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RIGHT TO KNOW NOTHING
American corporations are successfully pursuing a new strategy to evade environmental laws and regulations. As the NEW YORK TIMES describes the new strategy, "Urged on by a coalition of big industries, one state after another is adopting legislation to protect companies from disclosure or punishment when they discover environmental offenses at their own plants."[1] In essence, state laws are giving corporations immunity from punishment if they self-report violations of environmental laws. Furthermore, any documents related to the self-reporting become officially secret, cannot be divulged to the public, and cannot be used as evidence in any legal proceedings. "This is a disaster for environmental enforcement," says David Ronald, chief of the environmental crimes division in the Arizona State Attorney General's Office. "It has been creeping through the states without anybody paying much attention."[1]
The strategy took root in 1993 when the Oregon state legislature passed the first-ever "audit privilege" law, as they are called. Such laws --which have now been passed in at least 21 states and are pending in 13 or 14 others --typically contain the following provisions:
** Corporations that report violations discovered during a self-audit are immune from prosecution for their violations. They cannot be fined or otherwise punished if they disclose violations promptly to government authorities and take "reasonable" steps to achieve compliance.
** Individuals who participate in conducting an environmental audit cannot be called to testify in any judicial proceeding or administrative hearing.
** Perhaps most importantly, if a corporation conducts an environmental self-audit of its operations, the information in the self-audit cannot be disclosed to the public and cannot be used as evidence in any legal proceedings, including lawsuits and/or regulatory actions. Any information related to a self-audit becomes "privileged." This exemption typically covers any documents, notes, communications, data, or opinions related in any way to the audit. The corporation itself decides what is related to its self-audit and what is not. In essence, audit privilege laws allow a corporation to stamp any document "audit-related" and thus exempt it from public disclosure, discovery, or use as evidence in any legal proceeding. For companies facing Superfund lawsuits, or toxic tort actions, this exemption can translate into billions of dollars in avoided costs.
** Some states, such as Texas, have included additional provisions that make it a crime for employees or government officials to divulge anything related to environmental self-audits. In Texas, if a person divulges such information and it leads to penalties against a polluter, the individual who divulged the information must pay the polluters' fines, penalties, and other costs. This is a blatant "anti-whistle-blower" provision, clearly intended to silence individuals who might otherwise come forward with information about violations of law.
Audit privilege laws --which are sometimes called Corporate Dirty Secrets Laws, or Right to Know Nothing Laws --apply not only to private corporations but also to governments as well. Thus citizens of a municipality can lose their right to know about pollution from their own local landfill when their state legislature passes an "audit privilege" law.
The 21 states that have, so far, passed "audit privilege" lawsinclude: Alaska, Arkansas, Colorado, Idaho, Illinois, Indiana,Ohio, Kansas, Kentucky, Michigan, Minnesota, Mississippi,Montana, New Hampshire, Oregon, South Carolina, South Dakota,Texas, Utah, Virginia, and Wyoming.
The Clinton administration supports environmental self-auditing. They say that companies know how to audit their own facilities better than the government does, and can do a better job of it. However, initially the administration took the position that companies should receive no immunity from fines or other punishment if their self-audits revealed violations. Further, the administration initially took the position that self-audit information should not be privileged or secret, saying workers and communities had a right to know what local corporations were doing to the environment.
To give these views clout, Environmental Protection Agency (EPA) administrator Carol Browner threatened to take enforcement authority away from any state that passed a typical audit privilege law. (Most U.S. federal environmental laws allow EPA to delegate enforcement authority to the states with the provision that federal standards must be met.)
Specifically, EPA put Texas on notice that their audit privilege law was unacceptable because it would compromise the ability of all governments (federal, state, and local) to enforce environmental laws. However, in March, 1997, Ms. Browner reversed her position and said that the Texas law, with minor changes, would be acceptable to EPA. The Texas law gives both immunity from prosecution AND privilege to the information produced during a self-audit, and, as we have seen, it contains a blatant anti-whistle-blower provision.
Most observers believe the administration cut a deal with Texas to appease anti-environment forces in the 105th Congress. As expected, EPA's stance in Texas has been widely regarded as the administration's acceptance of all states' audit privilege laws. More state laws are expected to pass, now that the threat of EPA sanctions has been withdrawn.
However, the anti-environment forces in Congress have refused to be appeased. This month, they proposed national "audit privilege" legislation. Senate Majority Leader Trent Lott (R-Miss.) personally endorsed S. 866, "The Environmental Protection Partnership Act," which is a standard audit privilege bill.[2] It gives immunity to violators who self-report violations; and it gives a privilege of secrecy to all information related to self-audits. Notably, S. 866 specifically prohibits EPA from revoking enforcement authority of states who pass audit privilege laws. A companion bill has been introduced in the House of Representatives --H.R. 1884, the "Voluntary Environmental Self-Evaluation Act."
For five years, corporations have been promoting environmental audit bills around the country, arguing that such laws would improve environmental protection and public health. Companies promoting audit privilege laws include AT&T, Caterpillar, Coors Brewing, DuPont, Eli Lilly, 3M, Pfizer, Procter & Gamble, Weyerhauser, and Waste Management, Inc. (WMI).
However, protecting public health may not be the first priority for all these corporations. For example, as soon as Ohio passed its "audit privilege" law in December, 1996, WMI demanded that a citizens' group return documents --some of them dating back to 1988 --which the citizens had obtained during litigation aimed at forcing the cleanup of the ELDA landfill near Cincinnati. WMI says the documents are now "privileged" under Ohio law and cannot be used in a federal court case brought by local citizens.[3] Some of the documents in question are stamped "audit" and others were simply claimed to be "audits" after the fact. Thus WMI has revealed unmistakably what "audit privilege" laws are really about.
Some 80 citizen groups have formed a vigorous coalition to fight audit privilege laws. Contact The Network Against Corporate Secrecy led by Sanford Lewis in Boston: (617) 254-1030; or sanlewis@igc.apc.org. Their informative Web site can be found at https://www.envirolink.org/orgs/gnp/nacs_toc.htm .
As we step back and try to get this "right to know nothing" trend into perspective, it appears to us that this is just another aspect of the rapidly-growing power of corporations in America and worldwide.
Big corporations approved the passage of all the major U.S. environmental laws now on the books. (If they had seriously opposed any of them, they would not be on the books.) These laws impose onerous requirements for gathering and reporting data. Large corporations complain about these features of our national laws, but in truth these reporting requirements provide a competitive advantage for large corporations vs. small. It is small businesses that get hurt by all the paperwork that our environmental laws entail. A big company just assigns a team to the task and gets it done. So big corporations created our complicated laws, partly for the competitive advantage that it gives them over their smaller, more nimble competitors.
Occasionally, however, our environmental laws cost some big polluter a major fine of $50 or $100 million dollars. And toxic tort lawsuits can cost them hundreds of millions from time to time. To reduce the likelihood of bearing such costs, big polluters now want "audit privilege" laws to protect them from public scrutiny and to give them immunity against major penalties. This retains the burdensome paperwork in the laws, which gives them a competitive advantage, while reducing the risks of major costs. The anti-environment Congress is doing its part to carry out this corporate strategy. Passing a federal "audit privilege" law would clearly benefit the big polluters. Congress has already taken other steps that fit into this strategy: the federal EPA is now so weak that it cannot possibly enforce all the laws on the books. Speaking of EPA's Carol Browner recently, the NEW YORK TIMES said in an editorial, "As a practical matter, the task of issuing individual permits for thousands of companies nationwide is beyond her staff's capabilities."[4] This weakening has not happened by accident. Congress has systematically reduced the capacity of the federal government to enforce our laws. In response, Ms. Browner has willingly formed voluntary "partnerships" with the states, giving them greater enforcement authority.
State enforcement is weaker than federal enforcement because states compete with each other for jobs. Any state that becomes known as a "pollution haven" will be looked upon favorably by polluters. Conscientious states find themselves at a disadvantage under these circumstances.
Sure enough, reports the NEW YORK TIMES, "Pennsylvania and some other big industrial states are reporting only a handful of major pollution violations, suggesting that inspectors in those states may be turning a blind eye to pollution problems.... Federal inspectors said the state [Pennsylvania] should have found at least 10 times as many violations as were reported in 1995."[5] The TIMES later said about 25% of all the states are failing to enforce the nation's environmental laws.[4]
We must note once again that the fundamental problem is the unfettered power of the modern corporation. The Clinton administration bears as much responsibility as any in this department. As the TIMES has said, "Ever since Bill Clinton came to office, he has done more for the Fortune 500 than virtually any other President in this century...."[6]
Corporations have limited capacity for self-restraint; they want it all and they want it now and they don't want anyone telling them what they can and cannot do. Until we recognize this --the nature of the corporate form --as the key problem of our time, the environment and human health will continue to deteriorate.
--Peter Montague
HEADLINES:
TOXICS AND VIOLENT CRIME
Pollution causes people to commit violent crimes --homicide, aggravated assault, sexual assault and robbery --according to new research by Roger D. Masters and co-workers at Dartmouth College.[1] Sociologists have known for a long time that violent crimes occur more in some places than in others. Some U.S. counties have only 100 violent crimes per 100,000 people per year; other counties have rates of violent crime that are 30 times as high. The question is why some places have high crime rates and others don't. Masters says pollution is part of the answer.
Masters has developed what he calls the neurotoxicity hypothesis of violent crime. According to this hypothesis, toxic pollutants --specifically the toxic metals lead and manganese --cause learning disabilities, an increase in aggressive behavior, and --most importantly --loss of control over impulsive behavior. These traits combine with poverty, social stress, alcohol and drug abuse, individual character, and other social factors to produce individuals who commit violent crimes.
Masters argues that, to be taken seriously, such a hypothesis must pass five tests. He then demonstrates how the neurotoxicity hypothesis meets all five, as follows:
1) It must be shown that individuals who engage in criminal behavior are more likely to have absorbed toxic chemicals than a comparable control population. Masters cites studies showing that low-level poisoning by lead, and by manganese, is associated with learning disabilities and attention deficit disorder, which are themselves associated with deviant behavior. (We reviewed some of this evidence for lead in REHW #529). Masters cites seven other studies showing that violent prisoners have significantly elevated levels of lead, manganese, cadmium, mercury or other toxic metals, compared to prisoners who are not violent.
2) If it is valid, the neurotoxicity hypothesis must be able to predict future violent behavior of young people exposed to toxins. Masters cites two prospective studies (and suggests we need more) showing that lead uptake at age 7 is associated with juvenile delinquency and/or increased aggression in teenage and early adult years. (See also REHW #529.) The largest study, of 1000 black children in Philadelphia, showed that both lead levels, and anemia, were predictors of the number of juvenile offenses, the seriousness of juvenile offenses, and the number of adult offenses, for males.
3) Is there a biological basis for believing that lead, manganese and other toxic metals could cause a person to lose control over impulsive and aggressive behavior? Here Masters cites a wealth of studies showing how lead and manganese cause changes in the development of the brain, and in the functioning of neurotransmitters in the brain.
Different pollutants harm the brain differently. Lead in the brain damages glia, a kind of cell associated with inhibition and detoxification. Manganese has the effect of lowering levels of serotonin and dopamine, which are neurotransmitters associated with impulse control and planning. Masters notes that low levels of serotonin in the brain are known to cause mood disturbances, poor impulse control, and increases in aggressive behavior --effects that are increasingly treated with Prozac.
Masters emphasizes that children who are raised from birth on infant formula and who are not breast fed will absorb five times as much manganese as breast-fed infants. Calcium deficiency increases the absorption of manganese. A combination of manganese toxicity and calcium deficiency adds up to "reverse Prozac," Masters says.
Masters says toxic metals affect individuals in complex ways. For example, because lead diminishes a person's normal ability to detoxify poisons, lead may heighten the effects of alcohol and drugs.
4) For the neurotoxicity hypothesis to hold up, individuals must receive doses of toxic metals sufficient to be associated with violent behavior. Masters argues that, despite recent significant decreases in lead in the environment (because leaded gasoline and lead paint have been banned in the U.S.), in neighborhoods where automobile traffic has historically been high, and in towns where industries have released large quantities of toxic metals for years, many local soils still contain toxic quantities of lead, cadmium, and manganese sufficient to poison children who play in the dirt. He also argues that aging water delivery systems very likely contribute lead and manganese because lead pipes and even iron pipes contain these toxins.
Masters argues that (a) children absorb up to 50% of the lead they ingest (compared to 8% for adults); (b) even low exposures in the womb and in early childhood can have permanent effects on intelligence and behavior; (c) current lead levels are known to have direct effects on neurotransmitters that are known to affect cognition and to influence impulse control; and (d) the highest levels of lead uptake are reported in precisely the demographic groups most likely to commit violent crimes (inner city minority youths).
Masters emphasizes the importance of studies showing a synergistic effect (multiplier effect) between toxic metals and poor diet. For example, it has been thoroughly documented that uptake of lead is greatly increased among individuals who have a diet low in calcium, zinc, and essential vitamins. Similarly, as noted above, calcium deficiency greatly increases one's absorption of manganese. Thus, Masters argues, amounts of lead and manganese that wouldn't harm a well-nourished individual may poison undernourished children.
Masters cites federal studies of nutrition to make the point that black teenage males consume, on average, only about 65% as much calcium as whites. The calcium needs of pregnant or breast-feeding women are higher than average, which creates a particular problem for minority women. And non-Hispanic black women get only 467 milligrams of calcium per day (mg/d), compared to 642 mg/d for white women, government studies show.
Because of increased manganese absorption by babies who drink infant formula and who are not breast fed, Masters considers infant formula toxic. He emphasizes that poor mothers tend not to breast-feed their babies. By 1986-87, 73 percent of infants born to mothers with more than 12 years of education were breastfed compared with 49 percent of infants born to mothers with 12 years of education, and 31 percent of mothers with less than 12 years of education. Furthermore, white infants are more than three times as likely to be breast fed as black infants. "The effects of manganese toxicity associated with infant formula are thus greatest for the poor, for ethnic minorities, and for those with little education," Masters says.
Masters cites studies showing that alcohol increases the uptake of toxic metals, at least in laboratory animals, and probably has a similar effect on humans.
5) If the neurotoxicity hypothesis is valid, then measures of environmental pollution should correlate with higher rates of violent crime.
To test his hypothesis, Masters acquired data from the FBI for violent crimes in all counties of the U.S. He correlated this with data on industrial releases of lead and manganese into the environment of each county, using data from the U.S. Environmental Protection Agency's TRI [toxic release inventory] database. He also examined other variables for each county --population size, population density, housing built before 1950, number of police officers per person, number of school dropouts and high school dropouts, educational achievement, unemployment rate, race and ethnicity [white, black, hispanic], persons below the poverty level, number of people on welfare, infant deaths per 1000 live births, all alcohol-related causes of death, and all causes of death with explicit mention of alcohol.
The EPA's recorded releases of toxic metals are not predicted by these demographic or socio-economic variables. In fact, less that 5% of the variance of reported releases of lead is accounted for by 19 socio-economic factors (many of them listed in the previous paragraph).
Masters split all U.S. counties into six groups --those with and without industrial lead releases; those with and without industrial manganese releases; and those with higher-than-average or lower-than-average rates of alcohol-related deaths. After controlling for all the conventional measures of social deterioration (poverty, school dropouts, etc.), Masters found that counties having all three measures of neurotoxicity --lead, manganese, and high alcohol --have rates of violent crime three times the national average.
In other words, environmental pollution and alcohol have a strong effect on violent crimes, completely independent of any of the "traditional" predictors of violent crime (poverty, poor education, etc.)
As Masters says, neurotoxicity is only one of many factors contributing to violence, but he believes it may be especially important in explaining why violent crime rates differ so widely between geographic areas and by ethnic group. Masters says that traditional sociological approaches to crime cannot explain why the availability of handguns or drugs triggers violent behavior in only a small proportion of the population, a proportion that varies greatly from place to place. Part of the explanation may be the way the physical environment affects brain chemistry and behavior, Masters says.
"The presence of pollution is as big a factor as poverty," Masters said recently in an interview in NEW SCIENTIST magazine.[2] "It's the breakdown of the inhibition mechanism that's the key to violent behavior," he says. When our brain chemistry is altered by exposure to toxins, we lose the natural restraint that holds our violent tendencies in check, Masters believes.
Former U.S. Surgeon General C. Everett Koop has said, "Regarding violence in our society as purely a sociologic matter, or one of law enforcement, has led to an unmitigated failure. It is time to test further whether violence can be amenable to medical/public health interventions."[3]
For decades, researchers have focused on the human health consequences of toxic metals --mainly asking, do they cause cancer? This new research seems to be telling us that we should also be looking at the way these pollutants are affecting human BEHAVIOR.
--Peter Montague
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