products conform with generalized standards can in practice also be weakly precautionary: such standards are likely to be based

on safety or health concerns that themselves may be precautionary.

Lastly, terminology of this kind reflects the shifting of burden that characterizes precautionary regulation generally: all products within the relevant category must register and conform with regulatory standards ex

ante, rather than requiring an affirmative showing of harm or specified

risk ex post.

B. Permitting regulation when harm is possible but not certain

The majority of statutes reviewed in this paper incorporate precaution by explicitly permitting regulators to act where harms are possible

or are anticipated, or where risks are deemed “unreasonable.” This type

of statutory language reflects the core idea of precaution: regulation can

occur when risks are uncertain. Often, the standard is “likelihood” of

harm or “reasonable anticipation.” This terminology provides some discretion to regulators.

For example, regulation is permitted in the absence of certainty in

the Mexican Ley Federal sobre Metrología y Normalización, which authorizes the use of emergency measures whenever there is a potential risk in

products that threaten human health. Similarly, the US Clean Air Act

Amendments of 1977 authorize the Administrator of the EPA to regulate

“any substance... which in his judgment may reasonably be anticipated

to affect the stratosphere, especially ozone in the stratosphere, if such

effect may be reasonably anticipated to endanger public health or welfare.”58 The US Endangered Species Act provides that federal agencies

must ensure that any proposed action “is not likely to jeopardize the

PRECAUTION IN THE FEDERAL LEGISLATION 215

57. R.S., c. P-10, s. 1.

58. 42 US 7671.
continued existence” of any listed species.59 The Canadian Hazardous

Products Act authorizes regulation for “any product, material or substance that is or contains a poisonous, toxic, flammable, explosive...

product, material or substance or other product, material or substance of

a similar nature that the Governor in Council is satisfied is or is likely to

be a danger to the health or safety of the public.”60 The language in each

of these examples permits government actors to make a judgment about

risk in situations of uncertainty (e.g., “likely to jeopardize” or “likely to

be a danger”) and to regulate based on that judgment.

Some statutes contain precautionary language that expressly permits interim or provisional regulation, but requires that relevant scientific data be gathered or tests performed. Like the preceding examples,

this kind of terminology is precautionary and shifts the burden of proving safety or risk onto the manufacturer or user. But rather than permitting or requiring regulation on a semi-permanent basis when risk or

harm is uncertain, this type of language explicitly keys precautionary

regulation to the duration of the uncertainty and sometimes requires

affirmative efforts to reduce uncertainty.

For example, the US Toxic Substances Control Act provides EPA

with the authority to regulate a chemical when the agency finds “a reasonable basis” to conclude that the manufacture, use, or disposal of a

chemical substance “will present an unreasonable risk of injury to health

or the environment.”61 When such risk is deemed present, the Act

requires that testing take place “to develop data with respect to the

health and environmental effects for which there is an insufficiency of

data and experience and which are relevant to a determination that the

[chemical] does or does not present an unreasonable risk of injury to

health or the environment.”62 Thus EPA is required to affirmatively act

to reduce uncertainty when it regulates in a precautionary manner.

C. Reference to the international precautionary principle

The statutes described in this paper generally contain language

which is precautionary in nature but which does not explicitly refer to

either the general concept of precaution or to the international formulation of the precautionary principle. The Canadian Environmental Protection Act, in its preamble, states that “the Government of Canada is

216 THE PRECAUTIONARY PRINCIPLE

59. Id., s. 7(a)(2).

60. R.S., c. H-3, s. 1.

61. 15 USC s. 2605(a).

62. Id., s. 2603(a).
committed to implementing the precautionary principle” and refers to

the Rio Declaration formulation of this principle (slightly different formulations appear in other international legal instruments). Reference to

the specific language of the precautionary principle also appears elsewhere in the statute. The Act was recast in 2000, and arguably represents

the rising importance of the precautionary principle as an explicit principle in environmental law.

D. Requiring affirmative proof of safety to permit use/marketing

Most precautionary language in the statutes examined above permits regulation when harm is reasonably certain or unreasonable risk is

present. This provides some latitude to regulators but expressly authorizes precautionary action. Indeed, against the traditional backdrop of

“trial and error” regulation, this kind of language represents a serious

departure. But statutes can also go further and require that substances or

products be “proven” safe. To be sure, proving safety is not possible

with certainty: many products once thought safe, such as clorofluorocarbons, later turned out to be quite harmful. But the standard of

certainty for safety can be set very high, and the result is highly precautionary regulation.

For example, the US Food, Drug, and Cosmetics Act Food Additives

Amendment (the “Delaney Clause”) requires that any food additive be

found safe before the Food and Drug Administration may approve its

use in food.63 Safety is defined as a “reasonable certainty of no harm.”64

This finding may not be made if the proposed food additive has been

shown to induce cancer in man or in experimental animals. The Delaney

Clause is precautionary in that it permits regulation under uncertainty,

but it goes further than many statutes in that it sets a high substantive

standard: reasonable certainty of no harm, with the additional criterion

that the substance in question cannot be shown to be a carcinogen.

VI. CONCLUSION

The preceding overview of precautionary terminology in the federal legislation of the three NAFTA parties illustrates that precaution, as

a risk-regulatory concept, is well-entrenched domestically. Precautionary terminology in domestic statutes also substantially pre-dates the

international law version of the “precautionary principle.” While prePRECAUTION IN THE FEDERAL LEGISLATION 217

63. 21 USC s. 348(c)(3)(A).

64. Id., s. 301.
caution is fundamentally about attempting to err on the side of safety, as

the examples surveyed illustrate there are many, often quite varied,

ways to approach and implement precaution.

218 THE PRECAUTIONARY PRINCIPLE
Precaution in International

Environmental Policy and

United States Law and Practice

David A. Wirth

Professor of Law

Boston College Law School

October 2002

Table of Contents

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 225

II. ANALYTICAL METHODOLOGIES FOR IMPLEMENTING

PRECAUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 227

A. International Formulations of Norms for Precaution . . . 227

1. Non-binding Statements. . . . . . . . . . . . . . . . . . 227

a. Rio Declaration . . . . . . . . . . . . . . . . . . . 228

b. Other Non-binding Instruments. . . . . . . . . . 229

2. Treaties. . . . . . . . . . . . . . . . . . . . . . . . . . . 230

a. Persistent Organic Pollutants (POPs) . . . . . . . 231

b. Climate . . . . . . . . . . . . . . . . . . . . . . . . 231

c. Biodiversity . . . . . . . . . . . . . . . . . . . . . 232

d. Long-range Transboundary Air Pollution . . . . 233

e. Marine Environment . . . . . . . . . . . . . . . . 233

f. Fisheries . . . . . . . . . . . . . . . . . . . . . . . 234

g. Transboundary Watercourses . . . . . . . . . . . 235

B. A Typology of Precautionary Decision Making . . . . . . 235

1. Variations in International Formulations for

Precaution . . . . . . . . . . . . . . . . . . . . . . . . . 237

221
a. Lack of Certainty . . . . . . . . . . . . . . . . . . 237

b. Likelihood and Severity of Harm . . . . . . . . . 239

c. Policy Responses . . . . . . . . . . . . . . . . . . 240

d. Cost-effectiveness . . . . . . . . . . . . . . . . . . 241

e. Differential Criteria . . . . . . . . . . . . . . . . . 241

2. Kinds of Scientific Uncertainty . . . . . . . . . . . . . . 241

a. Quantifiable Uncertainties . . . . . . . . . . . . . 242

(1) Measurement Uncertainties . . . . . . . . . . 242

(a) Random errors . . . . . . . . . . . . . . . 242

(b) Systematic errors. . . . . . . . . . . . . . 243

(2) Sampling Uncertainties . . . . . . . . . . . . 243

(3) Modeling Uncertainties . . . . . . . . . . . . 244

b. Fundamental or Irreducible Uncertainties . . . . 244

3. Science in the Public Policy Process. . . . . . . . . . . . 246

4. Range of Policy Responses. . . . . . . . . . . . . . . . . 247

III. UNITED STATES FEDERAL LAW . . . . . . . . . . . . . . . 249

A. Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . 249

1. Procedural Tools Facilitating Precaution . . . . . . . . . 250

a. Requirements for Prior Approval . . . . . . . . . 251

b. Requirements for Prior Notification. . . . . . . . 252

c. Requirements for Prior Study . . . . . . . . . . . 252

222 THE PRECAUTIONARY PRINCIPLE
2. Substantive Mandates . . . . . . . . . . . . . . . . . . . 253

a. Zero Tolerance . . . . . . . . . . . . . . . . . . . . 254

b. Health- and Safety-based Criteria . . . . . . . . . 255

c. Risk-based Tests . . . . . . . . . . . . . . . . . . . 256

d. Technology-based and Cost-benefit

Requirements . . . . . . . . . . . . . . . . . . . . 257

B. Judicial Decisions . . . . . . . . . . . . . . . . . . . . . . . 258

1. The Ethyl Case . . . . . . . . . . . . . . . . . . . . . . . 260

2. OSHA Cases . . . . . . . . . . . . . . . . . . . . . . . . 261

3. Testing of Chemicals. . . . . . . . . . . . . . . . . . . . 263

4. Reserve Mining Co. v. EPA . . . . . . . . . . . . . . . . 264

IV. EXAMPLES OF US STATE AND LOCAL INITIATIVES . . . 265

A. California Proposition 65. . . . . . . . . . . . . . . . . . . 266

B. Massachusetts Toxic Use Reduction Act . . . . . . . . . . 266

C. Bay Area Dioxin Phaseout . . . . . . . . . . . . . . . . . . 268

D. Los Angeles School District Integrated Pest

Management Program . . . . . . . . . . . . . . . . . . . . 268

PRECAUTION IN INTERNATIONAL ENVIRONMENTAL POLICY 223

I. INTRODUCTION

The concept of precautionary decision making has received considerable attention in the context of such global environmental issues

as stratospheric ozone depletion, climate change, and biotechnology.

Those debates, having reached a relatively high level of sophistication

and refinement, of late have tended to crystallize around discrete questions that are both highly controversial and occasionally somewhat

remote from real-world considerations. One relatively esoteric concern

is the status of precaution in customary international law, a question

about which there is an apparent lack of consensus, but one whose resolution either way is likely to have relatively little concrete impact. Even

the terminology employed, such as references to a “precautionary principle” as opposed to “precautionary approaches,” can be an occasion for

vociferous disagreements.

Stepping back somewhat from some of the international dissension, precaution is an inherent part of day-to-day life in decisions that

are made by individuals and governments alike. Everyone is familiar

with the concept of making decisions under conditions of uncertainty or

incomplete information, whether expressly labeled “precautionary” or

not. For example, a recent report of the US General Accounting Office1

found no conclusive evidence that radio frequency energy emitted by

cellular telephones poses a health risk. On the other hand, the report

noted that “the findings of some studies have raised questions about

cancer and other health problems that require further study” and that

“there is not yet enough information to conclude that they pose no risk.”

Similarly, the Royal Society, an independent scientific academy in the

United Kingdom, has been unable to give conclusive answers as to the

presence or absence of health risks to armed forces personnel from

depleted uranium in armor-piercing shells used in the Persian Gulf and

Kosovo. Its most recent report2 concludes that “radiological risks from

225

1. US General Accounting Office, Telecommunications: Research and Regulatory Efforts on

Mobile Phone Health Issues (Report no. GAO-01-545, 7 May 2001) (available at web

site <http://frwebgate.access.gpo.gov/cgi-bin/useftp.cgi?IPaddress=162.140.64.8

8&filename=d01545.txt&directory=/diskb/wais/data/gao>).

2. Royal Society, The Health Hazards of Depleted Uranium Munitions, Part I, at 8 (22

May 2001) (available at web site <http://www.royalsoc.ac.uk/templates/search/

websearch.cfm?mainpage=/policy/reports.htm>).
the use of [depleted uranium] are for the most part low, but that for small

numbers of soldiers there might be circumstances in which risks are

higher, and it is for this reason that further work should be undertaken to

clarify their extent.”

Most individuals, institutions and governments are also familiar

with the need on occasion to act even when risks are uncertain or incompletely characterized. For instance, in June 2001 and effective later this

year, the American Red Cross, a private organization, voluntarily tightened its restrictions beyond the good practice standard established by

guidelines issued by the US Food and Drug Administration (FDA)3 on

blood donations from travelers who had been to Europe because of concerns about bovine spongiform encephalopathy (BSE). Likewise, US

FDA has proposed prohibiting at least one drug and scrutinizing others

for use in animal feeds because of concerns about the transfer of resistance to human pathogens, despite a lack of consensus about the potential harm from their continued use.4

This paper examines the role of a regulatory philosophy of precautionary decision making in United States law and policy. Because of the

high level of multilateral activity with potentially significant implications for national and international policies, the paper first identifies

international authorities articulating the need for precaution. Next, the

paper analyzes variations in those formulations and evaluates their significance. The paper then goes on to consider precaution as it might be

understood from the perspective of the role of science in the regulatory

process.

226 THE PRECAUTIONARY PRINCIPLE

3. See Royal Society, The Health Hazards of Depleted Uranium Munitions and BSE (6 June

2001) (available at web site <http://www.redcross.org/services/biomed/blood/

supply/tse/bsepolicy.html>). See also American Red Cross Urges Tightened

Restrictions on Blood Donors Who Reside in Europe: Red Cross President and

CEO Describes Policy As “Prudent, Cautious” (18 January 2001) (available at

web site <http://www.redcross.org/services/biomed/blood/supply/

1%2D18%2D01b.html>) (Red Cross urges FDA further to tighten restrictions on

blood donations).

4. See 65 Fed. Reg. 64,954 (31 October 2000) (notice of opportunity for hearing concerning FDA’s proposed withdrawal of approval of new animal drug application for use

of fluoroquinolone enrofloxacin in poultry). See also FDA Center for Veterinary

Medicine, An Approach for Establishing Thresholds in Association With the Use of

Antimicrobial Drugs in Food-Producing Animals (19 December 2000) (available at web

site <http://www.fda.gov/cvm/antimicrobial/threshold21.pdf>); Use of Antimicrobial Drugs in Food Animals and the Establishment of Regulatory Thresholds

on Antimicrobial Resistance (available on web site <http://www.fda.gov/cvm>)

(transcripts of public meeting, held 22-24 January 2001, on issues identified in previous document).
The second major portion of the paper scrutinizes precautionary

theories as interpreted in the United States. Federal legislation is

assessed, case studies involving the application of federal statutory

mandates are presented, and judicial opinions interpreting federal law

are evaluated. The paper concludes with an examination of selected

examples of precaution as applied by subnational entities, such as the

constituent states of the United States.

II. ANALYTICAL METHODOLOGIES FOR IMPLEMENTING

PRECAUTION

A large number of international instruments of a normative

nature, both non-binding and legally binding, now articulate expectations for precautionary decision making. All those instruments identify

circumstances under which it is desirable for governmental decisions to

reflect a preference for precaution under conditions of uncertainty. To

understand how precautionary decision making might work in practice,

it is consequently helpful to have a perspective on both the regulatory

process and theories of uncertainty. Accordingly, this section first surveys international norms for precaution and then addresses approaches

to regulation and the scientific treatment of uncertainty or error.

A. International Formulations of Norms for Precaution

Although they have roots in domestic approaches such as the

German Vorsorgeprinzip, precautionary methodologies have rapidly

become the subject of a wide variety of international exhortations and

obligations. Because the products from multilateral deliberations are

driving so much of the debate over precautionary perspectives on governmental decision making, this section examines some of the salient

international contexts in which precaution has been articulated as an

approach to formulating public policy.

As the focus of this paper is United States law and policy, the

authorities analyzed are confined to those in which the United States

Government participated in negotiations and which do or might apply

to the United States. Many of these same instruments could or do apply

to Canada and Mexico as well. The following compilation is intended to

be illustrative as opposed to exhaustive.

1. Non-binding Statements

Non-binding instruments may serve a number of purposes. One

important function of “soft” law is consciously to establish normative

PRECAUTION IN INTERNATIONAL ENVIRONMENTAL POLICY 227
expectations, which often function as standards of good practice for

states and governments. The texts of non-binding instruments are typically phrased in terms of “shoulds” rather than the obligatory “shalls”

characteristic of binding obligations, which are more frequently found

in the “hard” law created by treaties and international agreements.

While not creating formal international legal obligations, these advisory

instruments can nonetheless establish widely accepted criteria for desirable or sound state practice. Adjectives typically applied to this category

of instruments include “hortatory,” “precatory,” and “aspirational.”

Many of the non-binding exhortations encouraging states to take measures based on a theory of precaution also apply generally, in contrast to

the typically more discrete subject matter areas addressed by treaty obligations, as discussed in section II.A.2 below.

a. Rio Declaration

The most generally applicable exhortation to apply precautionary

governmental decision-making processes appears in Principle 15 of the

Rio Declaration on Environment and Development,5 a non-binding recommendation adopted at the United Nations Conference on Environment and Development (UNCED), attended by over a hundred heads of

state or government in 1992. The text of that instrument provides as follows:

In order to protect the environment, the precautionary approach shall be

widely applied by States according to their capabilities. Where there are

threats of serious or irreversible damage, lack of full scientific certainty

shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

This statement, while not legally binding, is not confined to a particular subject matter area and is therefore quite broad in application.

The desirability of public policies based on precaution is also identified in the Bergen Ministerial Declaration on Sustainable Development

in the ECE Region,6 the final statement from a preparatory meeting of

European states, the United States and Canada that preceded UNCED.

228 THE PRECAUTIONARY PRINCIPLE

5. 14 June 1992, UN Doc. A/Conf.151/5/Rev. 1 (1992), 31 ILM 876 (1992).

6. 16 May 1990, para. 7, 20 Environmental Policy and Law 100 (1990) (“In order to achieve

sustainable development, policies must be based on the precautionary principle.

Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack

of full scientific certainty should not be used as a reason for postponing measures to

prevent environmental degradation.”)
Agenda 21, the action plan for the future adopted at UNCED, also contains references to precaution.7

b. Other Non-binding Instruments

The final communiqué of the G-8 summit held in Okinawa in

2000,8 in paragraph 56 under the heading of “Biotechnology/Food

Safety,” endorses the Codex Alimentarius Commission’s “efforts...to

achieve greater global consensus on how precaution should be applied

to food safety in circumstances where available scientific information is

incomplete or contradictory.”

More generally, the Houston Economic Summit Declaration9 from

the G-7’s 1990 meeting, in paragraph 62, states that “...in the face of

threats of irreversible environmental damage, lack of full scientific certainty is no excuse to postpone actions which are justified in their own

right.”

The 1992 summit declaration of the Conference for Security and

Cooperation in Europe (CSCE)10 stated that “the use of economic and fiscal instruments in addition to regulatory instruments is important in

order to implement, at national level, the ’polluter-pays’ principle, as

well as the precautionary approach.”

PRECAUTION IN INTERNATIONAL ENVIRONMENTAL POLICY 229

7. Paragraph 17.21 of Agenda 21, UN Doc. A/Conf./151/4 (1992), reprinted in

The Earth Summit: The United Nations Conference on Environment and Development

(UNCED) 125 (Stanley P. Johnson, ed., 1993), provides as follows:

A precautionary and anticipatory rather than a reactive approach is necessary to

prevent the degradation of the marine environment. This requires, inter alia, the

adoption of precautionary measures, environmental impact assessment, clean production techniques, recycling, waste audits and minimisation, construction and/or

improvement of sewage treatment facilities, quality management criteria for handling of hazardous substances, and a comprehensive approach to damage impact

from air, land and water. Any management framework must include the improvement of coastal human settlements and the integrated management and

development of coastal areas.

Paragraph 35.2 states:

In the face of threats of irreversible environmental damage, lack of full scientific

understanding should not be an excuse for postponing actions which are justified in

their own right. The precautionary approach should provide a basis for policies

relating to complex systems that are not yet fully understood and whose consequences and disturbances cannot yet be predicted.

8. 23 July 2000 (available at web site <http://www.g7.utoronto.ca/g7/summit/

2000okinawa/finalcom.htm>).

9. 11 July 1990 (available at web site <http://www.g7.utoronto.ca/g7/summit/

1990houston/communique/environment.html>).

10. Helsinki Summit Declaration, 10 July 1992, pt. VIII, para. 3, 31 ILM 1389 (1992).
A number of non-binding recommendations adopted by the Organization for Economic Cooperation and Development (OECD) contain

references to precaution. Among those is a 1990 recommendation on

integrated pollution prevention and control,11 which in an appendix

entitled “Guidance on integrated pollution prevention and control”

contains the following language under the heading “Essential Policy

Aspects:”

Certain policies, common to all aspects of environmental protection, are

essential to an effective integrated approach. These include that...

d) the absence of complete information should not preclude precautionary

action to mitigate the risk of significant harm to the environment.

2. Treaties

In contrast to the Rio Declaration and other non-binding instruments, statements concerning precautionary decision making in treaties

are legally binding. Treaty obligations, in contrast to the “soft,”

non-binding instruments identified in the previous section, in principle

are legally enforceable under international law. However, binding obligations of treaty origin also have some limitations in scope. As treaties in

international law are formed on a consensual theory similar to that of

contracts in municipal legal systems, their obligations apply only to

those states party to the treaty in question. Second, such statements, like

the treaties in which they are embedded, tend to be confined to relatively

discrete subject matter areas. Consequently, the language dealing with

precaution in a particular treaty is likely to be specific to the subject matter covered by the agreement, and is not necessarily generally applicable

to all regulatory decision making. The number of treaty references to

precautionary decision making is now quite large. This section identifies

some of the more significant examples.12

230 THE PRECAUTIONARY PRINCIPLE

11. OECD Doc. C(90)164.

12. Another possible source of binding or “hard” law is custom, which arises from a

pattern and practice of states motivated by a sense of legal obligation (opinio juris).

In contrast to “soft” instruments such as the Rio Declaration, which do not articulate legally enforceable obligations, and treaties, which do so only for those states

that have given their express consent, a requirement to implement precaution as a

matter of customary law in principle could bind states that had not affirmatively

indicated their intent to accept the obligation. There does not appear to be international agreement as to whether the conditions for the existence of customary

international standards for precaution have been satisfied.
a. Persistent Organic Pollutants (POPs)

The most recent articulation of precaution as a public policy is contained in the Stockholm Convention on Persistent Organic Pollutants,13

adopted at a diplomatic conference on 23 May 2001. In the preamble14

to that instrument, the parties declare that they are

Acknowledging that precaution underlies the concerns of all Parties and is

embedded in this Convention.

Operative Article 1, entitled “Objective,” provides as follows:

Mindful of the precautionary approach as set forth in Principle 15 of the

Rio Declaration on Environment and Development, the objective of this

Convention is to protect human health and the environment from persistent organic pollutants.

Article 8, addressing the listing of additional chemicals governed

by the agreement at the initiative of one of the parties, states in paragraph 9 that the Conference of the Parties shall act on such a proposal “in

a precautionary manner.” Annex C, part V, directs parties in considering

best available techniques for preventing or reducing releases of chemicals regulated by the agreement, to take into account considerations of

“precaution and prevention.”

b. Climate

The 1992 United Nations Framework Convention on Climate

Change15 in article 3, paragraph 2 states that:

The Parties should take precautionary measures to anticipate, prevent or

minimize the causes of climate change and mitigate its adverse effects.

PRECAUTION IN INTERNATIONAL ENVIRONMENTAL POLICY 231

13. Available at web site <http://www.chem.unep.ch/pops/POPs_Inc/dipcon/

meetingdocs/conf-2/en/conf-2e.pdf>. The United States signed this agreement,

which has not yet entered into force.

14. The preamble to a treaty is generally considered to establish its contextual setting

as opposed to containing substantive obligations. See Vienna Convention on the

Law of Treaties, 22 May 1969, art. 31, para. 2, 8 ILM 679 (1969) (identifying elements

of context of treaty as “the text, including [the treaty’s] preamble and annexes”).

Hence, the identification of precaution in preambular language, depending on its

phraseology, may have a different legal significance from that in the operative text.

The Vienna Convention on the Law of Treaties, although not in force for the United

States, has been accepted by the Executive Branch as a codification of customary

international law regarding international agreements. See S. Exec. Doc. L, S. Exec.

Doc. L, 92d Cong., 1st Sess. (1971), at 1; Restatement (Third) of the Foreign Relations

Law of the United States pt. III, introductory note (1987).

15. 9 May 1992, 31 ILM 851 (1992). The United States is a party to this instrument.
Where there are threats of serious or irreversible damage, lack of full

scientific certainty should not be used as a reason for postponing such

measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the

lowest possible cost.

The 1990 Ministerial Declaration on the Second World Climate

Conference, an important non-binding precursor to the Convention,

also contains a reference to precaution.16

c. Biodiversity

While not mentioning precaution by name, the United Nations

Convention on Biological Diversity (Biodiversity Convention)17 contains the following preambular language:

Noting also that where there is a threat of significant reduction or loss of

biological diversity, lack of full scientific certainty should not be used as a

reason for postponing measures to avoid or minimize such a threat[.]

The Cartagena Protocol on Biosafety,18 an ancillary agreement to

the Biodiversity Convention, specifies in article 1, entitled “Objective,”

as follows:

In accordance with the precautionary approach contained in Principle 15

of the Rio Declaration on Environment and Development, the objective of

this Protocol is to contribute to ensuring an adequate level of protection in

the field of the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects

232 THE PRECAUTIONARY PRINCIPLE

16. 7 November 1990, para. 7, 20 Environmental Policy and Law 220 (1990) (“In order to

achieve sustainable development in all countries and to meet the needs of present

and future generations, precautionary measures to meet the climate challenge

must anticipate, attack, or minimize the causes of, and mitigate the adverse consequences of, environmental degradation that might result from climate change.

Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing cost-effective measures to

prevent such environmental degradation. The measures adopted should take into

account different socio-economic contexts.”).

17. 22 May 1992, 31 ILM 822 (1992). The United States has signed but not ratified this

agreement. Article 18 of the Vienna Convention on the Law of Treaties, supra, note

14, provides that “[a] State is obliged to refrain from acts which would defeat the

object and purpose of a treaty when... it has signed the treaty or has exchanged

instruments constituting the treaty subject to ratification, acceptance or approval,

until it shall have made its intention clear not to become a party to the treaty...”

18. 29 January 2000 (available at web site <http://www.biodiv.org/biosafety/protocol.asp>). The United States has not signed this instrument, which has not yet

entered into force.
on the conservation and sustainable use of biological diversity, taking

also into account risks to human health, and specifically focusing on

transboundary movements.

This instrument also contains a preambular reference “reaffirming

the precautionary approach contained in Principle 15 of the Rio Declaration on Environment and Development.”

d. Long-range Transboundary Air Pollution

The second sulfur protocol of 199419 to the Convention on LongRange Transboundary Air Pollution (LRTAP),20 negotiated under the

auspices of the UN Economic Commission for Europe, contains two

preambular paragraphs in which the parties to the instrument declare

that they are

Resolved to take precautionary measures to anticipate, prevent or minimize emissions of air pollutants and mitigate their adverse effects, [and]

Convinced that where there are threats of serious or irreversible damage,

lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that such precautionary measures

to deal with emissions of air pollutants should be cost-effective[.]

Similarly, in preambular language to the Aarhus Protocol on

Persistent Organic Pollutants to the Convention on Long-Range

Transboundary Air Pollution,21 the parties to that instrument declare

themselves:

Resolved to take measures to anticipate, prevent or minimize emissions of

persistent organic pollutants, taking into account the application of the

precautionary approach, as set forth in principle 15 of the Rio Declaration

on Environment and Development[.]

e. Marine Environment

Once it enters into force, the Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter

PRECAUTION IN INTERNATIONAL ENVIRONMENTAL POLICY 233

19. Oslo Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution, on Further Reductions of Sulfur Emissions, 14 June 1994, 33 ILM 1540 (1994).

Although the United States is a party to the LRTAP Convention, it is not a party to

the Oslo Protocol, which entered into force in 1998.

20. Convention on Long-Range Transboundary Air Pollution (LRTAP), 13 November

1979, 18 ILM 1442 (1979).

21. 24 June 1998, 37 ILM 505 (1998). The United States has signed but not ratified this

agreement, which has not yet entered into force.
(London Dumping Convention)22 will supersede the existing 1972

instrument for parties to both agreements.23 Article 3, paragraph 1 of

the Protocol specifies that

In implementing this Protocol, Contracting Parties shall apply a precautionary approach to environmental protection from dumping of wastes or

other matter whereby appropriate preventive measures are taken when

there is reason to believe that wastes or other matter introduced into the

marine environment are likely to cause harm even when there is no conclusive evidence to prove a causal relation between inputs and their

effects.

This language is virtually identical to a provision in a 1991 resolution adopted by the parties to the London Dumping Convention.24

Another instrument adopted under the auspices of the International Maritime Organization (IMO), the International Convention on

Oil Preparedness, Response and Co-operation,25 refers in preambular

language to “the importance of precautionary measures and prevention

in avoiding oil pollution in the first instance...”

f. Fisheries

Article 5, entitled “General Principles,” of the UN straddling

stocks agreement adopted in 1995,26 specifies

In order to conserve and manage straddling fish stocks and highly migratory fish stocks, coastal States and States fishing on the high seas shall, in

giving effect to their duty to co-operate in accordance with the Convention...

(c) apply the precautionary principle in accordance with Article 6[.]

234 THE PRECAUTIONARY PRINCIPLE

22. 7 November 1996, 36 ILM 1 (1997). The United States has signed the Protocol, which

has not yet entered into force.

23. Convention on the Prevention of Marine Pollution by Dumping of Wastes and

Other Matter, 13 November 1972, 11 ILM 1294 (1972).

24. IMO Doc. LDC 44(14).

25. 30 November 1990, 30 ILM 735 (1991). The United States has signed but not ratified

this instrument, which entered into force in 1995.

26. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation

and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4

August 1995, 34 ILM 1547 (1995). The United States has ratified this agreement,

which has not yet entered into force.
Article 6, entitled “Application of the Precautionary Approach,”

is devoted in its entirety to principles of precaution. That provision

provides in part:

1. States shall apply the precautionary approach widely in conservation,

management and exploitation of straddling fish stocks and highly

migratory fish stocks in order to protect the living marine resources and

preserve the marine environment.

2. States shall be more cautious when information is uncertain, unreliable

or inadequate. The absence of scientific information shall not be used as a

reason for postponing or failing to take conservation and management

measures.

An annex to the agreement consists of guidelines for application of

precautionary reference points in conservation and management of

straddling fish stocks.

g. Transboundary Watercourses

According to the 1992 ECE convention on transboundary watercourses,27 in the operative language of article 2, paragraph 5,

...the Parties shall be guided by the following principles:

(a) The precautionary principle, by virtue of which action to avoid the

potential transboundary impact of the release of hazardous substances

shall not be postponed on the ground that scientific research has not fully

proved a causal link between those substances on the one hand, and the

potential transboundary impact on the other hand.

B. A Typology of Precautionary Decision Making

Precautionary precepts apply a heuristic approach along the lines

of the adage “better safe than sorry.” A precautionary perspective

would urge governmental decision makers to err on the side of anticipating and preventing uncertain harm. The texts contained in the international instruments identified in section II.A above take a variety of

approaches in applying precaution to governmental decision-making

processes. Moreover, some issues necessarily encountered in applying

precautionary methodologies are barely alluded to in the international

PRECAUTION IN INTERNATIONAL ENVIRONMENTAL POLICY 235

27. Convention on the Law of the Non-navigational Uses of International Watercourses, 17 March 1992, 36 ILM 700 (1997). The United States is not a party to this

agreement, which entered into force in 1996.
texts. After analyzing the variety of international approaches, this section undertakes to articulate a comprehensive approach to precautionary decision making that reflects these considerations.

A helpful framework in which to analyze precautionary exhortations, and one which is frequently employed in debates over precaution

in a variety of domestic and international settings in the United States

and abroad, bifurcates the regulatory process into two phases: “risk

assessment,” which in principle establishes the strictly scientific basis

for regulatory action, and “risk management,” which is the multidisciplinary process of choosing regulatory measures.28 In this two-stage

methodology, scientific questions are isolated and addressed in an

objective manner through risk assessment methodologies at the beginning of the regulatory process. Pure policy choices are supposedly confined to the second phase, risk management. At this stage, science may

236 THE PRECAUTIONARY PRINCIPLE

28. As described by a former Administrator of the US Environmental Protection

Agency:

Risk assessment is an exercise that combines available data on a substance’s

potency in causing adverse health effects with information about likely human

exposure, and through the use of plausible assumptions, it generates an estimate of

human health risk. Risk management is the process by which a protective agency

decides what action to take in the face of such estimates. Ideally the action is based

on such factors as the goals of public health and environmental protection, relevant

legislation, legal precedent, and application of social, economic, and political

values.

William D. Ruckelshaus, Risk, Science, and Democracy, Issues in Sci. & Tech.,

Spring 1985, at 19, 28. Another influential publication has described the distinction

as follows:

We use risk assessment to mean the characterization of the potential adverse health

effects of human exposures to environmental hazards. Risk assessments include

several elements: description of the potential adverse health effects based on an

evaluation of results of epidemiologic, clinical, toxicologic, and environmental

research; extrapolation from those results to predict the type and estimate the extent

of health effects in humans under given conditions of exposure; judgments as to the

number and characteristics of persons exposed at various intensities and durations;

and summary judgments on the existence and overall magnitude of the publichealth problem. Risk assessment also includes characterization of the uncertainties

inherent in the process of inferring risk.

The term risk assessment is often given narrower and broader meanings than we

have adopted here. For some observers, the term is synonymous with quantitative

risk assessment and emphasizes reliance on numerical results. Our broader definition includes quantification, but also includes qualitative expressions of risk.

Quantitative estimates of risk are not always feasible, and they may be eschewed by

agencies for policy reasons. Broader uses of the term than ours also embrace analysis of perceived risks, comparisons of risks associated with different regulatory

strategies, and occasionally analysis of the economic and social implications of regulatory decisions–functions that we assign to risk management.

Committee on the Institutional Means for Assessment of Risks to Public Health,

Commission on Life Sciences, National Research Council, Risk Assessment in the

Federal Government: Managing the Process 18 (1983) (emphasis in original).
be relevant for such tasks as evaluating technical options. Risk management decisions, however, also engage other considerations, most notably social values.29

Within the framework of the risk assessment/risk management

duality, there appears to be agreement that precautionary approaches

are relevant, if at all, at the risk management phase.30 There is less of a

consensus about the role of precautionary elements in the risk assessment process. In particular, there has been concern that some formulations of precautionary approaches to risk assessment might allow

governments to use cultural preferences and other nonscientific factors

in making risk management decisions. The United States in particular

has identified the potential for governmental measures based on precautionary rationales to serve as trade barriers.31

1. Variations in International Formulations for Precaution

International authorities generally identify the following features

common to precautionary decision making: (1) an indication of a potential for harm; (2) uncertainty in the data set that might lead to a conclusion of a potential for harm; and (3) the desirability of a public policy

response to reduce that potential at an early juncture. Within this general

framework, as demonstrated by the texts quoted below, there is some

variability in multilateral formulations of precautionary methodologies.

a. Lack of Certainty

As with any normative approach, binding or not, most formulations of precautionary norms for governmental decision making identify the universe of actions to which those tests will apply. A central

PRECAUTION IN INTERNATIONAL ENVIRONMENTAL POLICY 237

29. “[R]isk management... describes the process of evaluating alternative regulatory

actions and selecting among them. Risk management, which is carried out by regulatory agencies under various legislative mandates, is an agency decision-making

process that entails consideration of political, social, economic, and engineering

information with risk-related information to develop, analyze, and compare regulatory options and to select the appropriate regulatory response to a potential

chronic health hazard. The selection process necessarily requires the use of value

judgments on such issues as the acceptability of risk and the reasonableness of the

costs of control.” National Research Council, supra, note 28, at 18-19 (emphasis in

original).

30. See, e.g., Communication from the Commission on the Precautionary Principle, summary para. 4, EU Doc. COM (2000) 1 (2 February 2000) (<http://europa.eu.int/

eur-lex/en/com/cnc/2000/com2000_0001en01.pdf>)(“The precautionary principle is particularly relevant to the management of risk.”)

31. See, e.g., White House Policy Declaration on Environment and Trade, infra, note 45.
component of precautionary heuristics is their application to situations

involving uncertainty, which can be regarded as one element of the

“trigger” or condition precedent for invoking precautionary methodologies. This aspect of precaution, concerning at least in part the scientific

predicate for governmental action, is best understood as an element of

the risk-assessment phase of regulatory decision making.32

Principle 15 of the Rio Declaration is typical in specifying its application to situations characterized by “lack of full scientific certainty.”

Other instruments using this identical formulation include the Bergen

Ministerial Declaration, the 1990 G-7 Houston summit communiqué, the

UN Climate Convention, the Second World Climate Conference declaration, the UN Biodiversity Convention, and the second sulfur protocol

to the LRTAP Convention. The numerous references to Principle 15 of

the Rio Declaration by name implicitly incorporate this normative prescription by reference.

The Okinawa G-8 summit declaration applies to biotechnology

and food safety issues “where available scientific information is incomplete or contradictory.” The 1990 OECD recommendation on integrated

pollution prevention refers to “the absence of complete information.”

Agenda 21 refers to “policies relating to complex systems that are not yet

fully understood and whose consequences and disturbances cannot yet

be predicted.” The protocol amending the London Dumping Convention refers to situations in which “there is no conclusive evidence to

prove a causal relation between inputs and their effects.” The straddling

stocks agreement takes as its reference point “information [that] is

238 THE PRECAUTIONARY PRINCIPLE

32. In this context, “risk assessment” does not necessarily imply only a quantitative

risk assessment, which would arguably restrict the application of precautionary

methodologies. For example, in the dispute settlement proceedings initiated by the

United States and Canada in the World Trade Organization (WTO) against the

European Union over hormone-treated beef, the WTO Appellate Body expressly

recognized that a “risk assessment” need not necessarily be quantitative in nature.

European Communities–Measures Concerning Meat and Meat Products , WTO Doc.

No. WT/DS26/AB/R & WT/DS48/AB/R, paras 186-87 (16 January 1998): “the

imposition of... a quantitative requirement finds no basis in the [Uruguay Round

Agreement on the Application of Sanitary and Phytosanitary Standards, whose

interpretation was at issue in the dispute]... [T]o the extent that the Panel purports

to exclude from the scope of a risk assessment... all matters not susceptible of quantitative analysis by the empirical or experimental laboratory methods commonly

associated with the physical sciences, we believe that the Panel is in error”. This

conclusion is particularly compelling because the Appellate Body found that a precautionary principle, as asserted by the European Union, did not control the

interpretation of the Uruguay Round SPS Agreement. Id. at para. 125. Consequently, there would be, if anything, less of a need for quantification of risk in

situations, such as those which are the subject of this paper, in which precautionary

methodologies would be applicable.
uncertain, unreliable or inadequate” and refers to “[t]he absence of scientific information.” The ECE Convention on transboundary watercourses applies in instances in which “scientific research has not fully

proved a causal link between those substances on the one hand, and the

potential transboundary impact on the other hand.”

Particularly in light of current approaches to processing scientific

uncertainty discussed in section II.B.2.a below, the variability in textual

formulations among some of the sources probably has little, if any, significance. In light of the current international debate over precaution,

one variation that might have some significance is the presence or

absence of the qualifier “scientific” or its equivalent in describing the

information base against which precautionary precepts should or must

be applied. Among the instruments surveyed, only the 1990 OECD

recommendation, Agenda 21, and the protocol amending the London

Dumping Convention fail to identify the factual predicate for action as

“scientific” in nature. Those authorities, moreover, certainly do not

exclude scientific considerations. Based on these texts, it consequently

would appear to be reasonable to expect, as a general matter, that the factual predicate for the exercise of precaution would be based on scientific

data.

b. Likelihood and Severity of Harm

The Rio Declaration is typical of many of the instruments examined in specifying that precautionary approaches apply to situations

involving “threats of serious or irreversible damage.” Again, those

instruments that allude to Principle 15 by name would be assumed to

incorporate this criterion by reference. Additionally, the UN Climate

Convention, the second sulfur protocol to the LRTAP Convention, and

the Bergen Ministerial Declaration include the identical textual formulation.

The Houston Summit communiqué is confined to “threats of irreversible damage.” The 1990 OECD recommendation on integrated

pollution prevention speaks of “the risk of significant harm to the

environment.” The formulation in the UN Biodiversity Convention

addresses “a threat of significant reduction or loss of biological diversity,” a test which is clearly unique to the subject matter of that agreement. The protocol amending the London Dumping Convention covers

situations in which “there is reason to believe that [ocean dumping is]

likely to cause harm.” The ECE Convention on Transboundary Watercourses speaks of “potential transboundary impact.”

PRECAUTION IN INTERNATIONAL ENVIRONMENTAL POLICY 239
While the precise wording varies among the instruments surveyed, all either explicitly or implicitly incorporate the notion of probability of adverse consequences within their scope of applicability. Most

of the formulations expressly utilize either the word “threat” or “risk” to

embody this concept. In light of the purpose of public policies based on

precaution—to assure early intervention in the face of uncertainty—the

choice of one or the other term probably should not be regarded as carrying any particular significance.33

Similarly, the language addressing the magnitude or severity of

harm that will qualify for the application of precaution varies among the

different instruments. The various formulations identify a variety of

thresholds of likelihood of effects, which can be considered to lie at various points on a spectrum. At one end of this continuum are “threats of

serious or irreversible damage.” At the other end is at least one example

speaking of “impact[s]” without qualification, with other tests such as

“significant harm” lying between the two. In contrast to the criterion

related to likelihood of harm, these different formulations do appear to

convey disparities in underlying intent. This suggests that, with respect

to the factor of severity of harm qualifying for the application of precautionary decision making, there would be a need to identify which instruments or authorities apply to a given situation with some particularity.

c. Policy Responses

Given the apparently wide agreement, as discussed in section II.B

above, on the treatment of precaution as a risk management response,

the authorities surveyed in this paper have remarkably little to say about

the purpose, from a public policy point of view, of the measures contemplated as a result of the application of precautionary methodologies.

Although the Rio Declaration, as discussed in the next section, includes a

cost-effectiveness criterion, it otherwise speaks only of “measures.”

Among those instruments that specifically address this question,

the policy goals are related to specific contexts, and even those tend to be

general rather than specific. The UN Climate Convention states that precautionary measures should “anticipate, prevent or minimize the causes

of climate change and mitigate its adverse effects,” and the Second

World Climate conference declaration includes similar language. The

Biodiversity Convention identifies the need to “avoid or minimize”

threats to biodiversity. The second ECE sulfur protocol identifies the

need to “anticipate, prevent or minimize emissions of air pollutants and

mitigate their adverse effects.”

240 THE PRECAUTIONARY PRINCIPLE

33. With respect to the need for quantification of risks or threats, see note 32 supra.
d. Cost-effectiveness

Among the instruments surveyed, a number specify that the riskmanagement measures contemplated should be “cost-effective.” These

include the Rio Declaration, the Ministerial Declaration from the Second

World Climate Conference, and the second ECE sulfur protocol. As

before, it would probably be most appropriate to interpret those instruments that reference the Rio Declaration consistently with this criterion.

The UN Climate Convention further reinforces the need for costeffective measures by adding that the purpose of this criterion is “to

ensure global benefits at the lowest possible cost.” As indicated by this

last example, cost-effectiveness implies a choice of measure with the

lowest cost that still leads to a result consistent with precepts of precaution.34 Again, just as the inclusion of a cost-effectiveness criterion in

some of the instruments is an indication of the intent of their drafters, the

absence of such a test in those that omit it would also have interpretive

significance.

e. Differential Criteria

The Rio Declaration qualifies its exhortation for states to apply a

precautionary approach with the phrase “according to their capabilities.” This appears to be an indication of a graduated or differential test

whose application is intended to be different for countries at various

stages of economic development. While several of the instruments identified above have differential substantive obligations for developing

countries, none of the other formulations of precautionary norms contain a similar qualification. Once again, however, this factor would also

be relevant to those instruments that reference the Rio Declaration.

2. Kinds of Scientific Uncertainty

While referring to “uncertainty,” the formulations of criteria for

precautionary decision making surveyed for this paper have remarkPRECAUTION IN INTERNATIONAL ENVIRONMENTAL POLICY 241

34. Particularly by reference to the purpose of precautionary approaches, the concept

of cost-effectiveness should be contrasted with a cost-benefit test. A criterion of

cost-effectiveness implies the identification of a precautionary goal, with the subsequent choice of risk-management measures that achieve that goal with the lowest

cost. By contrast, a cost-benefit test could imply that an otherwise precautionary

outcome might be precluded if the overall benefits of the action did not exceed the

costs. See, e.g., Richard D. Morgenstern, “Conducting an Economic Analysis:

Rationale, Issues, and Requirements”, in Economic Analyses at EPA: Assessing Regulatory Impact 26 (Richard D. Morgenstern, ed. 1997). Significantly, none of the

instruments surveyed articulate a cost-benefit test. Cf. section III.A.2.d infra (discussing US domestic legal instruments containing cost-benefit requirements).
ably little to say in elaborating the concept. While perhaps not the last

word on the matter in a public policy setting, there is a reasonably well

developed literature addressed to the nature of scientific uncertainty,

both as applied in public policy contexts and otherwise.35

a. Quantifiable Uncertainties

Although it may sound paradoxical, certain kinds of uncertainties

are “knowable” in a meaningful sense because their outer bounds can be

identified. Uncertainties in this sense can be expressed as a level of confidence in an experimental observation, a calculated result, or an inference

from empirical data. Theories of scientific uncertainty in this sense have

been well developed for a considerable time and include such elements

as statistical treatment of data sets, criteria for determining the range of

possible values indicating the reliability with which a measured or calculated value is appropriately reported, and procedures addressing the

“propagation of error” resulting from a calculation based on two or

more measured quantities, each characterized by their own error factors.36

(1) Measurement Uncertainties

From a scientific perspective, the concept of “error” probably

tracks most closely at least a portion of the concept intended to be captured in the term “uncertainty” as used in normative formulations for

precautionary public policies. “Error” does not in general refer to outright computational mistakes. Rather, the scientific concept of error

describes uncertainties in human capacity to observe and describe the

natural world through experiment. Experimental errors, or measurement uncertainties, generally fall into two categories: random and systematic. Both arise because of imperfections in the measuring process.

(a) Random errors

Random errors manifest themselves in the scatter observed when

empirically measured values diverge from one another on repeated iter242 THE PRECAUTIONARY PRINCIPLE

35. See, e.g., Vern R. Walker, “Risk Regulation and the “Faces” of Uncertainty”, 9 Risk:

Health, Safety & Environment 27 (1998); Vern R. Walker, “The Siren Songs of Science:

Toward a Taxonomy of Scientific Uncertainty for Decisionmakers”, 23 Conn. L. Rev.

567 (1991).

36. See, e.g., Yardley Beers, Introduction to the Theory of Error (1953); Philip R.

Bevington, Data Reduction and Error Analysis for the Physical Sciences (1969).
ations of the measurement process. Random experimental error can

arise because of fluctuating conditions in variables intended to be held

constant, such as the temperature of a laboratory. Alternatively, random

errors can arise because of small disturbances to the measurement apparatus. Random errors of this sort are characteristic of most if not all

experiments, no matter how carefully designed. Random error is generally expressed by a range around a measured or calculated value. The

reliability of the measurement is indicated by the expressed range of

uncertainty; the smaller the range of observed measurements, the higher

the precision of the measurement method.

(b) Systematic errors

In contrast to random errors, which can be expected to produce a

data set clustering around the “true” value, systematic errors result in a

deviation by a constant amount. Systematic errors can arise because of

the nature of experimental design or technique, errors in calibration of

instrumentation, or deviations in experimental conditions from those

for which the experiment was calibrated. In some cases, systematic

errors can be removed through the application of suitable corrections to

compensate for the error. As in the case of random errors, scientific theory and practice in this area are reasonably well developed.

(2) Sampling Uncertainties

Uncertainty in measurements may be enhanced or reduced

depending on the number of data points collected. This “sampling

error” may result in imprecise inferences arising from potential errors or

defects in sampling techniques, as in a toxicological study of the effects

of a chemical on mice.37 As a general matter, the larger the sample size

the smaller the error. At the same time, economic or other factors may

require inferences about large populations from relatively small samples. For example, this kind of uncertainty accounts for the confidence

ranges typically reported in public opinion or political polling data.

Sampling error can be processed quantitatively through the application

of statistical methods, as expressed in such tests as statistical significance

and confidence intervals.

PRECAUTION IN INTERNATIONAL ENVIRONMENTAL POLICY 243

37. For reasons such as this, the US National Academy of Science has urged the Environmental Protection Agency to discontinue the practice of precisely defining

“point estimates” of risk, and instead to offer a range of risks commensurate with

the integrity of the underlying data set. See National Research Council, Science and

Judgment in Risk Assessment (1994).
(3) Modeling Uncertainties

Uncertainties can also arise from the use of mathematical models

that are frequently used to predict the behavior of natural systems with

particular relevance to environmental problems such as stratospheric

ozone depletion and global warming. In some cases, the predictive

power of computer models can be quantified by identifying the correlation between the independent and dependent variables. Precautionary

considerations can be taken into account in the selection of a model, as

well as in the choice of model inputs and default values. For example, a

precautionary perspective might counsel applying conservative

assumptions in the absence of empirical data, as in assessing low-dose

cancer risks. Uncertainties in scientific models can also arise, however,

from more fundamental limitations in human capacity to model natural

systems, in which case attempts to quantify uncertainties may fail to

capture limits on the utility of the model.

b. Fundamental or Irreducible Uncertainties

An entirely different kind of uncertainty arises not from limitations on the capacity to observe natural systems accurately or precisely,

but from a more fundamental limitation in observers’ capacity to understand them. Various writers have identified different kinds of uncertainty in this category. For example, “concept uncertainty” arises from

an inappropriate choice of variables for observation. “Causal uncertainty” can result from flawed reasoning from empirical data about

mechanistic relationships. “Epistemic uncertainty” appears in situations of cumulative or additive exposures whose interactions may be

poorly understood. These types of uncertainty are difficult or perhaps

impossible to quantify.

Precaution as a public policy appears to be directed primarily to

these categories of fundamental or irreducible uncertainty to a much

greater extent than “traditional” scientific errors. So, for instance, precautionary decision-making methodologies as articulated in the instruments surveyed in this paper are arguably addressed to something more

fundamental than choosing the upper as opposed to the lower bound

identified by a risk assessment as a basis for risk management measures.

Rather, at least one interpretation of a precautionary methodology

addresses not uncertainties in the underlying data but in the inferences

to be drawn from them.

For example, quantitative risk assessments include both “traditional” uncertainties, arising from the integrity of the underlying data

244 THE PRECAUTIONARY PRINCIPLE
set, and “concept” uncertainties, related to assumptions concerning

extrapolations from animals to humans or high to low doses. While both

kinds of uncertainties are addressed by precautionary approaches, the

intent seems to be specifically to include the latter in the “trigger” factor,

or the determination that a precautionary approach ought to apply. So,

for example, a precautionary perspective might be taken to counsel

more aggressive risk management measures than suggested by a risk

assessment applying even conservative assumptions in the estimation

of low-dose cancer risks.

At the same time, science has relatively less to say about these

kinds of fundamental or irreducible uncertainties, at least from a quantitative point of view. Indeed, it is very likely impossible to imagine a

numerical calculus for such a purpose. Carried to its logical conclusion, a

precautionary heuristic attempts to provide a public policy response

designed to anticipate the unexpected or unpredictable.

There is no doubt that such situations exist, with potentially

profound public policy implications. For example, notwithstanding

an appreciation of the process by which chlorofluorocarbons deplete

stratospheric ozone, computer models failed to predict the existence of

the Antarctic ozone hole before its discovery in 1985.38 As suggested by

that example, there is no purely scientific methodology for addressing

such uncertainties, in this case resulting from limits in human capacity

to model natural systems.

Precautionary approaches appear to be designed to fill this gap. In

the case of stratospheric ozone before the discovery of the Antarctic

ozone hole, an application of the precautionary approach set out in Principle 15 of the Rio Declaration might have proceeded as follows: Scientific data in the early 1980s were interpreted as demonstrating the

potential for some loss of stratospheric ozone.39 The potential for larger

losses could be catastrophic, satisfying the textual test of a “threat[] of

serious or irreversible damage.” While the likelihood of such an outcome was poorly defined, it was nonetheless a possibility, satisfying

Principle 15’s test of a “lack of full scientific certainty.” The remainder of

the text would then counsel the earlier rather than later adoption of

“cost-effective measures to prevent environmental degradation” from

loss of stratospheric ozone.

PRECAUTION IN INTERNATIONAL ENVIRONMENTAL POLICY 245

38. See, e.g., Richard Elliott Benedick, Ozone Diplomacy: New Directions in Safeguarding

the Planet 19 (enlarged edition, 1998).

39. See, e.g., 45 Fed. Reg. 66,726 (7 October 1980) (US Environmental Protection

Agency advance notice of proposed rulemaking concerning chlorofluorocarbons).
3. Science in the Public Policy Process

Scientists often disagree among themselves, especially on issues at

the cutting edge of regulatory policy that may involve considerable scientific uncertainty.40 Even the supposedly strictly technical process of

risk assessment involves the exercise of judgments reflecting underlying

public policy biases.41 Social value choices necessarily intrude into the

analysis of physical phenomena by means of risk assessment methodologies through the selection of inferences and assumptions. Consequently, there is unlikely to be a single, unique way to analyze even the

purely scientific significance of much empirical data in a public policy

setting. As a result, in a regulatory context science may be relatively

unhelpful when there is a genuine scientific dispute.

The scientific peer review process operating in a regulatory context

can reduce disagreement, identify gaps and holes, and articulate the

need for further investigation. Scientific peer review involves a sometimes protracted give and take among experts. Significantly, peer review

does not anticipate the sort of bipolar “yes or no” result contemplated by

an adjudicatory process. Instead, peer review is responsive to a characterization of science as an ongoing search for knowledge against a constantly shifting and evolving background that by its very nature is

always operating at new frontiers. On the other hand, peer review in a

246 THE PRECAUTIONARY PRINCIPLE

40. As a former Administrator of the US Environmental Protection Agency has noted:

Science is only orderly after the fact; in process, and especially at the advancing

edge of some field, it is chaotic and fiercely controversial. Thus, the expectation

built into environmental law, that science can provide definitive answers to the

kinds of questions that policymakers are obliged to ask under the terms of that law,

will be disappointed to the degree that such answers derive from the forward edge

of research . . .

Nor can we order a consensus in the areas of greatest interest to environmental

policy: pollutant exposure and effects. Policymakers, including me, have often

deplored the tendency of scientific panels to engage in interminable debate rather

than reach the agreement that was clearly indicated on the invitation. Of course scientists will disagree on issues involving the advancing edge of research; that is what

they do for a living. And even if we could somehow get a group of scientists to

endorse a consensus position, it would be, in the first place, only tentative and subject to revision with the arrival of new discoveries; and in the second place, it may be

entirely wrong.

In science, the majority does not rule, as the history of science amply demonstrates.

Ruckelshaus, supra, note 28, at 24 (emphasis in original).

41. “[S]ome people in the regulated community believe that the structure of risk

assessment inherently exaggerates risk, while many environmentalists believe that

it will not capture all the risk that may actually exist....[T]his disagreement is not

resolvable in the short run through recourse to science. Risk assessment is necessarily dependent on choices made among a host of assumptions, and these choices will

inevitably be affected by the values of the choosers, whether they be scientists, civil

servants, or politicians.” Id. at 28.
regulatory setting may also engage disputed, value-laden questions of

science policy and may be unresponsive to the development of new scientific methodologies that, while lacking general acceptance, may nonetheless be reliable.

Against this background, a precautionary approach can be taken

to be one that gives particular credence to minority or dissenting scientific opinions that plausibly suggest the existence of a risk, notwithstanding some uncertainty, conceptual or otherwise. At an absolute

minimum, precaution would tend to affirm the capacity of a government to regulate on the basis of minority or uncertain science, should it

choose to do so.42

4. Range of Policy Responses

As discussed in section II.B.1.c above, multilateral formulations of

precautionary theories of regulation give relatively little attention to the

choice of measure after a determination has been made that a precauPRECAUTION IN INTERNATIONAL ENVIRONMENTAL POLICY 247

42. The US cases interpreting precautionary legislation, discussed in section III.B infra,

imply a similar conclusion, based on a theory of deference to the judgment of a technically expert agency.

The question of deference to domestic regulation based on minority or uncertain

science arose particularly pointedly during negotiations over trade-based disciplines on food safety measures in the context of the Uruguay Round of Multilateral

Negotiations in GATT and the North American Free Trade Agreement. The Executive Branch of the United States Government, which negotiated those agreements,

explained that

It is clear that the requirement in the [Uruguay Round SPS] Agreement that measures be based on scientific principles and not be maintained “without sufficient

scientific evidence” would not authorize a dispute settlement panel to substitute

its scientific judgment for that of the government maintaining the sanitary or

phytosanitary measure. For example, by requiring that a measure be based on scientific principles (rather than, for instance, requiring that a measure be based on the

“best” science) and not to be maintained without sufficient scientific evidence

(rather than, for instance, requiring an examination of the “weight of the evidence”), the [SPS] Agreement recognizes the fact that scientific certainty is rare

and many scientific determinations require a judgment among differing scientific

views. The [SPS] Agreement preserves the ability of governments to make such

judgments.

Uruguay Round Agreements Act, Statement of Administrative Action, H.R. Doc. No.

103-316, 103d Cong., 2d Sess. 656, 746, reprinted in 1994 US Code Cong. & Ad. News

4040, 4105 (emphasis in original). See also Office of the United States Trade Representative, Report on US Food Safety and the Uruguay Round: Protecting Consumers and

Promoting US Export 5 (June 1994) (same). Cf. North American Free Trade Agreement

Implementation Act, Statement of Administrative Action, H.R. Doc. No. 103-159, 103d

Cong., 1st Sess. 450, 542 (1993) (“[t]he question is... not whether the measure was

based on the ‘best’ science or the ‘preponderance’ of science or whether there was

conflicting science. The question is only whether the government maintaining the

measure has a scientific basis for it” [emphasis in original]).
tionary perspective is appropriate. United States legislation, as discussed in section III.A.2 below, articulates a variety of approaches to the

relationship between risk on the one hand and risk management options

on the other, and no single overarching principle can readily be discerned.43

As a general matter, however, one can identify a variety of public

policy responses to a risk or threat once a precautionary methodology

has been determined to be appropriate. Indeed, one of the principal recommendations of advocates of more extensive use of precaution is

the desirability or necessity of a systematic examination of a range of

policy responses.44 Among the precautionary public policy measures

that might be appropriate, depending on the circumstances, are the following:

• labeling or other risk communication strategies, which might be particularly appropriate in situations in which it is considered fitting for

individual workers or members of the public to make determinations

about their own exposures to risk;

• technical standards establishing manufacturing or processing specifications so as to reduce exposures to consumers, workers, or the

environment;

• production or manufacturing limitations, or limitations for particular

uses, for toxic substances with environmental and/or health effects;

• limitations on exposures, such as to pesticides in food or contaminants in drinking water or food;

• requirements for disposal for substances or wastes that may have

adverse environmental effects;

• limitations on emissions of environmental pollutants to air, water and

soil;

248 THE PRECAUTIONARY PRINCIPLE

43. By contrast, the European Union purports to have a relatively strict requirement

for proportionality for all risk management measures, including those motivated

by precautionary concerns. See Communication from the Commission on the Precautionary Principle, supra, note 30.

44. See, e.g., Wingspread Statement on the Precautionary Principle, 25 January 1998,

reprinted in Protecting Public Health and the Environment: Implementing the Precautionary Principle 353 (Carolyn Raffensperger & Joel Tickner, eds. 1999 (“The process

of applying the Precautionary Principle... must... involve an examination of the full

range of alternatives, including no action”).
• taxes or fees on use or emission of substances with adverse environmental or public health effects;

• requirements for prior governmental approval for substances such as

pesticides or pharmaceuticals where risks may be significant and the

need for a prior demonstration of safety is paramount; and

• bans or absolute prohibitions, either because of the hazardous nature

of the substance or process concerned, the availability of less hazardous alternatives, or the need to create incentives for the development

of alternatives.

III. UNITED STATES FEDERAL LAW

Elements of precaution are found throughout US law—in the

broad sense of legislation enacted by the Congress, regulations adopted

by federal agencies, and judicial decisions and interpretations by US

courts—addressing environment and public health. As noted in the

White House Policy Declaration on Environment and Trade, a statement

of the Executive Branch of government charged with implementing

federal law:

Precaution is an essential element of the US regulatory system given that

regulators often have to act on the frontiers of knowledge and in the

absence of full scientific certainty. We believe that this precautionary

element is fully consistent with WTO rules, which make clear that a regulatory agency may take precautionary action where there is a rational basis

for concern based upon available pertinent information. We will insist that

this ability to take precautionary action be maintained in order to achieve

our environmental objectives.

At the same time, precaution must be exercised as part of a science-based

approach to regulation, not a substitute for such an approach. In this

connection, the term precaution must not be used as a guise for trade

protectionist measures as this would have the effect of casting doubt upon,

and even undermining, environmental as well as trade policy objectives.45

A. Legislation

While precaution may be integral to much of US regulation on

environment, health, safety, and the conservation of natural resources,

the legislation in these areas has been adopted over a considerable

PRECAUTION IN INTERNATIONAL ENVIRONMENTAL POLICY 249

45. White House policy declaration on environment and trade, 16 November 1999

(available at web site <http://ustr.gov/environment/finpol.html>).
period of time, now on the order of a century, often to address discrete

problems. There is no single overarching regulatory philosophy that can

be identified in a body of statutory enactments which is neither systematic nor comprehensive. While elements of precaution appear throughout US environmental regulation, the statutes governing this field must

consequently be examined individually to identify the precautionary

elements.46

US federal legislation on environment, public health, worker

safety, and natural resources is organized by discrete statutes, often

addressing a single medium such as air or water, or a specific problem,

such as hazardous wastes. In the interest of drawing larger inferences

from this now quite massive compendium of statutory enactments, the

following analysis does not address each statute individually. Rather,

the treatment below is intended to identify precautionary themes in regulatory approaches that are common to a variety of legislative enactments.

Federal regulatory approaches that articulate precautionary policies can be divided into two broad classes: (1) procedural mechanisms,

in which the structural form of the governmental decision-making process facilitates precautionary outcomes; and (2) substantive mandates,

which establish outcome-oriented tests against which the results of governmental decision-making processes are intended to be measured.

1. Procedural Tools Facilitating Precaution

One common element of precautionary exhortations or directives,

as discussed above, is a policy preference for identifying risks and anticipating and preventing adverse effects, in contrast to reacting to environmental harms after they have been suffered. United States law facilitates

governmental decision making that is precautionary in this procedural

sense by specifying certain requirements for governmental approval as a

condition for entry into commerce, for advance notification of new substances or new uses, and for analysis preceding implementation of proposed governmental activities.

250 THE PRECAUTIONARY PRINCIPLE

46. Because the discussion of precaution as a public policy is most frequently encountered and most highly developed in the fields of environment and public health,

the examples that follow are drawn from those areas. However, precaution as a regulatory philosophy can and has influenced legislative requirements relating to

other subject matter, such as consumer protection, public safety, transportation,

and securities, banking and insurance regulation.
a. Requirements for Prior Approval

Requirements for prior governmental approval serve a gatekeeping function by shifting the burden onto the proponent of a product, substance or activity to justify the approval sought, usually by reference to a predetermined test or criterion. Before or pending approval,

the action for which the approval must be granted is ordinarily prohibited. For that reason, requirements for prior governmental approval are

regulatory tools for expressing a conclusive public policy preference for

erring on the side of caution, and are consequently inherently precautionary. If a product, substance or activity for which approval is required

may present risks, those risks will not be experienced until the approval

is granted.

United States law requires prior approval by the federal Environmental Protection Agency (EPA) before pesticides may be sold,47 and by

the federal Food and Drug Administration (FDA) before food additives,

human and animal drugs, and medical devices48 may be marketed.

Although the terminology and procedural details differ somewhat, each

of these authorities requires the submission of a request to a federal regulatory authority supported by appropriate studies, review of that

request by the governmental entity, and affirmative approval by the regulatory authority concerned. These requirements can be interpreted as a

concrete mechanism for assuring precautionary decision-making.

In the case of pesticides, for example, any pesticide residue on food

presumptively “shall be deemed unsafe”49 absent the establishment of a

tolerance (maximum residue limitation) or tolerance exemption. This

means that the federal Environmental Protection Agency, in approving

a pesticide, must simultaneously assure the safety of the product for use

on those food crops for which it is intended. Similarly, a food additive

“shall, with respect to any particular use or intended use of such additives, be deemed to be unsafe”50 absent affirmative approval of a food

additive petition by the federal Food and Drug Administration.

Permitting requirements are regulatory tools similar to requirements for prior approval, applied particularly to certain sources of air51

PRECAUTION IN INTERNATIONAL ENVIRONMENTAL POLICY 251

47. Federal Insecticide, Fungicide, and Rodenticide Act, 7 USC §§ 136-136y [hereinafter

FIFRA].

48. Federal Food, Drug, and Cosmetic Act, 21 USC §§ 301-397 (hereinafter FFDCA).

49. FFDCA § 408(a)(1), 21 USC § 346a(a)(1).

50. Id. § 409(a), 21 USC § 348(a).

51. Clean Air Act, 42 USC § 7401-7671q.
and water52 pollution and for hazardous waste facilities.53 All these

schemes specify that a regulated entity may not engage in an identified

activity—discharge of pollution into the air or water, or treatment,

storage or disposal of hazardous wastes, as the case may be—without a

permit. A prospective permittee must submit an application to a governmental permitting authority, which then must give its affirmative

approval before the regulated activity may commence. Similar requirements apply to the licensing of nuclear power plants.54

b. Requirements for Prior Notification

With the exception of identifiable subcategories such as pesticides

and hazardous wastes which are regulated under specific statutory

mandates, toxic substances in general are not subject to requirements for

prior approval under federal legislation in the United States. A notable

exception applies to private parties proposing to manufacture a new

chemical substance, or proposing to process an existing chemical substance for a significant new use. Those persons must notify the federal

Environmental Protection Agency at least 90 days in advance, providing

data that the submitter believes demonstrates that the chemical will not

present an unreasonable risk.55 Although not so aggressive as affirmative advance regulatory approval schemes, notification requirements

such as this create a temporal window during which governmental

authorities may act in a prophylactic or precautionary manner.

c. Requirements for Prior Study

Prior study is yet another approach that is useful for facilitating

public policies stressing prevention and precaution. The principal legislative vehicle in the United States is the National Environmental Policy Act

(NEPA),56 which is the US version of the methodology known internationally as “environmental impact assessment.” NEPA establishes

requirements for the analysis of the potential effects of anticipated

“major Federal actions significantly affecting the quality of the human

environment” in a formal document known as an environmental impact

statement (EIS). Implementing regulations and a considerable body of

case law establish that an EIS must contain the following elements: (1) a

252 THE PRECAUTIONARY PRINCIPLE

52. Clean Water Act (Federal Water Pollution Control Act), 33 USC §§ 1251-1387.

53. Resource Conservation and Recovery Act, 42 USC §§ 6901-6992k.

54. Atomic Energy Act of 1954, 42 USC §§ 2011-2282.

55. Toxic Substances Control Act, § 5, 15 USC § 2604 (hereinafter TSCA).

56. National Environmental Policy Act of 1969, 42 USC §§ 4321-4370 (hereinafter NEPA).
description of the proposed action; (2) an analysis of the potentially

affected environment; (3) a description of the direct and indirect potential impacts on that environment resulting from the proposed action; (4)

a consideration of alternatives, including the alternative of no action,

and the potential impacts of those alternatives; and (5) an analysis of

mitigating measures. Federal agencies are directed to commence consideration of the nature and extent of potential environmental impacts of

a proposed activity at an early stage through a process known as

“scoping.” Many states of the United States have adopted similar enactments, sometimes known as “little NEPAs.”

NEPA’s mandate for prior study before a proposed action may be

undertaken and its public participation requirements, on occasion as

enforced through judicial action, have frequently empowered federal

agencies to identify and either avoid or mitigate adverse environmental

effects at an early stage in the process of project identification and implementation.57One of NEPA’s strengths is its across-the-board application

to all federal actions and agencies, including those that do not have an

affirmative environmental mandate. Consistent with a precautionary

perspective, NEPA’s implementing regulations specifically direct agencies preparing an EIS to identify and evaluate incomplete or unavailable

information.58 On the other hand, although the statute requires the identification and analysis of alternatives, it does not require the selection of

environmentally preferable options. Moreover, its scope—in contrast to

similar requirements in some other countries—is limited to projects that

are initiated by or require the approval of public authorities, thereby

potentially exempting certain strictly private undertakings from scrutiny under the statute.

2. Substantive Mandates

United States federal legislation includes a wide variety of substantive directives that govern the outcomes of governmental decisionmaking processes, as distinct from the processes by which those decisions

are taken. Some of these formulations are more precautionary than others.

This section identifies a number of the tests found in US federal environmental legislation by reference to a precautionary imperative to err on the

side of caution in situations characterized by uncertainty.

PRECAUTION IN INTERNATIONAL ENVIRONMENTAL POLICY 253

57. Under certain circumstances, NEPA’s mandate for prior study and analysis may

augment the efficacy of other regulatory tools, such as permitting requirements.

See, e.g., Roosevelt Campobello International Part Commission v. EPA, 684 F.2d 1041

(1st Cir. 1982) (interaction of NEPA, Clean Water Act, and Endangered Species Act).

58. 40 CFR § 1502.22 (incomplete or unavailable information).
a. Zero Tolerance

Almost by definition, the most precautionary policies would be

those that tolerate absolutely no risk. The so-called “Delaney Clauses,”59

which ban the addition of demonstrated cancer-causing food colorings,

additives, and animal drugs in any amount to food, are probably the

best-known examples of this approach in United States law. The

Delaney Clauses, which articulate a “zero risk” threshold generally

regarded as the most demanding in federal law, are nonetheless subject

to a “de minimis” exception60 and have on occasion been criticized on

both scientific and policy grounds.61 Moreover, there is a certain amount

of discretion inherent in the determination whether a substance causes

cancer and is therefore subject to the statutory prohibition. The requirement for prior approval of a food additive petition62 enhances the precautionary nature of this substantive directive.

Another policy close to a “zero tolerance” philosophy is found in

the Endangered Species Act, which requires the federal government to

assure that each of its actions “is not likely to jeopardize the continued

existence” of any listed endangered or threatened species. Although the

terms “likely” and “jeopardize” suggest a relative determination based

on risk, this passage has been interpreted as a blanket prohibition on

federal actions that may harm endangered species.63 As is the case

with NEPA, this portion of the statute is limited to governmentallysponsored activities and does not in general govern the behavior of

private parties.

The Clean Water Act articulates a policy goal “that the discharge of

pollutants into the navigable waters [of the United States] be eliminated

by 1985.”64 The vigor of this mandate is somewhat attenuated by its

identification as a broad-gauge policy goal. Even now, well after the

target date of 1985, permits continue to be granted for discharges of

pollutants under the substantive portion of the statute.65

254 THE PRECAUTIONARY PRINCIPLE

59. FFDCA §§ 409(c)(3)(A), 512(d)(1)(H) & 721(b)(5)(B), 21 USC §§ 348(c)(3)(A),

360b(d)(1)(H) & 379e(b)(5)(B). Congress recently specified that the first of these

provisions no longer applies to pesticide residues in food. Food Quality Protection

Act of 1996, Pub. L. No. 104-170, 110 Stat. 1489 (1996).

60. See, e.g., Monsanto Co. v. Kennedy, 613 F.2d 947 (DC Cir. 1979).

61. See, e.g., Richard A. Merrill, “FDA’s Implementation of the Delaney Clause: Repudiation of Congressional Choice or Reasoned Adaptation to Scientific Progress?”, 5

Yale J. Reg. 1, 75-76 (1988) (“the large gaps in Delaney’s wall favor old additives and

disfavor new ones[,]... revealing the law’s inequity and documenting its perversity,

for newer technologies are often safer than older ones”).

62. See section III.A.1.a supra.

63. See, e.g., Tennessee Valley Authority v. Hill, 437 US 153 (1978).

64. Clean Water Act, § 101(a)(1), 33 USC § 1251(a)(1).

65. See section III.A.1.a supra.
b. Health- and Safety-based Criteria

Several US statutory authorities direct federal agencies to act in a

precautionary manner by reference to tests designed to protect human

health or the environment. The Clean Air Act instructs the federal Environmental Protection Agency to establish primary ambient air quality

standards for criteria pollutants such as particulates, sulfur dioxide, carbon monoxide, nitrogen oxides, ozone, and lead which, “allowing an

adequate margin of safety, are requisite to protect the public health.”66

This language precludes the consideration of economic factors in determining the appropriate requirements.67

The Occupational Health and Safety Act authorizes regulations

limiting workers’ exposure to toxic substances that “most adequately

assure[], to the extent feasible, on the basis of the best available evidence,

that no employee will suffer material impairment of health or functional

capacity...”68 This language requires the implementing agency, the

Occupational Safety and Health Administration (OSHA), to document

the presence of a significant risk to justify the need for regulatory intervention,69 but does not require the consideration of cost-benefit balancing.70

As discussed above, US law categorically prohibits the approval of

carcinogenic food and color additives. Non-cancer-causing additives

must nonetheless be “safe,”71 a term that appears without qualification

in the statutory mandate known as the “general safety clause.” “Safe

means that there is convincing evidence that establishes with reasonable

certainty that no harm will result from the intended use of the color additive.”72 Similarly, the Environmental Protection Agency may grant an

exemption from the need for a pesticide tolerance (maximum residue

limitation) only if “there is a reasonable certainty that no harm will result

PRECAUTION IN INTERNATIONAL ENVIRONMENTAL POLICY 255

66. Clean Air Act, § 109(b)(1), 42 USC § 7409(b)(1). Cf. Ethyl Corp. v. EPA, 541 F.2d 541

F.2d 1, 14 (DC Cir.) (en banc), cert. denied sub nom. E. I. Du Pont de Nemours & Co. v.

EPA, 426 US 941 (1976) (noting that risk assessment phase preceding risk management measure “is not a precautionary statute at all” because it “demand[s] a

threshold determination that the pollutant causes actual harm”).

67. Whitman v. American Trucking Associations, 531 US 457 (2001); Lead Industries Association v. EPA, 647 F.2d 1130, 1148 (DC Cir. 1980).

68. Occupational Safety and Health Act, § 6(b)(5), 29 USC § 655(b)(5).

69. Industrial Union Department v. American Petroleum Institute, 448 US 607 (1980).

70. American Textile Manufacturers Institute, Inc. v. Donovan, 452 US 490 (1981).

71. FFDCA §§ 409(c)(3)(A) & 721(b)(4), 21 USC §§ 348(c)(3)(A) & 379e(b)(4).

72. 20 CFR§ 70.3. This definition was implicitly approved in Simpson v. Young, 854 F.2d

1429 (DC Cir. 1988). Responses to individual color additive petitions under the

general safety clause as applied, however, may at least arguably be based on a risk

assessment. See, e.g., Scott v. FDA, 728 F.2d 322 (6th Cir. 1984).
from aggregate exposure to the pesticide chemical residue, including all

anticipated dietary exposure and all other exposure for which there is

reliable information,”73 including a determination that “there is a reasonable certainty that no harm will result to infants and children from

aggregate exposure to the pesticide chemical residue.”74

c. Risk-based Tests

Despite the extensive use of risk assessments and the prevalence of

risk-based policy making in the Executive Branch and federal agencies,

statutory mandates addressing environment, public health, and natural

resources include relatively few that expressly require risk assessments

by name or contain risk-based tests explicitly identified as such.

As modified by amendments in 1990, section 112 of the Clean Air

Act is one prominent example. The Environmental Protection Agency is

directed to establish technology-based controls on a list of 189 chemicals

pursuant to a statutorily-specified schedule. Within eight years after the

promulgation of a standard, the Agency must review it to determine

whether it provides “an ample margin of safety to protect human

health.”75 In the case of carcinogens, revisions to the standards are

required to the extent that they “do not reduce lifetime excess cancer

risks to the individual most exposed to emissions from a source in the

category or subcategory to less than one in one million.”76

The Food Quality Protection Act of 1996 eliminated the Delaney

Clause’s zero-tolerance requirement for carcinogenic pesticides in processed foods77 and replaced it with a requirement that all pesticide tolerances be “safe,” defined as “a reasonable certainty that no harm will

result from aggregate exposure to the pesticide... residue, including all

anticipated dietary exposures and all other exposures for which there is

reliable information.”78 In the case of pesticides for which there is no

threshold effect—i.e., for carcinogens—this test is generally regarded as

reflecting a one-in-a-million risk as determined by a quantitative risk

assessment. The statute expressly requires consideration of particular

sensitivity and exposure to pesticides by infants and children and

directs EPA to establish an additional safety factor of up to tenfold to

ensure that tolerances are safe for infants and children.79

256 THE PRECAUTIONARY PRINCIPLE

73. FFDCA § 408(c)(2)(A)(ii), 21 USC §§ 346a(c)(2)(A)(ii).

74. Id. § 408(b)(2)(C)(ii), 21 USC § 346a(b)(2)(C)(ii).

75. Clean Air Act, § 112(e)(2)(A), 42 USC § 7412(e)(2)(A).

76. Ibid.

77. See section III.A.2.a supra.

78. See section III.A.2.b supra.

79. FFDCA § 408(b)(2)(B)(iv), 21 USC §346a(b)(2)(B)(iv).
Another instance of a statutory directive for risk-based decision

making is found in the so-called Superfund statute, designed to assure

the identification and cleanup of hazardous waste sites. This authority

requires the preparation of health assessments to assist in the reduction

of exposure to hazardous substances from Superfund sites.80

The Safe Drinking Water Act directs the Environmental Protection

Agency to establish drinking water regulations designed to protect

against “adverse effect[s] on the health of persons.”81 In amendments

enacted in 1996, Congress recognized that “in considering the appropriate level of regulation for contaminants in drinking water, risk assessment, based on sound and objective science, and benefit-cost analysis

are important analytical tools for improving the efficiency and effectiveness of drinking water regulations to protect human health.”82

d. Technology-based and Cost-benefit Requirements

A number of US statutes, including those addressing air and water

pollution and hazardous waste facilities, make extensive use of technology-based approaches, in which the stated goal of controlling releases or

concentrations of a regulated substance are defined, and limited, by the

technical capability of specified pollution control systems or production

process changes.

Technology-based approaches, whatever else their utility may be,

would not ordinarily be considered to articulate a public policy based on

precaution. There is no necessary congruence between what may be

judged technically achievable and a desirable risk management outcome from a public policy perspective, particularly one that emphasizes

anticipation and prevention of harm in the face of uncertainties concerning risks. A precautionary perspective would counsel that if available

technologies, or even strongly encouraged developments in technology

through the creation of regulatory incentives, are inadequate to reduce

risks to the extent considered desirable from other perspectives, then

further actions, such as limits on production or specific use, should be

available to policy makers.

Risk-benefit balancing is yet another regulatory philosophy that

has played a significant role in federal environmental law. The principal

PRECAUTION IN INTERNATIONAL ENVIRONMENTAL POLICY 257

80. Comprehensive Environmental Response, Compensation, and Liability Act of 1980,

§ 104(i), 42 USC § 9604(i) (response authorities for hazardous waste disposal sites).

81. 42 USC § 300g-1(b)(1)(A)(i).

82. Safe Drinking Water Act, Amendments of 1996, Pub. L. No. 104-182, § 2, 110 Stat.

1614 (1996).
authority governing the approval of pesticides83 and a major statutory

enactment on toxic substances both require cost-benefit analyses.84

A risk-benefit test might be precautionary as applied to certain situations, such as large risks for which the cost of elimination or reduction

is low. As a general matter, however, the balance of costs and benefits

does not necessarily correlate with a policy of anticipating and preventing risks. It is not infrequently the case, moreover, that harms to the environment, public health, or natural resources are poorly characterized.

Difficulty in evaluating or quantifying the benefits of regulation,

defined as risks ameliorated or abated, in valuing those benefits, or in

accurately estimating costs of risk reduction may further attenuate the

utility of risk-benefit approaches by reference to a precautionary endpoint. There are also significant methodological limitations in monetizing such environmental amenities as visibility, wilderness preservation,

or endangered species.

In the case of pesticides, the requirement for prior regulatory

approval provides a procedural tool that tends to offset the effect of a

substantive mandate that is arguably less than precautionary. However,

for toxic substances more generally, as discussed in section III.A.1.b

above, there is no analogous requirement. The rigor required for the necessary finding of “unreasonable risk” prior to regulation under the Toxic

Substances Control Act,85 defined by reference to a risk-benefit balancing

approach in a statute that contains no requirement for prior governmental approval of toxic substances, has arguably limited the law’s effectiveness as a precautionary instrument of public policy.86

B. Judicial Decisions

Precautionary precepts have also been articulated by federal

courts in the United States, primarily in interpreting statutory authorities of the kind described in section III.A above to lawsuits seeking to set

258 THE PRECAUTIONARY PRINCIPLE

83. FIFRA § 3(c)(5), 7 USC § 136a(c)(5). See Save Our Ecosystems v. Clark, 747 F.2d 1240,

1248 (9th Cir. 1984) (“FIFRA registration is a cost-benefit analysis that no unreasonable risk exists to man or the environment taking into account the economic, social

and environmental costs and benefits of the use of any pesticide.”)

84. TSCA § 6, 15 USC § 2605 (“unreasonable risk” as test for regulation by reference to

cost-benefit analysis).

85. 15 USC §§ 2601-29.

86. See, e.g., Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 1214, 1230 (5th Cir. 1991)

(setting aside EPA’s final rule banning the manufacture, importation, processing,

and distribution in commerce of most asbestos-containing products, promulgated

under authority of Toxic Substances Control Act, despite ten years of agency work on

regulation and hundreds of studies on the effects of asbestos).
aside specific agency actions, such as regulations. With one exception,

all the judicial opinions in this section were rendered in cases seeking

judicial review of administrative action, a legal institution whose purpose is to provides a private party with an opportunity to contest the

legality or adequacy of governmental action implementing a regulatory

statute through a comparison of official conduct in a particular case with

specified legal mandates.

To that extent, suits seeking judicial review of agency action create

an opportunity for citizens, corporations, non-profit organizations, and

other private actors to challenge the legality of governmental action

through appeals to a neutral third party, namely a court. Accordingly,

the institution of judicial review is frequently viewed as important

source of legitimacy in US administrative law. In evaluating the legality

of the challenged action—which in the environmental field is frequently

a regulation or rule promulgated by an administrative agency—the

reviewing court will typically apply a legal test of statutory origin. The

principal, although not the only, sources of such criteria are substantive

environmental laws, some of which are summarized above. Consequently, judicial opinions in suits seeking judicial review contain interpretations of statutory authorities and analyses of the extent to which the

agency’s action which is challenged complies with the statutory test as

interpreted by the court.

Cases involving precautionary decision making usually involve

the processing of some underlying data, often of a scientific nature, by a

technically expert agency. The agency’s conclusions resulting from analysis of those data are reflected in the challenged action, such as an environmental regulation. One basic principle of US administrative law

asserts that an agency must identify the data on which it relied and

explain the reasoning by which the agency proceeded from that data set

to its action.87 Another fundamental principle of administrative law

involves the concept of “standard of review,” with scientific determinations customarily receiving a high level of deference.88

Because the mandate for precaution (or not, as the case may be)

comes from the statutory authority concerned, it is most useful to group

and analyze the cases by statute. That is, a substance might be treated

differently under one statute governing air emissions from under a difPRECAUTION IN INTERNATIONAL ENVIRONMENTAL POLICY 259

87. E.g., United States v. Nova Scotia Food Products, 568 F.2d 240 (2d Cir. 1977).

88. See, e.g., Baltimore Gas & Electric Co. v. Natural Resources Defense Council, 462 US 87,

103 (1983) (“a reviewing court must remember that the [expert administrative

agency] is making predictions, within its area of expertise, at the frontiers of science. When examining this kind of scientific determination, as opposed to simple

findings of fact, a reviewing court must generally be at its most deferential.”)
ferent statute governing pollution of waterways by the same substance.

This section describes and analyzes federal cases often relied upon

under the rubric of precaution in the United States.

1. The Ethyl Case

The clearest and most frequently cited case articulating a precautionary philosophy toward regulatory action is Ethyl Corp. v. EPA,89

which dealt with the question of lead in gasoline. At issue in this case

were regulations promulgated by the federal Environmental Protection

Agency requiring a scheduled phasedown in the lead content of leaded

gasoline. The statute required the Agency to demonstrate that the additive, tetraethyl lead, “will endanger the public health or welfare”90

before regulating it. The Agency had relied on a number of studies that

suggested, but did not conclusively prove, the deleterious character of

lead originating from gasoline, particularly to children. The lead additive manufacturers who challenged the regulation claimed that the

Agency lacked proof of actual harm and that the regulation was therefore legally defective by reference to the “will endanger” test.

In reviewing the regulation, the United States Court of Appeals for

the District of Columbia Circuit concluded that the threshold for action

did not require a demonstration of actual harm. The court emphasized

that the concept of “endanger” relates to threats and implies no necessity

for a finding of actual harm. Accordingly, the court approved the

Agency’s interpretation of the “will endanger” mandate to mean “presents a significant risk of harm.”91 The court also observed that “the magnitude of risk sufficient to justify regulation is inversely proportional to

the harm to be avoided.”92

With respect to the question of scientific uncertainty and the potentially disparate inferences that could be drawn from the data on which

the Agency relied, the court opined as follows:

Questions involving the environment are particularly prone to uncertainty. Technological man has altered his world in ways never before

experienced or anticipated. The health effects of such alterations are

often unknown, sometimes unknowable. While a concerned Congress has

passed legislation providing for protection of the public health against

260 THE PRECAUTIONARY PRINCIPLE

89. 541 F.2d 1 (DC Cir.) (en banc), cert. denied sub nom. E. I. Du Pont de Nemours & Co. v.

EPA, 426 US 941 (1976).

90. Clean Air Act, § 211(c)(1)(A), 42 USC § 1857f-6c(c)(1)(A).

91. 541 F.2d at 13.

92. Id. at 19.
gross environmental modifications, the regulators entrusted with the

enforcement of such laws have not thereby been endowed with a prescience that removes all doubt from their decision making. Rather,

speculation, conflicts in evidence, and theoretical extrapolation typify

their every action. How else can they act, given a mandate to protect

the public health but only a slight or nonexistent database upon which

to draw?... Sometimes, of course, relatively certain proof of danger or

harm... can be readily found. But, more commonly, “reasonable medical

concerns” and theory long precede certainty. Yet the statutes—and

common sense—demand regulatory action to prevent harm, even if the

regulator is less than certain that harm is otherwise inevitable.

Undoubtedly, certainty is the scientific ideal—to the extent that even science can be certain of its truth. But certainty in the complexities of

environmental medicine may be achievable only after the fact, when scientists have the opportunity for leisurely and isolated scrutiny of an entire

mechanism. Awaiting certainty will often allow for only reactive, not preventive, regulation.93

In the most frequently quoted language in the opinion, the court

summarized as follows:

Where a statute is precautionary in nature, the evidence difficult to come

by, uncertain, or conflicting because it is on the frontiers of scientific

knowledge, the regulations designed to protect the public health, and the

decision that of an expert administrator, we will not demand rigorous

step-by-step proof of cause and effect. Such proof may be impossible to

obtain if the precautionary purpose of the statute is to be served.94

2. OSHA Cases

The question of the federal government’s capacity to employ precautionary approaches to governmental decision making has arisen a

number of times in cases decided under the Occupational Safety and

Health Act’s (OSHA’s) provisions that apply to toxic substances in the

workplace. The statutory standard, as set out in section III.A.2.b above,

requires that permissible exposure limits (PELs) promulgated under the

statute be those that “most adequately assure[], to the extent feasible, on

the basis of the best available evidence, that no employee will suffer

material impairment of health or functional capacity...”95 Like the Ethyl

case, interpreting a different statutory test, the judicial opinions interpreting this provision have tended to emphasize that the intent of the

PRECAUTION IN INTERNATIONAL ENVIRONMENTAL POLICY 261

93. Id. at 24-25 (footnotes omitted).

94. Id. at 28 (footnotes omitted).

95. Occupational Safety and Health Act, § 6(b)(5), 29 USC § 655(b)(5).
legislation is to protect against risks to workers, and that to demand a

rigorous demonstration of cause and effect would be contrary to that

prophylactic purpose.

In a leading case interpreting this provision of OSHA as applied to

a PEL limiting worker exposure to asbestos fibers, the DC Circuit

observed that

...some of the questions involved in the promulgation of these standards

are on the frontiers of scientific knowledge, and consequently as to them

insufficient data is presently available to make a fully informed factual

determination. Decision making must in that circumstance depend to

a greater extent upon policy judgments and less upon purely factual

analysis. Thus, in addition to currently unresolved factual issues, the formulation of standards involves choices that by their nature require basic

policy determinations rather than resolution of factual controversies.96

In a footnote, the court went on to state that

Where existing methodology or research in a new area of regulation is

deficient, the agency necessarily enjoys broad discretion to attempt to formulate a solution to the best of its ability on the basis of available

information.97

In a challenge to a PEL for vinyl chloride, a carcinogen, the United

States Court of Appeals for the Second Circuit also adopted this interpretation of the statute, citing these passages in the earlier case with

approval.98 A challenge to a standard for lead in the workplace

prompted the DC Circuit to reaffirm its earlier interpretations, restating

that “in an area of scientific uncertainty [OSHA] has broad discretion to

form the best possible solution.”99

In a case involving review of a standard for ethylene oxide, which

the expert agency had concluded presents a significant risk of cancer in

humans, the DC Circuit elaborated its earlier views, opining that

While some of OSHA’s evidence suffers from shortcomings, such incomplete proof is inevitable when the Agency regulates on the frontiers of

scientific knowledge...

262 THE PRECAUTIONARY PRINCIPLE

96. Industrial Union Department v. Hodgson, 499 F.2d 467, 474 (DC Cir. 1974).

97. Id. at 474 n. 18.

98. Society of the Plastics Industry, Inc. v. Occupational Safety and Health Administration,

509 F.2d 1301, 1304, 1308 (2d Cir.), cert. denied sub nom. Firestone Plastics Co. v.

Department of Labor, 421 US 992 (1975).

99. United Steelworkers of America v. Marshall, 647 F.2d 1189, 1259 (DC Cir. 1980), cert.

denied sub nom. Lead Industries Association v. Donovan, 453 US 913 (1981) (emphasis

in original).
The scientific evidence in the instant case is incomplete but what evidence

we have paints a striking portrait of serious danger to workers exposed to

the chemical. When the evidence can be reasonably interpreted as supporting the need for regulation, we must affirm the agency’s conclusion,

despite the fact that the same evidence is susceptible of another interpretation.100

In a later passage, the court observed that “requiring strict proof

would fatally cripple all of OSHA’s regulatory efforts.”101

3. Testing of Chemicals

As discussed in section III.A.2.d above, section 6 of the Toxic Substances Control Act (TSCA)102 authorizes the Environmental Protection

Agency (EPA) to promulgate regulations ranging from labeling to total

bans for a chemical that “presents or will present an unreasonable risk of

injury to health or the environment,” a formulation which implies the

need for a cost-benefit analysis. Section 4 of the statute sets out a framework for EPA to require testing of suspect chemicals that “may present

an unreasonable risk of injury to health or the environment.”103

In cases in which industry interests challenged regulations requiring testing of 2-ethylhexanoic acid104 and certain fluoroalkenes,105 two

federal courts of appeal have held that the statutory formulations “present or will present an unreasonable risk” on the one hand and “may

present an unreasonable risk” on the other have different meanings,

related to the statutory purpose. In particular, the threshold of scientific

certainty for testing chemicals is lower than that for a substantive regulation, such as a production limitation. This interpretation is consistent

with the statutory purpose and structure, which is designed to identify a

universe of chemicals about which additional information is required

—those that “may present” an unreasonable risk—to determine which

of those substances require regulation, based on test data and other

information that show which of those tested “present[] or will present an

unreasonable risk.”

At a higher level of generality, these judicial opinions address the

relationship between the threshold for action and an appropriate public

policy response. A low or relaxed threshold for action is arguably approPRECAUTION IN INTERNATIONAL ENVIRONMENTAL POLICY 263

100. Public Citizen Health Research Group v. Tyson, 796 F.2d 1479, 1495 (DC Cir. 1986).

101. Id. at 1499.

102. 15 USC § 2605(a).

103. 15 USC § 2603(a)(1)(A)(i) (emphasis supplied).

104. Chemical Manufacturers Association v. EPA, 859 F.2d 977 (DC Cir. 1988).

105. Ausimont USA., Inc. v. EPA, 838 F.2d 93 (3d Cir. 1988).
priate if the risk management strategy is the collection of additional

information, as in the TSCA section 4 test rule cases.

4. Reserve Mining Co. v. EPA

Reserve Mining Co. v. EPA106 is often mentioned in tandem with the

Ethyl opinion as a leading case on the interpretation and application of

precaution in US environmental jurisprudence. Reserve Mining was a situation in which a particular company was discharging taconite tailings

containing asbestiform fibers similar to those regulated by OSHA, as

described above, because of their capacity to cause disease in occupational settings. It was, however, uncertain whether discharges into

water and the ambient air presented similar risks.

In affirming the trial court’s award of an injunction after a finding

that the air and water discharges “substantially endanger[]” the local

population, the United States Court of Appeals for the Eighth Circuit

observed as follows:

...the medical and scientific conclusions here in dispute clearly lie “on the

frontiers of scientific knowledge.” ...The trial court, not having any proof

of actual harm, was faced with a consideration of 1) the probabilities of any

health harm and 2) the consequences, if any, should the harm actually

occur....

These concepts of potential harm, whether they be assessed as “probabilities and consequences” or “risk and harm,” necessarily must apply in a

determination of whether any relief should be given in cases of this kind in

which proof with certainty is impossible. The district court, although not

following a precise probabilities-consequences analysis, did consider the

medical and scientific evidence bearing on both the probability of harm

and the consequences should the hypothesis advanced by the plaintiffs

prove to be valid.

In assessing probabilities in this case, it cannot be said that the probability

of harm is more likely than not. Moreover, the level of probability does not

readily convert into a prediction of consequences. On this record it cannot

be forecast that the rates of cancer will increase from drinking Lake Superior water or breathing Silver Bay air. The best that can be said is that the

existence of this asbestos contaminant in air and water gives rise to a reasonable medical concern for the public health. The public’s exposure to

asbestos fibers in air and water creates some health risk. Such a contaminant should be removed.

264 THE PRECAUTIONARY PRINCIPLE

106. 514 F.2d 492 (8th Cir. 1975) (en banc).
...the existence of this risk to the public justifies an injunction decree

requiring abatement of the health hazard on reasonable terms as a precautionary and preventive measure to protect the public health.107

Reserve Mining differs from all the other cases cited in this paper in

that it was an enforcement action against a particular firm initiated by

the federal government, several states of the United States, and a number of environmental groups. Because it was not a suit for judicial

review, the court of appeals in Reserve Mining concluded that the trial

court had both identified a suitably precautionary perspective and that

the judicial authority had directly applied that test appropriately to the

evidence, absent prior evaluation by a regulatory agency. By contrast, in

a suit for judicial review, the reviewing court articulates the legal standard, as to which the courts as a general matter have the final word,

and evaluates the application of that standard to the factual data set

identified by the agency. With respect to this second step, the courts

are guided by standards of review involving deference to the expert

agency’s presumptively appropriate analysis of the underlying scientific data set.

It is also worthwhile to note that all the cases cited here are ones in

which an agency—or, in the case of Reserve Mining, a lower court—has

taken the initiative to act in a proactive and precautionary manner. It

does not necessarily follow that, if the agency (or the lower court, as the

case may be) had decided to refrain from acting, the reviewing court

would necessarily have compelled or ordered precautionary action

when presented with an analysis of conflicting evidence supporting

inaction as opposed to action.108

IV. EXAMPLES OF US STATE AND LOCAL INITIATIVES

In a federal system such as that of the United States, not only the

federal government, but also sub-national governmental units, may

have legislative authority. The exercise of this authority can, on occasion, provide useful insights into precautionary approaches that may

augment or supplement federal initiatives. Precautionary legislation in

the United States has been enacted not only at the federal level, but

also by subnational units within the US federal system—by the quasisovereign constituent states, as well as by local municipalities. This

section describes two examples of each.

PRECAUTION IN INTERNATIONAL ENVIRONMENTAL POLICY 265

107. Id. at 519-20.

108. Additionally, a court may set aside precautionary agency action if not authorized

by the relevant statutory authority. See, e.g., Corrosion Proof Fittings, supra, note 86

(setting aside arguably precautionary ban on most asbestos-containing products as

exceeding statutory authority under Toxic Substances Control Act).
A. California Proposition 65

California’s Proposition 65,109 approved by voter referendum in

that state in 1986, prohibits the discharge into sources of drinking water

of any chemical that is a carcinogen or reproductive toxin except in

amounts that the discharger can demonstrate “will not cause any significant amount of the discharged or released chemical to enter any source

of drinking water.” This aspect of the statute is a discharge limitation,

together with a burden-shifting component that places the onus on the

discharger to demonstrate the absence of significant exposure. Second,

the statute prohibits exposing the public to carcinogens or reproductive

toxins, as in consumer products or food, without warning unless the risk

of a lifetime of exposure is insignificant. This requirement relies upon a

risk management theory based on risk communication, but again with a

presumption that labels are required unless demonstrated to be unnecessary.

The burden-shifting requirements of Proposition 65 can be

regarded as a precautionary approach to regulation because they

require the entity creating an exposure to demonstrate the absence of an

adverse consequence. The statute also demonstrates the variety of risk

management strategies to which precaution can be applied, including

risk communication, which is generally regarded as among the less

intrusive and least burdensome forms of regulation. Perhaps not coincidentally, the statute has generally been considered a success story, in

particular because its burden-shifting has created an incentive for industry to support the promulgation of regulations, in the absence of which

the presumption of the statute’s application would apply. Further,

because of the “California effect” resulting from the size of the market in

that state, Proposition 65 has had a nationwide impact on manufacturers

that have had an incentive to reformulate all their products to avoid the

labeling requirements in California.

B. Massachusetts Toxic Use Reduction Act

The Massachusetts Toxic Use Reduction Act of 1989 (TURA)110 is

another effort at implementing precautionary perspectives at the state

level. The overall strategy is one of pollution prevention focused on the

use of toxic chemicals and the generation of wastes in the manufacturing

266 THE PRECAUTIONARY PRINCIPLE

109. Safe Drinking Water and Toxic Enforcement Act of 1986, Cal. Health & Safety Code

§§ 25249.5-25249.13.

110. Mass. Gen. L., ch. 21I, §§ 1-23.
process. The statute does not regulate based on risk or “safe” levels of

exposure or emission, but instead encourages reductions in use.

TURA identifies a statewide goal of reducing toxic waste generated by fifty per cent by the year 1997, through a toxics use reduction

strategy as the preferred means for compliance with state and federal

laws governing toxics production and use, hazardous waste, industrial

hygiene, worker safety, public exposure to toxics, or releases of toxics

into the environment and for minimizing the risks associated with the

use of toxic or hazardous substances and the production of toxic or hazardous substances or hazardous wastes. The law requires businesses in

Massachusetts which manufacture or use more than 25,000 pounds, or

otherwise use more than 10,000 pounds annually, of about 1400 industrial chemicals to prepare a Toxics Use Reduction Plan every two years.

These plans examine the ways in which toxics are utilized in the

facility and must include an assessment of alternatives, including such

toxics-use reduction strategies as input substitution, product reformulation, production unit redesign or modification, production unit modernization, improved operation and maintenance, and recycling, reuse, or

extended use of toxics. In contrast to federal reporting requirements,

which are based on releases, firms governed by the Act must also report

the quantities of toxic chemicals used, generated as waste, and shipped

in and out as product. The reports, which are annually filed by about 500

firms, are publicly available.

Adjusted for changes in production during that period, firms governed by the statute decreased their toxic chemical use by 33 % between

1990 and 1997, generated 48 % less byproduct or waste per unit of product, and reduced releases of reportable chemicals by 83 %. Quantities of

chemicals shipped in product showed a production-adjusted reduction

of 23 % between 1990 and 1997.111

New Jersey’s Pollution Prevention Act112 and its implementing regulations113 establish a program similar to that of Massachusetts, consisting of the development of plans and the submission of reports by

individual facilities.114

PRECAUTION IN INTERNATIONAL ENVIRONMENTAL POLICY 267

111. See Toxics Use Reduction Institute, Success Stories (available at web site <http://

www.turi.org/turadata/Success/ResultsToDate.html>).

112. NJ Stat. Ann., §§ 13:1B-1 et seq.

113. NJ Admin. Code tit. 7, §§ 1K-1.1 to 12.11 (available at web site <http://www.state.

nj.us/dep/opppc/docforms/document.htm>).

114. See generally New Jersey Technical Assistance Program for Industrial Pollution

Prevention, The New Jersey Pollution Prevention Act (available at web site <http://

www.cees.njit.edu/njtap/njppa.htm>).
C. Bay Area Dioxin Phaseout

Several municipal governments in the San Francisco Bay area

—the cities of San Francisco, Oakland, and Berkeley, and Marin

County—have coordinated actions over the past two years with the goal

of eliminating dioxin emissions.115 These resolutions have given rise to

an initiative under the auspices of the Association of Bay Area Governments (ABAG) to develop a menu of dioxin pollution reduction projects

from which local governments can select to reduce their contributions to

dioxin loadings. A consultant was hired to elaborate these options,

resulting in a report116 which has been made available for public comment and is now awaiting revision and finalization. There is some possibility that this initiative will lead to a binding ordinance adopted by the

city of San Francisco requiring specified actions with respect to dioxins.

D. Los Angeles School District Integrated Pest Management

Program

The Los Angeles Unified School District has adopted an integrated

pest management (IPM) program that is expressly based on a theory of

precaution. The policy states that “no pesticide product is free from risk

or threat to human health.” The program “give[s] non-chemical methods first consideration when selecting appropriate pest control techniques” and “strive[s] to ultimately eliminate the use of all chemical

controls.”

The program establishes a Pest Management Team, consisting of

15 members, including two parents of students in the system, two community members, two environmental representatives, one teacher, and

a medical practitioner. The Pest Management Team is directed to review

and approve pesticide product use. The program also provides for a

professional IPM coordinator.117

268 THE PRECAUTIONARY PRINCIPLE

115. The resolution adopted by the San Francisco Commission on the Environment

is available at web site <http://www.sfgov.org/sfenvcomm/resolutions/021-98.

htm>).

116. Screening Evaluation of Dioxins Pollution Prevention Options (draft available at

web site <http://dioxin.abag.ca.gov/pdf/ReportText.pdf>).

117. A description of the program does not appear to be posted on the Internet. An overview of pest management policies, programs, and practices in California can be

found at <http://www.cdpr.ca.gov/docs/dprdocs/schools/text.htm>.