McGill Law Journal Revue de droit de McGill
CLEARING THE AIR? INFORMATION DISCLOSURE,
SYSTEMS OF POWER, AND THE NATIONAL
POLLUTION RELEASE INVENTORY
Greg Simmons*
The establishment of the National Pollu-
tant Release Inventory (NPRI) in 1992 marked
the emergence of a new approach to the regula-
tion of industrial pollution in Canada. In con-
tradistinction to the traditional permit-based
model of regulation, the NPRI sets no mandato-
ry discharge limits, instead requiring facilities
to track their releases of pollutants and report
them to a publically-accessible national data-
base. Through its grounding of regulation in the
interplay of social actors interacting across the
public/private divide, the NPRI exemplifies a
new governance technique of environmental
regulation, a
I examine
through a series of analytical lenses. The min-
ing industry offers an informative narrative,
and I contend that the relationship between
mining activity and the NPRI illustrates well
the risks of failing to attend to the extant dis-
tribution of power within the social dynamic
that informational regulatory mechanisms seek
to harness. I end by offering some recommenda-
tions for how the NPRI might be improved in
light of these considerations.
characterization
La cration de lInventaire national des re-
jets de polluants (INRP) en 1992 a marqu le
dbut dune nouvelle approche par rapport la
rglementation de la pollution industrielle au
Canada. Contrairement au modle traditionnel
bas sur loctroi de permis, lINRP ntablit pas
de quantits maximales autorises pour le rejet
de polluants; il requiert plutt que les installa-
tions assujetties suivent lvolution de leurs re-
jets et produisent une dclaration cet effet
dans une base de donnes nationale accessible
au public. En sarrimant aux interactions entre
les acteurs sociaux des secteurs priv et public,
lINRP sinscrit dans une nouvelle gouver-
nance de la rglementation de lenvironne-
ment, une approche que nous examinons ici
sous diffrents angles analytiques. Lindustrie
minire offre un exemple instructif et nous es-
timons que la relation entre cette indusrie et
lINRP met en lumire les risques encourus
lorsque la distribution des pouvoirs au sein de
la dynamique sociale que lINRP vise encadrer
nest pas prise en compte. la lumire de ces
enseignements, nous offrons quelques recom-
mandations visant amliorer lINRP.
* PhD candidate, Simon Fraser University School of Criminology. I would like to express
my sincere thanks to Professors Cristie Ford, Joan Brockman, and Margaret Jackson
for their feedback on earlier drafts of this paper and to the two anonymous peer review-
ers of the McGill Law Journal for their insightful comments. Any errors and omissions,
of course, are wholly my own.
Citation: (2013) 59:1 McGill LJ 9 Rfrence : (2013) 59 : 1 RD McGill 9
Greg Simmons 2013
10 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
Introduction
I.
The Establishment and Operation of the NPRI
II.
Mining and the NPRI
III.
The NPRI in Theory and Practice
A. The NPRI as New Governance Regulation
B. Empirical Analysis of Pollution Inventory
Performance
C. Freedom of Information, Democracy, and
the Political Economy
1. Democracy and Pollution Inventories in
Theory and Practice
2. Compliance, Deterrence, and Enforcement
Conclusion: Reforming the NPRI
11
12
16
22
22
23
33
34
39
42
11
INFORMATION DISCLOSURE, SYSTEMS OF POWER, AND THE NPRI
Introduction
The establishment of the National Pollutant Release Inventory (NPRI)
in 1992 marked the emergence of a new approach to the regulation of in-
dustrial toxic pollution in Canada. Whereas in the traditional permit-
based model of regulation, the regulator imposes specific restrictions on
the pollutant discharges of the regulatee, the NPRI sets no mandatory
discharge limits, instead requiring facilities merely to track their releases
of certain pollutants and report them to a publically accessible national
database. In this way, it enhances the publics capacity to scrutinize pol-
luters and pollution levels and to influence, both formally and informally,
the behaviour of polluting actors and official regulators. Through the
NPRI, a wide range of stakeholders (potentially extending to local resi-
dents, community groups, public interest advocates, employees, investors,
customers, and competitors) can enter the regulatory arenaand do so, in
principle, armed with information about who is polluting and what they
are discharging. In appealing to the interplay of social actors and social
processes, the NPRI seeks to move beyond the binary of regulator and
regulatee and to breach the public/private divide. As such, it can be con-
sidered as exemplifying a new governance technique of environmental
regulation.1
My focus here is on the NPRI as regulatory policy and, more generally,
on the information disclosure approach to environmental performance
viewed in light of economic, institutional, and political power relations
within society.2 While I review the current evidence on the pollution in-
ventory and reductions in emissions, my aim is not to advance a totalizing
narrative on the effectiveness, or lack thereof, of the NPRI, something
that likely varies widely and non-linearly in response to a complex and
hyper-interactive set of variables.3 Rather, it is to begin to consider the
1 The rubric of new governance embraces a range of approaches to the formation, opera-
tion, and enforcement of laws, regulations, standards, and norms: democratic experi-
mentalism, reflexive law, collaborative governance, soft law, responsive regulation, and
sundry other related regulatory appellations. Common to each is an eschewing of the
traditional regulatory approachcast as the hierarchical command-and-control en-
forcement of fixed rules and prescriptionsin favour of the co-optation of a range of so-
cial actors (including the regulatee) and the broader social dynamic into the governance
process.
2 In the course of this investigation, links are made to the American precursor of the
NPRI, the Toxics Release Inventory (TRI). While there are relevant differences between
the two, the TRI represents the model on which the NPRI is based, and much that can
be said of that scheme applies equally to the NPRI. Given the TRIs longer history and
location within the much larger jurisdiction of the United States, it has also been sub-
ject to more extensive study, some of which will inform this analysis.
3 For an extensive and nuanced, though still incomplete, analysis of the mechanisms by
which information disclosure affects decision-making within corporations, communities,
12 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
heretofore largely neglected theoretical issue of the play of power dynam-
ics underlying the inventorys operation. After briefly describing the de-
velopment and history of the NPRI and outlining the mechanism of its
operation, I go on to examine the pollution inventory approach in theory
and in practice, applying a series of analytical lenses. The new governance
philosophy is premised on establishing a social dynamic in which a plural-
ity of actors variously connected to the regulated entity seeks to influence
its behaviour; hence, I offer an overview of existing analyses of how these
various stakeholders have engaged with (or not engaged with) pollution
inventories. In this light, the experience of mining and the NPRI presents
an informative case study. I contend that the relationship between mining
activity and the NPRI illustrates well the risks of failing to attend to the
extant configuration of power relations within the very social interactions
that informational regulatory mechanisms seek to harness. The historic
failure of the NPRI to fully include in its domain the harmful effects of
mining is indicative of the need to carefully consider the influence of the
socio-economic landscape when designing a pollution inventory model.4
This analysis then leads to a more general examination of the ideological
and structural precepts of regulation-by-information. In light of these con-
siderations, I end by offering some recommendations for how the NPRI
might be improved with an eye to increasing its capacity to foster a posi-
tive informational dynamic of better and more accessible information,
leading to greater public involvement and improved regulatory action
across a multi-faceted regulatory regime.
I. The Establishment and Operation of the NPRI
The creation of the NPRI followed on the heels of its American cousin,
the Toxics Release Inventory (TRI); each was a product of mounting pub-
lic concern over the accumulation of industrial toxins in the environment.
In both countries, numerous high-profile issues and events of the 1970s
and 1980sthe impact of chlorofluorocarbons (CFCs) on the ozone layer,
the toxic blob found in the St. Clair River, the leakage from the Love
Canal disposal site by Niagara Fallsraised the profile of industrial
chemical contamination and spurred a growing right-to-know communi-
ty movement. And in both instances, government action was catalyzed by
and regulatory agencies, see Michael E Kraft, Mark Stephan & Troy D Abel, Coming
Clean: Information Disclosure and Environmental Performance (Cambridge, Mass: MIT
Press, 2011) [Kraft et al].
4 That is to say that the example of mining and the NPRI is offered for consideration not
because the particulars of how a powerful industry was able to avoid the reach of the
NPRI are necessarily reproduced in other sectors, but because it offers a salient illus-
tration of how power imbalances within the interplay of actors may lead to undesirable
regulatory outcomes.
13
INFORMATION DISCLOSURE, SYSTEMS OF POWER, AND THE NPRI
the devastating Bhopal chemical plant disaster.5 In the United States,
this tragedy provoked the (hurried) creation of the TRI under the Emer-
gency Planning and Community Right to Know Act (EPCRA).6 In Canada,
the NPRI was established under the rubric of the Canadian Environmen-
tal Protection Act (CEPA).7
Originally proclaimed into force in 1988, the intent of CEPA was to
move away from a piecemeal approach to toxic pollution, whereby sub-
stances could fall under the domain of any (or none) of a number of un-
connected legislative regimes,8 to a more integrative and holistic system
that deals with toxic industrial chemicals from cradle to grave.9 In the
words of Environment Canada, CEPA is intended as a framework for the
management and control of toxic substances at each stage of their life cy-
cle, from development and manufacturer/importation through to trans-
portation, distribution, use, storage and ultimate disposal as waste.10 The
result is a multifaceted and complex piece of legislation that employs a
range of regulatory devicespermitting, environmental quality objec-
tives, guidelines, and codes of practiceand crosses departmental and
even ministerial divisions.11 Established under the authority of subsection
5 See James T Hamilton, Regulation through Revelation: The Origin, Politics, and Im-
pacts of the Toxics Release Inventory Program (New York: Cambridge University Press,
2005) at 10; John Jackson, A Citizens Guide to the National Pollutant Release Inventory
(Toronto: Canadian Institute for Environmental Law and Policy, 2000) at 3.
6 See Emergency Planning and Community Right to Know Act, Pub L No 99499, 100
Stat 1741, 313 (codified at 42 USC 11023) [EPCRA]. The EPCRA was itself hastily
added to the Superfund Amendments and Reauthorization Act of 1986, Pub L 99499
as the freestanding Title III.
7 Canadian Environmental Protection Act, SC 1999, c 33 [CEPA]. The central sections
authorizing the inventory and defining the general parameters of its operation are ss
44, 46, and 4855.
8 The perverse result of this approach was often that a substance would be shuffled to the
regime that offered the least actual regulation. See Barry G Rabe, The Politics of Sus-
tainable Development: Impediments to Pollution Prevention and Policy Integration in
Canada (1997) 40:3 Canadian Public Administration 415 at 418.
9 CEPA Environmental Registry: General Information The history of CEPA (11 Jan-
uary 2007), online: Environment Canada
10 Ibid.
11 The envisaged scope of CEPA is truly profound. As outlined in CEPA, the federal gov-
ernments duties include, inter alia: applying the precautionary principle to enact pre-
ventive measures in the face of scientific uncertainty; incorporating environmental pro-
tection into social and economic decisions; assessing the toxicity and risk of new and
existing characters;
implement[ing] an ecosystem approach; … establish[ing] nationally con-
sistent standards of environmental quality; [providing] information to the
people of Canada on the state of the Canadian environment; apply[ing]
knowledge, including traditional aboriginal knowledge, science and technolo-
14 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
46(1) of CEPA, which gives the Minister of the Environment broad powers
to require reporting of information regarding pollution and toxic sub-
stances, the NPRI is one component of this mosaic.12 Section 48 then re-
quires the use of this information to establish a national inventory of re-
leases of pollutants.13 Failure to comply with the submission require-
ments of the NPRI is a hybrid offence under CEPA and carries the maxi-
mum penalty of a fine of $1,000,000 and imprisonment for a term of up to
three years.14
The listing of substances on which reporting is required appears in the
Notice with respect to substances in the National Pollutant Release In-
ventory, published annually in the Canada Gazette, Part 1.15 Facilities
meeting the minimum threshold criteria16 are required to track the re-
leases, disposals and transfers for recycling of substances listed in the
Schedule 1 to the Notice and report their results to Environment Cana-
da.17 The number of substances on which facilities are required to report
is relatively small: the most recent notice lists 366 substances.18 Compare
this to the more than twenty-three thousand chemicals appearing on the
gy, to identify and resolve environmental problems; [and] protect[ing] the en-
vironment, including its biological diversity, and human health, from the …
use and release of toxic substances, pollutants and wastes (supra note 7, s 2).
CEPA offers much grist for the analytic mill: it integrates various regulatory tech-
niques in the service of high-level goals, including both command-and-control and com-
pliance measures, and exhibits in its operation elements of a regulatory pyramid (see
Ian Ayres & John Braithwaite, Responsive Regulation: Transcending the Deregulation
Debate (New York: Oxford University Press, 1992)). Here, however, the primary subject
of analysis is the one component of CEPA that is the NPRI.
12 CEPA (supra note 7, s 46(1)) allows for the mandating of reporting on a wide range of
substances that raise potential environmental or health concerns, including those that
are listed as Priority Substances under the Act, those that may contribute significantly
to air pollution, those that may damage fish or … their habitat, and various other
heads.
13 Ibid, s 48.
14 Ibid, s 272.
15 See e.g. Notice (Department of the Environment), (2011) C Gaz I, 3816 [Notice 2011].
16 Reporting thresholds are listed in Schedule 3, s 6 of the Notice 2011 (ibid). For most
substances, the threshold is ten tonnes of the substance manufactured, processed, or
otherwise used in at least 1 per cent concentration.
17 3. General Information and Reporting Requirements, online: Environment Canada
18 Ibid.
15
INFORMATION DISCLOSURE, SYSTEMS OF POWER, AND THE NPRI
Domestic Substances List and deemed as requiring evaluation under
CEPA.19
A permanent substance review process is used to add substances to
the reportable list. Whereas relatively minor changes can be implemented
via paper consultation (or other less formal mechanisms), for multiple,
complex or controversial 20 candidate substances, a multi-stakeholder
working group (MSWG) comprising representatives from government, in-
dustry, environmental groups, and First Nations is struck to develop rec-
ommendations. The MSWG assesses candidate substances and makes
recommendations to Environment Canada. Environment Canada then re-
views these recommendations and publishes a formal response.21
Environment Canada has made the NPRI widely accessible via an
online database that allows for searches by facility, substance, location, or
type of industry.22 In its public proclamations, the federal government
claims to consider the NPRI a foundation for a range of pollution preven-
tion initiatives and approaches. Environment Canada states that the
NPRI is a major starting point for identifying and monitoring sources of
pollution in Canada as well as for developing indicators for the quality of
our air, water, and land.23 The registry is seen as advancing the right to
know, and Environment Canada makes improving public understanding
an explicit aim.24 Public access to information is also viewed as linking to
the further goal of encouraging voluntary action on the part of industry:
Public access to the NPRI motivates industry to prevent and reduce pol-
19 The list was first published in 1994. See Domestic Substances List, online: Environ-
ment Canada
20 Lynne Robinson-Lewis, Modifying the National Pollutant Release Inventory: A Guide to
the Procedures to Follow When Submitting Proposals and a Description of the Stake-
holder Consultation Process, online: Environment Canada
21 Ibid.
22 See National Pollutant Release Inventory: Tracking Pollution in Canada, online: En-
vironment Canada
rates map layers for use with Google Earth, including criteria air contaminant (CAC)
emission density maps and the NPRI facility locations.
23 Frequently Asked Questions about the National Pollutant Release Inventory (NPRI),
online: Environment Canada
Stated objectives relating to improved government management of substances of
concern include: identify pollution prevention priorities; support assessment and risk
management of chemicals, and air quality modeling; and help develop targeted regula-
tions for reducing releases of toxic substances (CEPA General Information, supra note
9).
24 NPRI database, supra note 22.
16 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
lutant releases.25 Supporting international reporting commitments is
also a stated policy intent.26
II. Mining and the NPRI
Placing the NPRI in context with regard to mining first requires some
consideration of the environmental effects of mineral extraction. The ex-
cavation and processing of metals and minerals significantly impact land,
water, and air.27 While the intense localized impact of a mining operation
on the area of the mine is by and large readily apparent, the environmen-
tal effects can extend much more broadly over the hydrology of a wide ar-
ea. This is the result of chemical changes that the often-vast amount of
material unearthed through the mining process undergoes.28
Critical to the release of toxic pollution is a process of oxidization to
which much waste rock and tailings (the waste produced in the process of
refining orea mixture of fine rock particles and extraction chemicals)
are subject. Most ore and waste rock contain sulphides, chemicals formed
in the absence of oxygen deep below the earth. Once exposed to the air
through mining, these minerals begin to oxidize, and in the process they
produce sulphuric acid, which proceeds to dissolve the metals, including
heavy metals, in the surrounding material. The resulting acid mine
draining (AMD) poses some of the most serious environmental threats
from mining, not least because once established, the process can continue
for hundreds or even thousands of years.
Many of the chemicals used in the refining of ore and the heavy met-
als, such as lead and mercury, appear in the NPRI listing of reportable
substances. However, prior to 2007, mining was exempt from the report-
25 Environment Canada, FAQ, supra note 23.
26 Report of the National Pollutant Release Inventory Multi-Stakeholder Work Group on
Substances (12 February 2009), online: Environment Canada
27 I am referring here, and throughout this paper, to hard rock mining, which makes up
the bulk of mining activity. While aggregate mines, or quarries, can have notable envi-
ronmental impacts (silting of waterways, for example), they are typically not of the
same nature or extent as hard rock mines. Acid mine drainage, for example, is not a
concern in aggregate mining.
28 The minerals or metals that are the final product of mining represent a tiny portion of
the total material removed. Most of this volume is waste rock, but even the smaller
quantity of material that is the ore (rock that is economical to refine) must be refined to
a very small portion of its original volume to obtain the desired mineral or metal. For
example, Canadas largest copper mine, Highland Valley (located near Kamloops, Brit-
ish Columbia) has an average ore grade of 0.43 per cent, meaning that 99.57 per cent of
the ore mined is eventually discarded (Highland Valley, online: Mining Technology
17
INFORMATION DISCLOSURE, SYSTEMS OF POWER, AND THE NPRI
ing requirements of the NPRI, although the further processing of mined
materials was not. According to Environment Canada, tailings were al-
ways regarded as being generated through such further processing, but
only material leaving the tailings impoundment areas was considered
subject to reporting.29 Waste rock was considered as included in the min-
ing exemption.30 In practice, tailings and waste rock disposed of on-site
(effectively, all tailings and waste rock) were excluded from reporting re-
quirements.31
Environmentalists had long maintained that the exclusion of tailings
and waste rock was unjustified. Despite being a significant source of
CEPA pollutants,32 mining remained the only industrial sector not re-
quired to report on-site disposals of these pollutants to the NPRI.33 It was
argued that, beyond denying the public information to which it was enti-
tled, the result was the creation of a distorted and potentially misleading
image of the reality of pollution in Canada.34 These efforts met with ap-
parent success when in 2006 the exemption for mining processes that take
place prior to milling was removed.35 As well, the 2006 Guide for Report-
29 See email from Franois Lavalle, Environment Canada (3 March 2009). See also Dis-
cussion Paper on Pollutant Release Reporting Requirements as It Relates to Mining
Facilities, online: Environment Canada
30 Ibid.
31 See Matt Thorpe, The Decision in Great Lakes United v. Canada (Minister of Envi-
ronment): The Federal Governments Responsibility to Report on Pollution from the
Mining Sector, and Beyond?, online: (2009) 24:2 Environmental Law Centre
32 To get a sense of the significance of exempting mining, both in terms of local impact and
international consistency, consider that in 2005, tailings and waste rock pollution ac-
counted for more than 97 per cent of the total pollutants reported by the mining indus-
try in the United States. Although in the same year, mining operations in the United
States made up less than one-half of one per cent of all industries reporting to the TRI,
they accounted for 27 per cent of all pollutants released, or more than 530 million kilo-
grams of toxic substances (EcoJustice & Great Lakes United, Lawsuit exposes Cana-
das toxic tailings secret: Groups say feds flouting law, hiding mining pollution from
public (7 November 2007), online: Mining Watch Canada
the United States, mining was initially exempt from reporting to the TRI, but as a re-
sult of efforts by environmentalists was made reportable in 1998.
33 Facilities used exclusively for oil and gas exploration or for the drilling of oil and gas
wells are also exempt from reporting requirements. All other types of oil and gas facili-
ties are required to report (see Environment Canada, Guide for Reporting to the Na-
tional Pollutant Release Inventory (NPRI) 2011, online:
3.7.1 [2011 Guide for Reporting]).
34 See Get Mining Included in the National Pollutant Release Inventory! (30 November
2002), online: Mining Watch Canada
35 See Notice (Department of the Environment) (2006) C Gaz I, 364. In prior notices (see
e.g. Notice (Department of the Environment) (2003) C Gaz I, 8), the following appeared:
18 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
ing, issued under section 47 of CEPA, did not include the statement used
in previous years that [l]isted substances in tailings are not reported un-
less they left the tailings impoundment or other forms of on-site contain-
ment.36 Despite these changes, the Minister of the Environment contin-
ued to exercise a purported discretion not to require reporting of on-site
movements of tailings and waste rocka practice that was subsequently
successfully challenged in federal court. 37 Furthermore, Environment
Canada appears to have continued to construe the meanings of a release
and a disposal per the Gazette requirements to exclude reporting.38 Tail-
ings were still only considered to be released into the environment should
they exit the tailings impoundment area. For waste rock, instructions giv-
en to mining companies were that releases of NPRI substances from
waste rock must be reported to the NPRI, but the substances in the rock
itself need not be.39 In effect, such an interpretation accorded with the po-
sition of the mining industry that toxins in waste rock and tailings occur
naturally in low concentrations and are therefore not releases to the en-
3 (1) A substance listed in Schedule 1 shall not be included in calculating its
prescribed mass reporting threshold if the substance is manufactured, pro-
cessed or otherwise used in an activity listed below:
…
(h) mining, except processing or otherwise using mined materials
The 2006 and subsequent notices list no such exemption.
36 Environment Canada, Guide for Reporting to the National Pollutant Release Inventory
(NPRI) 2006, online:
Environment Canada, Guide for Reporting to the National Pollutant Release Inventory
(NPRI) 2005, online:
37 See Great Lakes United v Canada (Minister of the Environment), 2009 FC 408, [2010] 2
FCR 515 [Great Lakes]. The court found that the Minister of the Environment was in
error in interpreting CEPA as allowing him the discretion in 2006 and subsequent
years to exempt from publication in the NPRI releases and transfers to tailings and
waste rock disposal areas by mining facilities. The court made an order in mandamus
directing the publication of such information (ibid at para 241). The Minster did not
seek leave to appeal this decision (see Federal Court Ruling to Stand: Mine Waste Tox-
ins to Be Reported (25 May 2009), online: Mining Watch Canada
38 See Lavalle, supra note 29.
39 Ibid. The record suggests that mining companies concurred with this interpretation:
prior to the court decision, there were at least eighty facilities across the country not re-
porting their tailings and waste rock pollution to the NPRI (see Environmental News
Service, Toxic Wastes from Canadian Mines Evading Scrutiny, Claim Groups (26
January 2009), online: MAC: Mines and Communities
19
INFORMATION DISCLOSURE, SYSTEMS OF POWER, AND THE NPRI
vironment.40 In light of the professed intent of the NPRI, these interpre-
tations have certain practical implications, which I now take up.
By far the most common means of tailings disposal is simply to dump
the slurry directly into tailings ponds, artificial ponds that often more
closely resemble lakes in their size.41 Typically, these are straightforward
and unsophisticated in their engineering design. Material, normally earth
or rock, is simply piled into embankments surrounding an area of natural
ground, thus creating an impoundment area into which the tailings can
be deposited. Given their size and construction, limiting the leeching of
tailings material from the pond into the surrounding environment and
groundwater can be a difficult if not impossible undertaking.42 As well, ac-
id-generating waste rock is often used to construct the tailings ponds,
with the result that, ironically, the ponds themselves become a source of
AMD.43
In fact, the mining industry now claims that the safest means of dis-
posal for tailings is their direct deposition into lakes. Elizabeth Gardiner,
vice-president for technical affairs for the Mining Association of Canada,
contends that [l]akes are often the best way for mine tailings to be con-
tained and that in the end its really the safest option for human health
and for the environment.44 As of the time of writing, nineteen Canadian
40 See National Pollutant Release Inventory: Overview (4 June 2009), online: Mining
Watch Canada
41 The tailings area at the Highland Valley copper mine, for example, is two kilometers
wide by ten kilometers long (11,000 hectares). It is one of the larger compacted, earth-
filled tailings dam structures in Canada (Jane Werniuk, Huge B.C. Mine Has Own
Style (01 June 2013), online: Canadian Mining Journal
42 For example, studies by Fisheries and Oceans Canada of mine tailings near the aban-
doned Little Bay copper mine in north-central Newfoundland show that wild mussels
from this site have some of the highest copper concentrations ever reported (Environ-
mental News Service, supra note 39).
43 See Sierra Legal Defence Fund, Digging Up Trouble: The Legacy of Mining in British
Columbia (Vancouver: Sierra Legal Defence Fund, 1998) at 11.
44 Terry Milewski, Lakes Across Canada Face Being Turned into Mine Dump Sites (16
June 2008), online: CBC News
Regulations (SOR/2002-222, s 1 [Metal Mining Effluent Regulations]), created by
amendment to the federal Fisheries Act (RSC 1985, c F-14), permit the reclassification
of lakes and freshwater bodies as tailings impoundment areas, thereby allowing min-
ing companies to get around the prohibition on the deposition of materials that are del-
eterious to fish into water frequented by fish. Under s 5(1) of the Metal Mining Effluent
Regulations, the owner or operator of a mine may deposit or permit the deposit of
waste rock or an effluent that contains any concentration of a deleterious substance and
that is of any pH into a tailings impoundment area. This tailings impoundment area
may be any water or place set out in Schedule 2 (ibid, s 1(1)). Various lakes, ponds,
tributaries, and streams currently appear on Schedule 2. When the amendment was
20 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
waterways have been reclassified as tailings impoundment areas.45 Ex-
empting reporting for tailings in tailings impoundment areas thus means
exempting direct deposition into designated lakes (and if, as the mining
industry claims, direct deposition into lakes is the safest means of tailings
disposal, then exempting lakes would also follow as a matter of logical ne-
cessity from the exemption of tailings ponds, which are by implication less
safe). If direct deposition into a completely natural and unrestricted envi-
ronmental feature is not considered a release into the environment for the
purposes of the NPRI, then it is frankly difficult to imagine what would
be.46 By this light, it seems clear that Environment Canadas understand-
ing prior to 2007 of what amounted to a release of tailings was at odds
with the most basic stated goals and objectives of the NPRI.
An analogous argument to the treatment of tailings can be made for
waste rock. Beneath the earth, the rock is inert, protected from oxidation,
and heavy metal toxins are safely ensconced within. It is the mining activ-
ity itself that directly exposes the rock to air and initiates the process that
results in heavy metals entering the hydrological system and the envi-
ronment more generally. The degree of containment for waste rock is even
less than for tailings: the rock is normally simply deposited in massive
piles. Once again, an ordinary understanding of the meaning of the term
release, and one taken in light of the professed intent of the NPRI to
track the transfer of pollutants into the environment, would seem to con-
flict with an interpretation of the Gazette Notice that exempts the toxins
in waste rock from reporting. If one purpose of data from the NPRI really
is to [help] the Government of Canada to track progress in pollution pre-
vention, evaluate releases and transfers of substances of concern, identify
and take action on environmental priorities, … and implement policy ini-
tiatives and risk management measures,47 then it is hard to see why a
major source of pollution from one of the most significant polluting indus-
tries should be (seemingly arbitrarily) exempted.
first introduced, the Liberal government of the day assured environmental groups that
the intent of the amendment was to grandfather in lakes and rivers that had been used
for mining operations. Under the current federal government, reclassifications have
pertained to new projects. See Why is the Canadian Government Letting Mining Com-
panies Turn Lakes into Toxic Dumps?, online: Council of Canadians
45 Metal Mining Effluent Regulations, supra note 44.
46 Put another way, what is the material difference between directly depositing tailings
into a natural water source as opposed to making an indirect release into one by dis-
charging tailings from a tailings pond, something that all parties (including Environ-
ment Canada) agree is reportable?
47 Environment Canada, FAQ, supra note 23.
21
INFORMATION DISCLOSURE, SYSTEMS OF POWER, AND THE NPRI
Whereas Environment Canadas interpretation of the requirements of
the NPRI accorded with that of the mining industry, it was at odds with
those environmental, community, and First Nations groups whose efforts
had eventuality led to the removal of the reporting exemption for min-
ing.48 In 2007, the environmental non-governmental organization (ENGO)
members of the NPRI Mining Subgroup reaffirmed this position to Envi-
ronment Canada.49 It was only after two ENGOs, Great Lakes United and
Mining Watch Canada, successfully sued the Minister of the Environ-
ment50 that Environment Canada changed its practice so as to require
mining facilities to report releases or transfers of pollutants to waste rock
and tailings ponds.51 In its judgment, the Federal Court pointed to the
breakdown in the consultative process and the lack of consensus on how
this information should be reported, which resulted in seventeen years of
fruitless negotiation throughout which the unsatisfactory status quo of
non-reporting endured. 52 In contrast to the new governance ideal of
stakeholder negotiation and collaboration generating mutually acceptable
outcomes, a requirement on the part of the Minister for consensus across
48 See John Jackson, National Pollutant Release Inventory and Mine Tailings & Waste
Rock: The ENGO Perspective (2007) [unpublished, submission to Environment Cana-
da].
49 Ibid.
50 See Great Lakes, supra note 37.
51 See 2011 Guide for Reporting, supra note 33, s 3.7.4 (substances contained within inert
and uncrushed components of tailings as well as within inert rock or rock with a low ac-
id-generating potential remain non-reportable).
52 In Great Lakes, Russell J wrote:
[I]t is clearly unsatisfactory that such an important part of the pollution pic-
ture in Canada is not being reported to the public under the CEPA. The Min-
ister and his predecessors have continued the incremental and consultative
process envisaged under the CEPA … At some point incremental becomes
glacial, study becomes stasis, and stasis clearly favours those who are not re-
quired to report. The Canadian public is the loser and, without such infor-
mation being readily accessible, cannot participate in the debate or gauge ful-
ly the environmental and health concerns that arise from the pollutants in
on-site TIAs and WRSAs. At the time of the hearing of this application, there
was no indication of when, or how, this information would be made available
(supra note 37 at para 145).
The court found that the parties to the Mining Sub-Group were in agreement that
the removal of the mining exemption meant that mining activities were reportable.
However, while the civil society members took this to mean reportable to the NPRI,
the mining representatives took the position that a separate inventory should be estab-
lished, a position also adopted by the Minister of the Environment. The court found that
the Minister did not have the discretion to exempt the mining sector from reporting to
the NPRI (ibid at paras 177, 202) and that transfers to tailings ponds and waste rock
sites were releases of pollutants under CEPA and hence reportable (ibid at paras
184, 188).
22 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
stakeholders here served to stymie productive change by effectively giving
a veto power to mining representatives. It would seem that the voice of
the mining industry sounds much louder in the ears of Environment Can-
ada and the government than do the voices of ENGOs and the range of
civil society actors that make up a key part of the corpus upon which a
successful new governance model is based. This discrepancy is taken up
below, where the praxis of the NPRI is examined through various regula-
tory analysis perspectives.
III. The NPRI in Theory and Practice
A. The NPRI as New Governance Regulation
I now turn to examine the new governance theory and review the em-
pirical evidence for the success of the NPRI and pollution inventories
more generally. In the new governance construal of the pollution invento-
ry approach, the regulator appears as merely one actor in a broader net-
work of social forces, while governance emerges through a heterarchy of
diverse stakeholders, both public and private, each of whom participates
in distinct but intersecting ways in an ongoing social interaction. At its
optimum, the inventory heralds an empowered citizenry, energized civil
society, and burgeoning participatory democracy, as increased access to
information facilitates individuals, community groups, and ENGOs in ex-
posing and pressuring bad actors while lauding good ones.53
For industry, proponents contend that the requirements of the inven-
tory result in information forcingas managers become aware of data
that had previously been unrecorded and are required to confront the
hard pollution numbers, they begin to manage what they measure.54
Having the numbers in front of them leads them to direct their manageri-
al efforts around those numbers. Managers can now set internal stand-
ards for production subunits, establishing the necessary transparency and
accountability to reach firm-wide objectives.55 And while opportunities for
53 See e.g. Bradley C Karkkainen, Information as Environmental Regulation: TRI and
Performance Benchmarking, Precursor to a New Paradigm? (2001) 89:2 Geo LJ 257 at
295. See also Archon Fung & Dara ORourke, Reinventing Environmental Regulation
from the Grassroots Up: Explaining and Expanding the Success of the Toxics Release
Inventory (2000) 25:2 Environmental Management 115 (the success of TRI is due to its
creation of maxi-min mechanisms that facilitate blacklisting by bringing maximum
attention to bear on the minimum performers).
54 Louis Lowenstein, Financial Transparency and Corporate Governance: You Manage
What You Measure (1996) 96:5 Colum L Rev 1335, cited in Karkkainen, supra note 53
at 299.
55 See Karkkainen, supra note 53 at 295.
23
INFORMATION DISCLOSURE, SYSTEMS OF POWER, AND THE NPRI
increased efficiency from waste reduction may now function as an internal
driver of change, pressure from the community and the media, investor
responses and their effect on stock prices, and the threat of potential
command-and-control intervention by the regulator all act as external
drivers. 56 Standardized data requirements 57 mean that managers and
boards can cross-compare their operations with competitors, ideally intro-
ducing a norm-based drive to continual improvement, one not restricted
by the de facto regulatory ceiling of performance- or technology-based
regulatory standards.58
A fundamental advantage that the pollution inventory is claimed to
proffer to regulators is a means to overcome the ubiquitous informational
bottleneck faced by conventional regulations. 59 Under a conventional
command-and-control regulatory regime, standards must be set in a legal-
ly and scientifically justifiable manner for each chemical in the vast array
of substances in industrial usage,60 a process made all the more challeng-
ing by industrys continual innovation and its increasing heterogeneity.
Regulatory resources inevitably fall far short of the magnitude of the task
at hand. By shifting the information burden to industry and enlisting civil
society in the enforcement effort, a self-sustaining virtuous dynamic is set
in motion in which benchmarking by multiple actors leads, in theory, to
continual improvement.61
B. Empirical Analysis of Pollution Inventory Performance
While numerous qualifications apply, the weight of the evidence in the
United States suggests that the TRI has had an effect in reducing levels of
toxics deposition. Between the start of the inventorys operations in 1988
56 See e.g. Frances M Lynn & Jack D Kartez, Environmental Democracy in Action: The
Toxics Release Inventory (1994) 18:4 Environmental Management 511 at 512.
57 However, reporting may not, in reality, be all that standardized. See Alexander Volokh,
The Pitfalls of the Environmental Right-to-Know (2002) 2002:4 Utah L Rev 805 at
816.
58 See Karkkainen, supra note 53 at 295.
59 Ibid at 26383. For discussion of the power of information technology to overcome limits
on data accessibility generally, and hence on public engagement, see Glenna Ford, Us-
ing Information Technology to Measure, Monitor and Report on Environmental Perfor-
mance (GreenWare Environmental Systems, 1998).
60 According to one recent review, the major environmental legislative regimes of the
United States employ 15,000 pages of regulation to detail the process of reporting
and compliance. See Daniel J Fiorino, The New Environmental Regulation (Cam-
bridge, Mass: MIT Press, 2006) at 1.
61 Ibid.
24 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
and 2007, emissions fell by an impressive 61 per cent.62 Whereas such fig-
ures are often cited by disclosure advocates as evidence of the efficacy of
the TRI in reducing emissions, correlation, of course, does not imply cau-
sation.63 Various social, legal, political, or economic factors wholly unre-
lated to the TRI, including broader sectoral shifts and technological
changes, may have influenced emissions over this period.64 At the regula-
tory level, many reportable chemicals also fall under the rubric of conven-
tional regulation, and the tightening of command-and-control restrictions
that took place during this period is likely responsible for some reduc-
tion.65 Alternatively, the TRI may play an etiological rolejust not the
62 The distribution of reductions across industry sectors, states, communities, and facili-
ties has been far from uniform, however, and significant disparities exist between high
and low performers. See especially Kraft et al, supra note 3. Consider, for example, that
between 1991 and 2000, the 5,213 facilities that reduced their emissions did so by an
aggregate 66 per cent, while for the 3,176 facilities that increased (or had no change in)
emissions, these doubled (ibid at 74). The bulk of reductions are attributable to a com-
paratively small number of large and well-capitalized firms in select industrial sectors
(see Karkkainen, supra note 53 at 343).
Later comparison periods also indicate a continued, if slowing, decrease in emis-
sions, with rates falling an overall 30 per cent between 2001 and 2010 (Environmental
Protection Agency, Toxics Release Inventory National Analysis Overview (Washington,
DC: Environmental Protection Agency, 2010)). It should be noted that such compari-
sons are made, by necessity, only for those chemicals reportable since the beginning of
the period in question (or often since the establishment of the registry) and do not in-
clude the various reportable substances added since.
63 A better sense of the meaningfulness of emission reductions contemporaneous with the
operation of the TRI might be achieved if data were available for the period prior to the
inventorys establishment. Was the trend in emissions already negative, or was there a
discernible shift following the TRIs establishment? The problem, of course, is that the
TRI itself is the primary source of data on its own performanceit is simultaneously
both a dependent and an independent variable. Nonetheless, comparison of TRI figures
with other independent measures of emissions before and after its introduction might
prove of value here.
64 Technological improvements often lead to more efficient production, and more efficient
production in itself can lessen environmental harmmuch pollution is really comprised
of wasted resources, after all. It may be that in some instances, decreased emissions are
merely a fortunate side effect of technological changes driven by an economic impera-
tive that is unrelated to TRI reporting. Proponents contend that even where economic
(as opposed to environmental) performance is the underlying motivator of emissions re-
duction, the increase in information brought to light through the TRI reporting process
can further that end.
65 Fung & ORourke (supra note 53 at 11617) note, however, that during a period of large
TRI chemical reductions, emissions under the United States Clean Air Act (42 USC
7401ff [Clean Air Act]) and Clean Water Act (33 USC 1251ff [Clean Water Act]) re-
mained essentially flat, but also point out that the comparison with the TRI is not en-
tirely fair, as these regimes include substances that are more inherent to combustion
and other basic industrial processes and hence less easily replaced with alternatives.
INFORMATION DISCLOSURE, SYSTEMS OF POWER, AND THE NPRI
25
one inferred by disclosure advocates. A key finding of Kraft, Stephan, and
Abels mixed methods analysis of the TRI is that in areas where emission
improvements have occurred, the backdrop of conventional regulation
proved critical. The TRI thus appears to facilitate compliance with and en-
forcement of conventional regulationthe proximate driver of reduc-
tionsrather than to change behavior directly.66
Moreover, the interpretation of reported reductions is open to debate.
The figures that firms report are often based on estimates of questionable
methodology and subject to inconsistencies across companies.67 Some re-
ported decreases may merely reflect paper changes in reporting proce-
dures, something that is particularly pertinent to the initial large drop in
emissions following implementation of the TRI.68 As both the TRI and the
NPRI exempt entities if they manufacture, process, or use a chemical be-
low a threshold level, a facility that reduces emissions to below this cut-off
appears, for reporting purposes, to reduce them to zero. This effect could
significantly exaggerate the extent of reductions.69 As well, the verifica-
tion of industry self-reporting is minimal,70 and there is evidence of dis-
In the particular case of petroleum refineries, analysis by Bui revealed that legisla-
tive regimes such as the Clean Air Act and Clean Water Act affect TRI releases both di-
rectly and indirectly. The direct impact results from simultaneous regulation under
these (and other) programs; the indirect effect occurs via their regulation of production
inputs, leading to changes in the releases of substances reportable to the TRI but not
regulated under these programs (see Linda TM Bui, What We Know About What We
Know About Toxic Polluter Behavior from the TRI: Evidence from (almost) Twenty
Years of TRI Data in the Petroleum Refining Industry, (May 2012) [unpublished]).
66 Kraft et al, supra note 3 at 195.
67 See David J Abell, Emergency Planning and Community Right to Know: The Toxics
Release Inventory (1994) 47:3 SMU L Rev 581 at 591, n 88. One study suggested that
for some facilities, reported release data may overestimate or underestimate actual
amounts by a factor of two (Rosemary OLeary et al, Managing for the Environment:
Understanding the Legal, Organizational, and Policy Challenges (San Francisco:
Jossey-Bass, 1999) at 329).
68 See e.g. Volokh, supra note 57 at 817 (describing how the change, between 1988 and
1990, from reporting ammonium-sulfate to reporting ammonia pushed the numbers
down while actual usage likely increased); Thomas E Natan, Jr & Catherine G Miller,
Are Toxic Release Inventory Reductions Real? (1998) 32:15 Environmental Science &
Technology 368A at 368A74A (finding that more than half of reported reductions of
production-related waste were phantom reductions of this kind).
69 Using data from the Massachusetts Toxics Use Reduction Act, Bennear estimates that
errors in inference introduced by reporting thresholds may account for up to 40 per cent
of the observed decline in reported toxic releases in Massachusetts (Lori S Bennear,
What Do We Really Know? The Effect of Reporting Thresholds on Inferences Using
Environmental Tight-to-Know Data (2008) 2:3 Regulation & Governance 293).
70 EPA staff inspects only about 3 per cent of reports received. Environment Canada in-
spections are also minimal. See Kathryn Harrison & Werner Antweiler, Environmental
Regulation vs. Environmental Information: A View from Canadas National Pollutant
26 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
crepancies between reported and actual emissions.71 Further, the actual
impact of the reductions achieved on environmental and human health is
not always clear. The disparity between the vast number of potentially
toxic substances and the regulatory resources available means not only
that the inventory represents a very small portion of toxic chemicals in
use, but also that listing is often driven by convenience and a degree of
arbitrariness.72 The result is that many reportable toxic substances may
have a non-reportable replacement that is equally or more harmful.
Hence, a chemical substitution that reduces reported figures may not
lessen the real environmental hazard. Moreover, facilities report only to-
tal amounts of released substances. Such figures do not account for their
relative or absolute toxicity (which can vary by many orders of magni-
tude), leaving a potentially misleading impression of actual risk and rela-
tive performance across firms.73 Different types of exposure and handling
(direct release into the atmosphere versus injection deep into the earth,
away from human contact, for example) and associated risk to people and
communities (such as the degree of cumulative impact from exposure to
multiple potentially interactive chemicals) are further factors affecting ac-
tual risk. Caution must therefore be exercised in inferring changes to en-
vironmental impact from changes to the raw data as reported. The EPA
has attempted to address this issue by developing the Risk-Screening En-
vironmental Indicators (RSEI) model, a computer-based screening tool
that analyzes factors that may result in chronic human health risks and
Release Inventory (25 January 2001), online:
Antweiler, Environmental Regulation].
71 For example, formaldehyde emissions tests at a Louisiana-Pacific facility in California
found that the corporations true releases were double those reported (Volokh, supra
note 57 at 815). Koehler and Spengler demonstrate underreporting of polycyclic aro-
matic hydrocarbons by primary aluminum facilities and dislocation of emissions over-
seas after a tightening of regulatory requirements (Dinah A Koehler & John D Speng-
ler, The Toxic Release Inventory: Fact or Fiction? A Case Study of the Primary Alumi-
num Industry (2007) 85:2 Journal of Environmental Management 296). Comparing
reported air emissions with concentrations detected by EPA monitors, de Marchi and
Hamilton found statistical deviations that suggested that firms were not accurately re-
porting emissions of lead and nitric acid (Scott de Marchi & James T Hamilton, As-
sessing the Accuracy of Self-Reported Data: An Evaluation of the Toxics Release Inven-
tory (2006) 32:1 J Risk Uncertainty 57). On the other hand, Hamilton found that initial
non-reporting in Minnesota was by small firms, and that the firms subsequent compli-
ance did not significantly increase total reported releases (supra note 5 at 8195). The
EPA itself reports generally good agreement between facility reporting and its own
(minimal) surveillance (see TRI Data Quality Information (11 September 2012),
online: Environmental Protection Agency
72 See Volokh, supra note 57 at 83738.
73 Ibid at 82027.
27
INFORMATION DISCLOSURE, SYSTEMS OF POWER, AND THE NPRI
thereby facilitates the identification of releases that pose the highest po-
tential risk.74 No such model has been developed for the NPRI.75
Analysis of NPRI figures has been much more limited. While Harrison
and Antweiler found a 27 per cent reduction in releases between 1993 and
1999, they see the inventory as unlikely to have contributed significantly
to this decline.76 This is in part because of the greater concentration of re-
leases within a smaller number of facilities, a handful of which were re-
sponsible for the bulk of reductions. Harrison and Antweiler argue that
these particular improvements can be traced to specific command-and-
control enforcement measures and increases in conventional regulatory
standards.77
Despite these significant caveats, praise for the TRI and the NPRI has
come from across an array of interested stakeholders, including environ-
mentalists, industry, government officials, and regulators.78 In the United
States, these accolades are in accord with various empirical analyses
which provide support for the contention that the TRI enlists forces be-
yond the state to influence firm behaviour. For example, a study by Ham-
ilton found that firms that reported higher levels of pollution received
greater negative news coverage, which led to significantly reduced share
prices.79 Follow-up work by Konar and Cohen demonstrated a positive
correlation between levels of pollution reported to the TRI and declines in
74 See Environmental Protection Agency, Risk-Screening Environmental Indicators
(RSEI), online:
five years, Bui (supra note 65) showed that, while RSEI toxicity weighted and un-
weighted aggregate releases both experienced large declines, the patterns of releases
were substantially different, suggesting that inferences regarding the impact of the TRI
will be highly sensitive to the measure of releases (weighted or unweighted) adopted.
75 However, using a model that combines toxicity, chemical fate properties, and NPRI re-
lease data, Environment Canada has developed a relative risk ranking for a subset of
NPRI substances. See Allison M Dunn, A Relative Risk Ranking of Selected Substanc-
es on Canadas National Pollutant Release Inventory (2009) 15:3 Human and Ecologi-
cal Risk Assessment 579.
76 Kathryn Harrison & Werner Antweiler, Incentives for Pollution Abatement: Regula-
tion, Regulatory Threats, and Non-Governmental Pressures (2003) 22:3 Journal of Pol-
icy Analysis and Management 361 at 368.
77 Harrison & Antweiler, Environmental Regulation, supra note 70 at 18.
78 See e.g. Fung & ORourke, supra note 53 at 116. See also Karkkainen, supra note 53 at
287.
79 James T Hamilton, Pollution as News: Media and Stock Market Reactions to the Tox-
ics Release Inventory Data (1995) 28:1 Journal of Environmental Economics and Man-
agement 98.
28 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
share value.80 However, the highest-polluting firms did not demonstrate
the greatest increases in environmental performance following this nega-
tive publicity, likely because these results were expected by investors.
Khanna, Quimio, and Bojilova then found that the ongoing publication of
TRI data allowed investors to benchmark firm performance, penalizing
those firms whose performance declined over time and rewarding those
which made progress.81 However, while uncontrolled discharges were re-
duced, releases and transfers for off-site disposal were not, suggesting
that the abnormal losses experienced by firms caused them to substitute
off-site transfers for on-site discharges.82 As well, while not necessarily
drawing a causal connection between the two, numerous studies have uti-
lized TRI data to examine how investors or other market actors value en-
vironmental performance.83
Beyond its effect on market actors, there is evidence that the presence
of the TRI has some impacts on the decisions of ordinary citizens and of
civil society. In a study of house prices in Nebraska, Decker, Nielsen, and
Sindt found the residential housing market to be significantly more sensi-
80 Shameek Konar & Mark A Cohen, Information as Regulation: The Effect of Communi-
ty Right to Know Laws on Toxic Emissions (1997) 32:1 Journal of Environmental Eco-
nomics and Management 109.
81 Madu Khanna, Wilma Rose H Quimio & Dora Bojilova, Toxics Release Information: A
Policy Tool for Environmental Protection (1998) 36:3 Journal of Environmental Eco-
nomics and Management 243.
82 Ibid at 265.
83 Konar and Cohen scrutinized the effect of poor environmental performance on a firms
intangible asset value, calculating that for the firms they examined, every 10 per cent
reduction in the toxic emission results in a $34 million increase in goodwill and/or
brand name value (Shameek Konar & Mark A Cohen, Does the Market Value Envi-
ronmental Performance? (2001) 83:2 Review of Economics and Statistics 281 at 288).
Schneider found that environmental performance was a significant determinant of
firms bond pricing, but one that fades substantially as a firms credit quality increases
(Thomas E Schneider, Is Environmental Performance a Determinant of Bond Pricing?
Evidence from the U.S. Pulp and Paper and Chemical Industries (2011) 28:5 Contem-
porary Accounting Research 1537 at 155257). Bosworth and Clemens demonstrate a
significant relationship between firms environmental performance and their market
value (William Bosworth & Bruce Clemens, Does It Pay to Be Environmentally Re-
sponsible? Toxic Releases and Financial Performance (2011) 7:2 Journal of Strategic
Innovation and Sustainability 115). Longitudinal analysis by Clarkson et al of TRI data
for the pulp and paper, chemical, oil and gas, and metals and mining industries indi-
cates that going green is associated with improved financial performance, although
such a strategy cannot be easily replicated by all firms (Peter M Clarkson et al, Does It
Really Pay to Be Green? Determinants and Consequences of Proactive Environmental
Strategies (2011) 30:2 Journal of Accounting and Public Policy 122). Antweiler and
Harrison employed Canadas NPRI figures as an indirect measure of green consumer-
ism, which they find has a significant presence but a small economic impact (Werner
Antweiler & Kathryn Harrison, Toxic Release Inventories and Green Consumerism:
Empirical Evidence from Canada (2003) 36:2 Canadian Journal of Economics 495).
29
INFORMATION DISCLOSURE, SYSTEMS OF POWER, AND THE NPRI
tive to TRI releases than to regulated pollutant releases.84 Oberholzer-Gee
and Mitsunari discovered that release of TRI data did affect risk percep-
tions and hence housing prices, though only for those properties located
close to reporting facilities.85 Econometric analysis by Hanna also revealed
an inverse relation between house price and distance to reporting facili-
ty.86 On the other hand, a study by Bui and Mayer revealed no relation-
ship between TRI information releases and house prices, neither initially
or over time; nor did they find a relationship between declines in toxic re-
leases and any evidenced public activism.87
Research by Kraft, Stephan, and Abel found that states with a higher
conservation group membership per one thousand residents had a greater
net number of facilities that reduced emissions.88 Voter turnout, studied
as a proxy for citizen engagement with civic issues generally, has also
been correlated positively with reductions in releases.89 In one study in
which causality seems more definite, the information shock resulting
from the 1998 addition of coal and oil plants to those industries required
to report to the TRI was found to have led to a large increase in the
amount of toxins reported by households and to a decrease in median
house prices.90 Yet while evidence indicates that environmental and public
interest groups make significant use of TRI data to pressure facilities, in-
84 Christopher S Decker, Donald A Nielsen & Roger P Sindt, Residential Property Values
and Community Right-to-Know Laws: Has the Toxics Release Inventory Had an Im-
pact? (2005) 36:1 Growth and Change 113.
85 Felix Oberholzer-Gee & Miki Mitsunari, Information Regulation: Do the Victims of Ex-
ternalities Pay Attention? (2006) 30:2 Journal of Regulatory Economics 141.
86 Brd Gleeson Hanna, House Values, Incomes, and Industrial Pollution (2007) 54:1
Journal of Environmental Economics and Management 100.
87 Linda TM Bui & Christopher J Mayer, Regulation and Capitalization of Environmen-
tal Amenities: Evidence from the Toxic Release Inventory in Massachusetts (2003)
85:3 The Review of Economics and Statistics 693.
88 Kraft et al, supra note 3. Kraft et al consider correlations between multiple resource, po-
litical, and policy variables, finding that [l]iberal states with dense environmental
groups, robust regulations, and innovative pollution prevention policies led the way in
fostering industrial environmental performance (ibid at 117). The authors posit that
environmental group membership is part of a principal-agent path analysis in which
the interests of a more liberal state citizenry are pursued by stronger environmental
groups and more progressive environmental agencies which together pressure or en-
courage improved environmental performance by industry (ibid at 115). It should be
noted, however, that in qualitative analysis by the authors, very few officials reported
exerting pressure on businesses to improve performance (ibid at 186).
89 Hamilton, supra note 5 at 112.
90 Nicholas J Sanders, Toxic Assets: How the Housing Market Responds to Environmen-
tal Information Shocks (2012) [unpublished]. Because the shock was a discrete event
and related only to information, the change was more likely to be independent of other
confounding variables related to variation in environmental quality (ibid at 3).
30 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
form affected residents, and lobby for regulatory changes,91 among ordi-
nary citizens not already engaged with relevant issues, the TRI appears to
figure much less prominently. A survey by Atlas found that very small
percentages of respondents knew of the TRI or TRI facilities, and that
those who were familiar with relevant information had not come by it as a
result of interaction with the inventory. As well, when given TRI infor-
mation, respondents did little with it and did not take action.92 If general-
izable, these findings would suggest that the TRI is a source that those
who are already engaged with environmental issues turn to or discover,
rather than a spur to those who are not.
Numerous researchers concerned with issues of environmental equity
or environmental racism have employed TRI data to illuminate the geo-
graphic relationship between variables such as race or income and pollu-
tion levels. Significant correlations between release patterns and race or
class have been demonstrated in numerous jurisdictions or geographical
regions.93 Various studies have parsed interactions between environmen-
91 For an overview of these developments in the United States, see Hamilton, supra note 5
at 23341. For example, the non-profit group Environmental Defense developed a web-
site that allows users to search by zip code to find the largest polluters in their commu-
nity (US, Environmental Protection Agency, Office of Environmental Information, How
Are the Toxics Release Inventory Data Used?: Government, Business, Academic and Cit-
izen Uses (Washington, DC: Environmental Protection Agency, 2003) [EPA, TRI Use]).
In Canada, groups such as the Canadian Institute for Environmental Law and Policy
and Great Lakes United have used NPRI data as a key part of broader campaigns on
pollution awareness.
92 Mark Atlas, TRI to Communicate: Public Knowledge of the Federal Toxics Release In-
ventory (2007) 88:2 Social Science Quarterly 555.
93 See e.g. Seema Arora & Timothy N Cason, Do Community Characteristics Influence
Environmental Outcomes? Evidence from the Toxics Release Inventory (1999) 65:4
Southern Economic Journal 691 (southeastern United States); Catherine M Neumann,
Debra L Forman & Joan E Rothlein, Hazard Screening of Chemical Releases and En-
vironmental Equity Analysis of Populations Proximate to Toxic Release Inventory Fa-
cilities in Oregon (1998) 106:4 Environmental Health Perspectives 217 (Oregon); Jer-
emy L Mennis & Lisa Jordan, The Distribution of Environmental Equity: Exploring
Spatial Nonstationarity in Multivariate Models of Air Toxic Releases (2005) 95:2 An-
nals of the Association of American Geographers 249 (New Jersey); Liam Downey, En-
vironmental Injustice: Is Race or Income a Better Predictor? (1998) 79:4 Social Science
Quarterly 766 (Michigan); Susan A Perlin, Ken Sexton & David WS Wong, An Exami-
nation of Race and Poverty for Populations Living near Industrial Sources of Air Pollu-
tion (1999) 9:1 Journal of Exposure Analysis and Environmental Epidemiology 29 (the
West Virginia Kanawha Valley, the Baton RougeNew Orleans corridor, and the great-
er Baltimore metropolitan area); Troy D Abel, Unjust Riskscapes and Skewed Political
Landscapes: The Evolving Science of Environmental Injustice (Paper delivered at the
Annual Meetings of the American Political Science Association, 2831 August 2003),
[unpublished] (St Louis and Milwaukee); Eric J Krieg, Race and Environmental Jus-
tice in Buffalo, NY: A ZIP Code and Historical Analysis of Ecological Hazards (2005)
18:3 Society and Natural Resources 199 (Buffalo, New York); and James L Sadd et al,
31
INFORMATION DISCLOSURE, SYSTEMS OF POWER, AND THE NPRI
tal justice variables94 or developed more sophisticated measures of risk
beyond direct proximity.95 Using RSEI data (described above), Ash and
Boyce combine indicators of corporate environmental performance and
environmental justice to develop a measure of corporate environmental
justice. Applying this measure to one hundred corporate facilities, they
find that, despite a wide variation in the extent of disproportionate expo-
sures, in a majority of cases minorities and the poor bear an excess bur-
den.96 Campbell, Peck, and Tschudi control for the chicken-and-egg issue
of whether the people or the pollution came first, concluding that the as-
sociation is not driven by racial minorities or lower-income individuals
moving to higher-pollution neighbourhoods to take advantage of reduced
housing costs but, rather more insidiously, by the siting of facilities in al-
ready ethnically-characterized areas.97 Similarly, longitudinal analysis by
Morello-Frosch et al. of the increased toxic burden borne by communities
Every Breath You Take…: The Demographics of Toxic Air Releases in Southern Cali-
fornia (1999) 13:2 Economic Development Quarterly 107 (greater Los Angeles). At the
county level, see Glynis Daniels & Samantha Friedman, Spatial Inequality and the
Distribution of Industrial Toxic Releases: Evidence from the 1990 TRI (1999) 80:2 So-
cial Science Quarterly 244 (finding a positive relation between the proportion of the
population that is black and the level of toxic releases in the air).
94 See e.g. Susan A Perlin, David Wong & Ken Sexton, Residential Proximity to Industri-
al Sources of Air Pollution: Interrelationships among Race, Poverty, and Age (2001)
51:3 Journal of the Air & Waste Management Association 406.
95 See e.g. Daniel R Faber & Eric J Krieg, Unequal Exposure to Ecological Hazards: En-
vironmental Injustices in the Commonwealth of Massachusetts (2002) 110:2 Environ-
mental Health Perspectives Supplements 277 (looking at cumulative exposure); Susan
L Cutter, Michael S Scott & Arleen A Hill, Spatial Variability in Toxicity Indicators
Used to Rank Chemical Risks (2002) 92:3 American Journal Of Public Health 420 (ex-
amining the relation between six indices of exposure); Yongwan Chun, Yushim Kim &
Heather Campbell, Using Bayesian Methods to Control for Spatial Autocorrelation in
Environmental Justice Research: An Illustration Using Toxics Release Inventory Data
for a Sunbelt County (2012) 34:4 Journal of Urban Affairs 419 (employing Bayesian
techniques to account for autocorrelationthe tendency for spatial observations to be
related to other observations located closely to them, hence non-independent once these
locations are consideredand finding that a relationship between facilities and Asian
status observed with regression analysis is explained under Bayesian analysis by the
percentage of the population that is American Indian, population density, and the per-
centage of residents aged 5574); Marilyn M Williams, Health Risks from Point
Sources of Industrial Air Pollution in Jayajit Chakraborty & M Martin Bosman, eds,
Spatial and Environmental Injustice in an American Metropolis: A Study of Tampa
Bay, Florida (Amherst, NY: Cambria Press, 2010) 83 (using the RSEI, discussed above,
to model risk from industrial exposure in a Tampa Bay neighbourhood).
96 Michael Ash & James K Boyce, Measuring Corporate Environmental Justice Perfor-
mance (2011) 18:2 Corporate Social Responsibility and Environmental Management
61.
97 Heather E Campbell, Laura R Peck & Michael K Tschudi, Justice for All? A Cross-
Time Analysis of Toxics Release Inventory Facility Location (2010) 27:1 Review of Poli-
cy Research 1.
32 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
of colour in southern California indicated that facility siting in these
communities, and not market-based minority move-in, underpinned the
observed disparity.98 Using the NPRI to examine the situation in Ontario,
Jerrett et al. found that manufacturing employment, urbanization varia-
bles, dwelling value, and household income were all significantly related
to pollution emissions.99 Surprisingly, income level was positively corre-
lated with pollution. The authors suggested a development model that ac-
counts for this in which higher wages act as compensation for the social
costs of higher pollution. Miranda, Keating, and Edwards considered in-
equities resulting from changes to the TRI itself and concluded that the
decision by the EPA in 2006 to raise the threshold reporting requirements
for certain facilities had a disproportionate informational impact on mi-
nority and low-income communities.100 Analysis can also bring to light
previously unrecognized or unconfirmed patterns of impact. Work by
Hendryx and Fedorko, for example, indicated that increased releases were
associated with increased mortality in rural as well as urban popula-
tions.101
Finally, officials, managers, and academics have utilized TRI and
NPRI data to measure, inform, and improve other regulatory, governmen-
tal, or managerial efforts. A study by the EPA revealed that federal, state,
and local governments use TRI data to prioritize enforcement and allocate
resources, while regulators look to the TRI when setting permit limits, as-
sessing compliance, and targeting facilities for enforcement.102 Environ-
ment Canada has made use of the NPRI to identify pollution priorities
and develop targeted regulations.103 Olewiler and Dawson used NPRI da-
ta to examine the toxic intensity of various Canadian industries (calculat-
ed by normalizing emissions across levels of employment and value of
output and weighting by relative toxicity of substance) in order to better
98 Rachel Morello-Frosch et al, Environmental Justice and Regional Inequality in South-
ern California: Implications for Future Research (2002) 110:2 Environmental Health
Perspectives Supplements 149.
99 M Jerrett et al, Environmental Equity in Canada: An Empirical Investigation into the
Income distribution of pollution in Ontario (1997) 29:10 Environment and Planning A
1777.
100 Marie Lynn Miranda, Martha H Keating & Sharon E Edwards, Environmental Justice
Implications of Reduced Reporting Requirements of the Toxics Release Inventory Bur-
den Reduction Rule (2008) 42:15 Environmental Science & Technology 5407.
101 Michael Hendryx & Evan Fedorko, The Relationship between Toxics Release Invento-
ry Discharges and Mortality Rates in Rural and Urban Areas of the United States
(2011) 27:4 The Journal of Rural Health 358.
102 EPA, TRI Use, supra note 91.
103 NPRI database, supra note 22.
33
INFORMATION DISCLOSURE, SYSTEMS OF POWER, AND THE NPRI
inform regulatory efforts. 104 Kraft, Stephan, and Abel concluded that,
while the primary impetus behind chemical management decisions is not
community pressure but concern over regulatory compliance and poten-
tial financial liability, by increasing industrys awareness of its chemical
releases and thus facilitating responses to changing public expectations,
the TRI has played a role in industrys efforts to reduce emissions.105 TRI
data has formed the basis for considerable research on the relationship
between a range of other firm or facility characteristics and environmen-
tal performance (size, ownership structure, profitability, and environmen-
tal expertise and commitment, for example).106 Finally, it should be rec-
ognized that a vast body of research has made use of the expansive TRI
and NPRI datasets to assay the health and epidemiological impacts of in-
dustrial pollution.107
C. Freedom of Information, Democracy, and the Political Economy
I now examine the underlying social and institutional forces that
shape the NPRI as regulatory policy. Epistemologically, the determina-
104 Nancy Olewiler & Kelli Dawson, Analysis of National Pollutant Release Inventory Da-
ta on Toxic Emissions by Industry (1998) [unpublished, working paper prepared for
the Technical Committee on Business Taxation].
105 More accurately, it has played a role in the decisions of some facilities. At the facility
level, Kraft et al (supra note 3) find a wide range of responsiveness to the TRI, including
some counterintuitive results. For instance, high-performing facilities communicate less
about their environmental performance with other actors than do low-performing ones
(ibid at 171). Low performers appear to value the TRI program more and be more com-
mitted to improving their environmental record. The researchers suspect that this may
be because high performers already made their significant environmental improve-
ments earlier in the operation of the program (ibid at 137, 171).
106 See e.g. Kraft et al, supra note 3 at 11977; Harland Prechel & Lu Zheng, Corporate
Characteristics, Political Embeddedness and Environmental Pollution by Large U.S.
Corporations (2012) 90:3 Social Forces 947; Natalia Ortiz-de-Mandojana et al, The Ef-
fect of Director Interlocks on Firms Adoption of Proactive Environmental Strategies
(2012) 20:2 Corporate Governance 164; Jeffrey L Decker & Terrance Jalbert, Financial
Performance as It Relates to Pollution Control: An Empirical Analysis (2010) 3:1 In-
ternational Business & Economics Research Journal 67; Neil Gunningham, Robert A
Kagan & Dorothy Thornton, Shades of Green: Business, Regulation, and Environment
(Stanford: Stanford University Press, 2003); Magali Delmas, Maria J Montes-Sancho &
Jay P Shimshack, Information Disclosure Policies: Evidence from the Electricity In-
dustry (2010) 48:2 Economic Inquiry 483; Aseem Prakash, Greening the Firm: The Pol-
itics of Corporate Environmentalism (Cambridge, UK: Cambridge University Press,
2000); Susan L Santos, Vincent T Covello & David B McCallum, Industry Response to
SARA Title III: Pollution Prevention, Risk Reduction, and Risk Communication (1996)
16:1 Risk Analysis 57.
107 Such work in fact makes up the great bulk of the research that utilizes pollution inven-
tory data. Regardless of the ultimate effectiveness of pollution inventories in terms of
pollution reduction, their immense value as research tools is beyond doubt.
34 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
tions of the regulatory problem and regulatory response are here viewed
as constitutive acts in themselvesones not reducible to a simple task of
objectively pointing out a regulatory problem we find lying in our midst
and the natural solutions that present themselves. Rather, they are part
of a process of social constructionof creating meaningand thereby of
constituting a broader social world via the flow of power though systems
of discourse (systems of power as expressed through language).108 Flesh-
ing out an understanding of the interacting, and sometimes clashing, so-
cial frames from which the regulatory problem and agenda emerge there-
fore requires an analysis of the ideological, material, and institutional
contexts of the relevant governmental, social, and institutional actors.
1. Democracy and Pollution Inventories in Theory and Practice
The shift in the power relations of governance that lies at the ideologi-
cal heart of the NPRI may be conceptualized in various ways. On the one
hand, freedom and transparency of information ostensibly link to in-
creased accountability within an existing democratic structure: the exist-
ence of information coupled with its accessibility serve to rebalance power
in favour of citizens and civil society over powerful economic actors and
governments. Depending on the extent to which the various interests of
the different actors converge, the resulting interplay may be, to differing
degrees, cooperative or confrontational. Either way, however, the underly-
ing view of society is that of a pluralist one, in which regulation is served
(and to some extent defined) through the interchange of the various forces
that together constitute the society as a whole.109 Government becomes
decentred, removed from prominence, as the regulator, regulatee, and
regulatory beneficiary alike become active participants in the regulatory
processthe primary role of the regulator now being merely to guarantee
the minimum flow of information necessary for local self-governance.110
However, this construal of new governance regulatory regimens as fur-
thering participatory democracy is in tension with their location within a
108 See e.g. Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings,
19721977, ed by Colin Gordon, translated by Colin Gordon et al (New York: Pantheon
Books, 1980), ch 6; Michael Howlett & M Ramesh, Studying Public Policy: Policy Cycles
and Policy Subsystems (Toronto: Oxford University Press, 1995) at 10417.
109 The establishment through the democratic process of the TRI and NPRI as a response
to public demand for information also presents itself as a self-referential legitimization
of this pluralist view.
110 See Karkkainen, supra note 53 at 295.
35
INFORMATION DISCLOSURE, SYSTEMS OF POWER, AND THE NPRI
socio-economic framework that contains inherent impediments to mean-
ingful democratic engagement.111
The more limited role of the state under the NPRI and the transfer of
power to the play of market forces are consistent with a neoliberal ap-
proach to governance.112 The conception of the state as a potential locus of
collective action furthering the social goodaction that may mean directly
limiting the socially-detrimental behaviour of powerful private interests
is replaced with a responsibilized model in which the individual bears
primary responsibility for her own well-being.113 To the extent that struc-
tural relations remain unchanged, inequalities of cultural, material, and
political power may actually be exacerbated by this devolution of state
power.114 Rather than enhancing participatory democracy (broadly con-
ceived), the state abdicates its responsibility to continue to be both the in-
strument and the guarantor of democratic action in light of structural in-
equality. Similarly, arguments for informational inventories that are
couched in economic terms can also reinforce status quo power relation-
ships. Here, inventories are seen as empowering individual stakeholders
111 To be clear, this is not to paint a deterministic picture in which extant relations of pow-
er necessarily overwhelm any and all efforts to resist. Quite to the contrary, the process
is in fact an ongoing one of lived experience and dialectical social contestation. The ac-
tual capacity for democratic engagement will likely vary considerably by context, and
while the potential to enhance that capacity may be structuredor structuratedby
social conditions, it is not wholly determined by them. In every case, the particulars
matter.
112 The markets envisaged may be the capital markets, where their reactions to pollution
information are felt in stock prices, or the influence of the proverbial marketplace of
ideas, through which information prompts social action and negotiation around pollu-
tant releases.
113 The responsibilized include not only the traditional beneficiaries of social regulation
the residents of polluted neighbourhoods or the broader public affected by ubiquitous
environmental toxinsbut also the traditional regulatee. Arguments for benchmark-
ing, against both past performance and against competitors, exhibit this emphasis on
the importance of self-initiated improvement.
It might be noted, however, that actually-existing neoliberalism differs notably from
its rhetorical construction, typically retaining large-scale direct and indirect state sup-
port for market actors (primarily large corporations), usually under the guise of main-
taining a business-friendly environment. While those most in need of state support find
it now removed, the corporate nanny state tends to endure. See e.g. David Harvey, A
Brief History of Neoliberalism (Oxford: Oxford University Press, 2005) at 71.
114 Responsibilization and the decentring of governance can produce inequities that run in
the other direction. For example, a particular effective community action might dispro-
portionately target a firm that, comparatively speaking, is not a poor performer. Once
governance is decentred, a myriad of factors external to the regulatory process come in-
to play which are no longer subject to the standardizing and arbitrating influence of the
state (media coverage, visibility of pollution, and the profile of affected residents, among
others).
36 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
by improving informational efficiency and by reducing the transaction
costs of bargaining between stakeholders around pollution-related deci-
sions. Fundamental inequalities of bargaining power and position are
taken for granted, however, and may even be deepened as pollution comes
to be more efficiently located in those areas where residents (sufficiently
deprived of social, economic, and political capital) are most willing to ac-
cept it.
This same double-edged sword is apparent in the parallel decentring
of the role of experts under informational regulation. No longer the exclu-
sive purview of experts, standards come to be determined by what the
community will accept. While this can provide for a flexible, localized re-
sponse that is unbounded by de facto regulatory ceilings, in reality, the
level of pollution that people are willing to live with reflects the existing
distribution of political, social, and economic power.115 Achieving a more
fundamentally democratic regulatory outcome may therefore involve the
reconfiguration of these forces through a form of collective action that
goes beyond the kind of localized self-governance that pollutant invento-
ries (at least in the eyes of some advocates) seek to promote. The emanci-
patory capacity of the pollutant inventory regimen likely depends on the
extent it is able to catalyzerather than usurpbroader-based democrat-
ic initiatives, such that a dialectical process is set in motion fomenting the
ongoing progressive engagement of citizen, regulator, and regulatee.
The inherent ambiguity of an informational regulatory approach is ex-
emplified in the fact that it is through these inventories that the picture of
disparate geographic environmental impact is resolved (literally so, given
inventories incorporation of mapping technology). As discussed above,
pollution inventories have been instrumental in the development of the
environmental justice movement in the United States and, to a lesser ex-
tent, in Canada. While various communities have made use of TRI data
when mobilizing against polluters in their midst, research also suggests
that residents of wealthier neighbourhoods are able to employ the infor-
mation more effectively than are inhabitants of poorer locales. For exam-
ple, Shapiro uses TRI data to calculate risk scores for neighbourhoods
across the United States, finding that better-educated neighbourhoods
appear to be more able than lesser-educated ones to access and utilize TRI
115 Whereas the setting of environmental standards may often be a somewhat arbitrary
process subject to political and social influences, some insulation from at least the more
overt of such pressures is provided through links to research and the scientific exer-
ciseat least in comparison to the negotiated process under inventory systems of gov-
ernance. The question then arises: if experts are irrelevant, then why have them at all?
37
INFORMATION DISCLOSURE, SYSTEMS OF POWER, AND THE NPRI
data to pressure for local emissions reductions.116 The TRI therefore might
function to exacerbate environmental disparities, as residents of wealthier
neighbourhoods are able to use information to displace pollution to poorer
ones. This differential could be intensified by the observed potential effect
of TRI data on housing prices, setting up a vicious circle in which further-
polluting industries move into already-disadvantaged neighbourhoods to
take advantage of diminished financial and social capital. The socioeco-
nomic dynamic established is no doubt complex. Whether the TRI or the
NPRI amplifies or reduces environmental disparity likely depends on
whether there is an already-established community movement (or the po-
tential for one) and on the degree of existing social solidarity. Where the
level of social disorganization is high and mobilization is difficult to
achieve, the existence of the inventory may intensify rather than amelio-
rate disparities.117 What can be generally concluded, however, is that a
view of pollution inventories as inherently enhancing democracy and civic
engagement to the end of net social benefit is an idealization that neglects
the broader context of the political economy in which these mechanisms
are seated.
Locating the democratic operation of the TRI and the NPRI within the
reality of the political economy requires considering that, while the inven-
tories ensuing efficacy in actually reducing emissions has been welcomed
by government and regulators, it did not feature prominently in the in-
ventories founding rationales, which were focused only on the perceived
public demand for access to information. In reality, the demand extended
beyond a mere desire for access to information regarding discharges of
toxins; there was also a demand for the limitingor eliminatingof those
discharges. The focus of public concern was not merely on the right to
know about exposure, but extended to the right to be free from exposure.
This is not to say that once enacted, a program remains bound by the pa-
rameters of its conceptual genesis, nor that ongoing rolling best practices
may not in fact ratchet emissions lower. It is rather to highlight once
again the open-ended duality inherent within the new governance ap-
proach: while the pollution inventory may be an apparatus with the po-
tential to advance democratic engagement, to the extent that it displaces
rather than supplements more conventional regulatory approaches, it
116 Marc D Shapiro, Equity and Information: Information Regulation, Environmental Jus-
tice, and Risks from Toxic Chemicals (2005) 24:2 Journal of Policy Analysis and Man-
agement 373.
117 Direct empirical investigation of this hypothesis is called for here.
38 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
may also serve to reinforce the material and economic limitations on the
democratic exercise of public will.118
The professed efficacy of pollution inventories in light of limited regu-
latory resources has in fact been advanced as a significant point in their
favour.119 Yet as with conventional regulatory enforcement, a weighing of
public benefits against private costs is implicit within the NPRI, which
exempts small operations from reporting requirements.120 The economic
burden on smaller facilities is seen as outweighing the publics right to in-
formation. This absolute exemption stands at odds with any attempt to
seek a negotiated level of pollution. The harm from an exempt facilitys
emissions might be orders of magnitude beyond all the benefits that flow
from its operations, yet no facilitated intervention will be forthcoming.121
In fact, for the very reason that reporting is not required, no such assess-
ment of net social utility can be undertaken.122
118 Conventional regulation is also grounded in economic reality, of course, but here it ar-
guably seeks to realign forces more directly (if usually only slightly), setting direct lim-
its on emissions concentrations, for example. Informational approaches do not seek
such direct intervention, but rather aim to clarify the situation as it is. This may (or
may not) catalyze other forces to produce change, but any such process is removed from
the direct action of the regulatory regime. Of course, to the extent that conventional
regulation is inefficacious in the face of power, setting inadequate standards or simply
not enforcing what requirements are in place while nonetheless appearing to take ac-
tion, it can also reinforce existing power imbalances.
In reality, the choice between non-regulatory information disclosure policies and
conventional regulation is not mutually exclusive. Kraft et al (supra note 3 at 196) con-
clude that the optimum approach is a hybridized one. While this may be true, incorpo-
rating an analysis of power into regulatory design and enforcement highlights the need
to be continually alive to the possibility that information-based measures will displace
conventional ones to the detriment of overall regulation.
119 See e.g. OLeary et al, supra note 67. Scarcity of government resources has been an on-
going refrain for self-regulation or hybrid regulation models (see e.g. Ayres &
Braithwaite, supra note 11), something that has opened them to the criticism that they
are, to varying extents, accommodations to prevailing ideological and political economic
conditions (see e.g. Gary Slapper & Steve Tombs, Corporate Crime (Essex: Pearson Ed-
ucation, 1999) at 178).
120 Facilities with fewer than 20,000 person-hours of staffing do not have to report, regard-
less of the amount of noxious pollution they release (Notice 2011, supra note 15).
121 This despite the fact that CEPA (supra note 7, s 2) indicates that economic consider-
ations are not to be used as a basis for limiting action to protect the environment
or human health.
122 There is evidence that, for a variety of reasons including more marginal profitability,
small facilities produce proportionally more pollution than do larger ones. Volokh (su-
pra note 57 at 836) advances that for the TRI this problem is worsened by the fact that
it is use level and not release level that determines if a facility meets the reporting
threshold.
INFORMATION DISCLOSURE, SYSTEMS OF POWER, AND THE NPRI
39
2. Compliance, Deterrence, and Enforcement
Aside from the rubric of new governance, we can also locate public pol-
lution inventories within related typological schemes. The oft-cited com-
pliance versus deterrence distinction holds that compliance systems focus
on inducing conformity with the law ex ante and without the need to de-
tect and punish, whereas deterrence systems focus ex post on detection
and punishment to deter future offences (specifically and generally).123 To
the extent that the NPRI and other pollution inventories strive to encour-
age voluntary action on the part of industry and rely on the propagation of
information as a corrective, they can be viewed as structurally embodying
a compliance-based policy approach.124 Once again, the political economy
becomes a salient factor.
Deterrence advocates contend that the rise of compliance-based regi-
mens derives from the economic power of corporations to shape regulation
in their own interests. Snider argues that cooperative approaches have
become popular in both theory and practice because they recognize and
legitimate the existing relations of power, the status quo under which
regulatory forces are outmatched by the powerful corporate sector.125
This power disparity comes to be enshrined in official policy, a self-
defeating acquiescence to the very corporate dominance that creates regu-
latory ineffectiveness in the first place. Compliance models are a reflec-
tion of this power imbalance as a fundamental and acceptable constraint
on the states ability to regulate corporate crime.126 In fact, compliance
proponents themselves sometimes couch their justifications in terms of
the economic role of corporations. Compliance advocates Kagan and
Scholz, for example, expound on how indiscriminate reliance on … a le-
galistic enforcement strategy can jeopardize the [regulatory] agencys le-
gal mandate, its funding, and its very existence.127 Most compliance sup-
123 See e.g. Albert J Reiss, Jr, Selecting Strategies of Social Control over Organizational
Life in Keith Hawkins & John M Thomas, eds, Enforcing Regulation (Boston: Kluwer-
Nijhoff, 1984) 23. Under specific deterrence, the aim of punishment is to prevent the of-
fender in question from reoffending. Under general deterrence, the intent is for the pun-
ishment to serve as an example to others, so discouraging future offending generally.
124 And in addressing problems that are often ongoing and predictable, where costs can be
externalized, compliance advocates would argue that the NPRI is structurally well-
suited to the problem at hand (ibid at 25).
125 Laureen Snider, Cooperative Models and Corporate Crime: Panacea or Cop-Out? in
Neil Shover & John Paul Wright, eds, Crimes of Privilege: Readings in White-Collar
Crime (New York: Oxford University Press, 2001) 419 at 420.
126 Ibid at 429.
127 Robert A Kagan & John T Scholz, The Criminology of the Corporation and Regulatory
Enforcement Strategies in Keith Hawkins & John Thomas, eds, Enforcing Regulation
(Boston: Kluwer-Nijhoff, 1984) 67 at 74.
40 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
porters, however, do recognize a role for deterrence punishments in the
case of intransigence or laggardly behaviour. Indeed, some approaches
such as Ayres and Braithwaites system of responsive regulation incor-
porate a role for serious punishment as a benign big gun128 that sits atop
a pyramid of progressively severe regulatory responses. And while propo-
nents advance new governance techniques on the grounds that they im-
prove informational and resource efficiency, new governance theorists al-
so stipulate robust regulatory oversight as a precondition to the regimes
effective functioning.129 Nonetheless, under new governance, power is de-
volved to the regulatee to determine how to ensure concordance with reg-
ulatory objectives. The critical issue is the extent to which this risks the
amplification of an already-existing power imbalance between regulator
and regulatee. In eschewing set standards altogether, the pollution inven-
tory approach presents a prima facie concern.
Apprehensions around disparities between regulator and regulatee
become heightened when we look to the actual enforcement of the report-
ing requirements, examining the means by which the regulator seeks to
ensure that facilities are reporting and otherwise conforming to inventory
requirements. Whereas the NPRI represents a compliance approach to
regulation, the regulation of the regime itself is grounded in deterrence
methods with stipulated hard penalties for non-reporting.130 Ultimately,
then, the system is tied to an enforcement mechanism that does not rely
on new governance principles. Enforcement analysis, however, points
once again to power dynamics at play. Environment Canadas approach to
enforcement appears to be similar to that of the EPA, which for the TRI
undertakes only minimal verification of emissions reports (inspecting ap-
proximately 3 per cent of firms in a given year). As well, estimates and
transfers substitute for actual measurements of emissions, and non-
compliance has been widespread (arising in up to one-third of facilities,
according to one claim cited by Wolf).131 Environment Canadas approach
128 Ayres & Braithwaite, supra note 11 at 4041.
129 See e.g. Bradley C Karkkainen, Adaptive Ecosystem Management and Regulatory
Penalty Defaults: Toward a Bounded Pragmatism (2003) 87:4 Minn L Rev 943; Cristie
Ford, Principles-Based Securities Regulation in the Wake of the Global Financial Cri-
sis (2010) 55:2 McGill LJ 257.
130 CEPA, supra note 7, s 272.
131 Small Release Exemption Could Harm Public Health, Witnesses Tell Agency (1994) 24
Environment Reporter (BNA) 1854, cited in Sidney M Wolf, Fear and Loathing about
the Public Right to Know: The Surprising Success of the Emergency Planning and
Community Right-to-Know Act (1996) 11:2 Journal of Land Use & Environmental Law
217 at 258, n 237.
41
INFORMATION DISCLOSURE, SYSTEMS OF POWER, AND THE NPRI
to the NPRI appears to be similar.132 Further, no individuals or corpora-
tions have ever been prosecuted for failing to report to the NPRI. Thus, it
would seem that the risks inherent to new governance regulation are,
ironically, intensified by the enforcement failure of a deterrence-based
system.
Returning to our consideration of the mining sector, it could be argued
that by not requiring mining companies to report at all, Environment
Canada had implemented a policy of complete non-enforcement. The
adoption of this course despite the clear and unambiguous language of the
Gazette requirements and the deliberate removal of the prior exemption
for mining suggests that the (non-)enforcement of the NPRI is, in this ar-
ea at least, heavily influenced by forces at play in the political economy,
and that Environment Canada is subject to regulatory capturebeholden
to the very interests it is charged with overseeing. Viewed as a policy de-
velopment, we see a process of outside policy initiation that meets inter-
nal resistance.133 ENGOs and community groups put pressure on the po-
litical system for changefirst by demanding a reporting mechanism in
general and then by advocating for the inclusion of mining activity within
itforcing a response at the political level. But inside the system there is
resistance, either politically or bureaucratically or both, leading to the de
facto neutralization of the changesa process of mock change. An elabo-
rate mechanism is in place to increase public visibility of pollution releas-
es, yet a significant proportion of this pollution is exempt. Then, when this
exemption is explicitly removed, the actual practice is not to require re-
porting anyway. Under these circumstances, the NPRI arguably begins to
serve a function opposite to its lauded goal, obscuring the true extent of
toxin release in Canada while professing to illuminate it. Related to the
general pattern of mock change is a process of mock consultation. Envi-
ronment Canada has taken the position that reporting on a substance will
only be made mandatory in practice with the consent of all parties to the
working group. Whereas this pays lip service to notions of inclusion and
pluralist democracy, in practice it gives a veto power to the regulated in-
dustry, whose representatives in the working group obviously have a
powerful material interest in not consenting to this requirement.134
132 For example, while Environment Canada checks firms reported data for consistency, it
does not perform inspections in the field (Harrison & Antweiler, Environmental Regula-
tion, supra note 70 at 4).
133 See Howlett & Ramesh, supra note 108 at 12243; Roger Cobb, Jennie-Keith Ross &
Marc Howard Ross, Agenda Building as a Comparative Political Process (1976) 70:1
American Political Science Review 126 at 127.
134 In this light, the relationship between mining and the NPRI might be seen as embody-
ing elements of Pierre Bourdieus concept of symbolic power: a power of constituting
42 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
Conclusion: Reforming the NPRI
The failings of the NPRI should not be taken as an unqualified rejec-
tion of the inventory and the approach it exemplifies. The NPRI repre-
sents a true regulatory innovation in Canada.135 It is a shift away from
purely command-and-control based models, for which effective regulation
means micromanaging precise limits at the end of the pipe, to a more sys-
tems-based approach that relies on direct engagement with the issue
across a range of otherwise-adversarial groups and interests. Further,
positive environmental efforts have come about as a result of the pollution
inventory approach, and, while the evidence in Canada is less clear, it
seems likely that in the United States the NPRIs counterpart, the TRI,
has played a role in the significant reported reduction in toxics releases
that has taken place since its establishment.
However, the inadequacies of the NPRI do reveal the failure of a new
governance approach rooted in an ideology of the emancipatory power of
information to engage structural and institutional obstaclesas is partic-
ularly evident in the case of mining. In neglecting an analysis of social re-
lations of power in favour of an idealized pluralism, the new governance
perspective tends to an overly optimistic and idealized view of the poten-
tial for informationor revelationto propel change. This position is
supported by research indicating that, contrary to the logic of new gov-
ernance theory, any positive impact from the pollution inventory does not
derive primarily from the empowerment of civil society. The analysis of
Kraft, Stephan, and Abelthe most comprehensive study to date of the
mechanisms by which information disclosure affects decision-making
within corporations, communities, and regulatory agenciessuggests
that, when effective, inventory reporting impacts corporate and regulatory
action directly and not through the mediated action of other stakehold-
the given through utterances, of making people see and believe, of confirming or trans-
forming the vision of the world and, thereby, … the world itself. … [It] is a power that
can be exercised only if it is recognized, that is, misrecognized as arbitrary (Pierre
Bourdieu, Language and Symbolic Power, ed by John B Thompson, translated by Gino
Raymond & Matthew Adamson (Cambridge: Polity Press, 1991) at 170). In presenting
the comfortingand mollifyingillusion that mining falls under the dominion of the
NPRI, industry and government legitimate the destructive components of mining activ-
ity. Thus the perceivedor misrecognizedsocial and economic value of mining, and
the legitimacy of Environment Canada as a regulatory agency, enable the NPRI to
function as a form of symbolic violence exercised by the actors who stand behind it.
However, the subordinated have the ability to withdraw their consent to the NPRI as
symbolic violence, appropriating the NPRI to genuinely advance their own interests.
See Pierre Bourdieu & Loc JD Wacquant, An Invitation to Reflexive Sociology (Chicago:
University of Chicago Press, 1992) at 167.
135 This was true at the time of its enactment and continues to be so today. The NPRI re-
mains the only registry of its kind in Canada.
43
INFORMATION DISCLOSURE, SYSTEMS OF POWER, AND THE NPRI
ers.136 The researchers find that in the United States in the period stud-
ied, public interest in the pollution inventory was low, and that the states
that saw the greatest improvements in industrial environmental perfor-
mance were those that put in place integrated pollution prevention poli-
cies, rather than those that prioritized informing the public of emissions
levels.137 Kraft, Stephan, and Abel conclude that the influence of the TRI
in lowering emissions likely results from its establishment alongside a
framework of traditional command-and-control regulation.138 Such an as-
sessment dovetails with the analysis of power relations presented here,
which would see a tendency for the pollution inventory approach, while
cast as an alternative to conventional regulation, to be exploited by capital
and industry to the end of weakening enforcement generally and margin-
alizing those seeking to significantly restrain corporate power. By either
analysis, the more robust and well-enforced the accompanying command-
and-control regime, the more effective the inventory itself is likely to
be.139
In seeking to reform the NPRI, we must address the etiology of its in-
stitutional failings: the implications of the market assumptions of the
NPRI as played out against the neoliberal political economy and the re-
sultant potential for regulatory capture. At the same time, the work of
Kraft, Stephan, and Abel sounds a strong note against over-
136 Kraft et al, supra note 3 at 13645, 175, 18586.
137 Ibid at 113. See Omri Ben-Shahar & Carl E Schneider, The Failure of Mandated Dis-
closure ((2011) 159:3 U Pa L Rev 647 at 679729) for an analysis of the many practical
issues that inhibit the uptake of mandatorily disclosed information by the public.
138 Kraft et al, supra note 3. The availability of TRI data allows regulatory officials to bet-
ter enforce and make better use of existing conventional regulation by, for example,
making comparisons of emissions across similar facilities, checking facility emissions
against permit records, learning about local pollution problems, and setting environ-
mental priorities (ibid at 135, 18586). In contrast to a new governance analysis, how-
ever, relatively few [officials] reported exerting pressures on business, assisting citi-
zens in negotiations with facilities, or even contacting businesses or the media (ibid at
186). At the corporate level, liability and regulatory compliance were the primary con-
cerns related to chemical management, although environmental performance was a
strong third. Those (few) firms that did utilize the TRI directly were typically the worst
performers; high performers had generally made improvements early in the operation
of the program (ibid at 17273). Interaction between firms and the community was typ-
ically low, respondents were divided over the importance of community relations, and
the majority of firms received little media coverage (ibid at 13645, 175). Despite these
findings, the researchers believe that there remains considerable potential for the TRI
to further community engagement with firms and regulators to the benefit of environ-
mental performance.
139 Shapiro (supra note 116 at 391) also observed that reductions in emission following the
implementation of the TRI were greater in states that had strong conventional envi-
ronmental protection laws than in those that did not.
44 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
generalization, be it positive or negative, regarding the efficacy of the
TRI.140 The dynamics within and between corporations, regulators, and
communities are highly complex and subject to significant variation. In-
troducing an analysis of power relations likely deepens this complexity
further, and an a priori generalization to the effect that the NPRI is whol-
ly enjoined by power in the service of its own ends would be erroneous.
Hence, in developing recommendations for the improvement of the NPRI,
it is important both to think in terms of the big picture and to look to the
particularities of the actual operation of the inventory in a range of con-
textsto the dialectical social process as it is instantiated. With this in
mind, I offer below some preliminary recommendations for how the NPRI
might be made more effective.
One change that could help rebalance forces in favour of active public
power and reconstitute the program as a more democratic and effective
tool would be the development of mechanisms to actively promote NPRI
data. Supporting civil society in its efforts to trumpet the leaders and
blacklist the laggards requires the availability of more aggressive publici-
ty measures. In the 1990s, the British Columbia Ministry of Environment
instituted a policy of publicly listing firms that repeatedly failed to comply
with provincial environmental laws. A study of this program found that it
had a greater effect on industry emissions and compliance than did deter-
rence-based penalties (although the authors also concluded that lax en-
forcement and mild penalties likely significantly inhibited the effective-
ness of the latter).141 Applying a similar dirty dozen approach to the
NPRI, in which firms performing significantly outside the industry norm
are subject to negative publicity, might engage community opprobrium in
its own right as well as facilitate the efforts of groups and organizations
already engaged in bringing attention to poor performers. Research that
has been undertaken on corporate adverse publicity and shaming holds
out positive potential in this area.142
Qualification for membership on such a list would have to be carefully
determined. Crude measures such as total discharges would be inappro-
priate given variability in facility size. Instead, a system of standardiza-
tion of emissions levels per unit of production should be instituted. This
140 Kraft et al, supra note 3 at 20102. See also Bui, supra note 65 (demonstrating the role
of conventional regulation in emissions declines as well as the need for particular and
thorough analysis).
141 Jrme Foulon, Paul Lanoie & Benot Laplante, Incentives for Pollution Control: Regu-
lation and(?) or(?) Information (Policy Research Working Paper, World Bank, Devel-
opment Research Group, 1999). This program was abolished in 2001.
142 See e.g. Brent Fisse & John Braithwaite, The Impact of Publicity on Corporate Offend-
ers (Albany: State University of New York Press, 1983).
45
INFORMATION DISCLOSURE, SYSTEMS OF POWER, AND THE NPRI
links to the more general need to improve the depth of information avail-
able on the NPRI, as well as to provide contextualization for what it re-
ports as a means of increasing its meaningfulness.143 A potential downside
of increased stigmatization for the worst performers is the possibility that
it will reduce their willingness to comply. In light of the evidence that the
NPRI is at its most effective when coupled with a conventional regulation,
worst offenders should face increased scrutiny under other command-and-
control legislation, including under the NPRI reporting enforcement pro-
visions of CEPA.
Enhancements to the accessibly and usefulness of the inventory data
would likely prove valuable in furthering community engagement. In ref-
erence to the TRI, Kraft, Stephan, and Abel recommend that the EPA
consider releasing the data in a manner such that trends in facility envi-
ronmental performance over time are readily apparent.144 They also advo-
cate for creative thinking on ways to educate citizens about the database
and how to use it; they view social networking as holding out particular
promise in this regard.145 Foti and Conlon advocate incorporating envi-
ronmental justice concerns directly into the various TRI programs, includ-
ing having an environmental justice point of contact within the Office of
Environmental Information and creating a publicly available environmen-
tal justice screening tool, both of which would also be valuable additions
to the NPRI.146 On a related note, the development of risk analysis data
(analogous to the RSEI) is critical to improving the environmental mean-
ingfulness of NPRI information. Ideally, this information would be inte-
grated with enforcement and compliance figures and made linkable not
only to individual facilities but also to the legal entities that own them.
The ability to group facilities by corporation would allow users to glean a
bigger-picture understanding of the actual organizational actors and their
overall environmental impact.
Research by Lynn and Kartez indicates that effective citizen access to
information depends in part on the efforts of intermediary public interest
groups to bridge individual needs and pollution data.147 Hence, enhancing
the ability of ENGOs and community groups to make use of NPRI data
143 See Karkkainen (supra note 53 at 36170) for detailed recommendations for improve-
ments to the quality and scope of data reporting and presentation in the TRI. Similar
measures could be taken with regard to the NPRI, likely to significant positive effect.
144 Kraft et al, supra note 3 at 190.
145 Ibid at 191.
146 Joseph Foti & Lindsay Conlon, Growing the Grassroots: Integrating Environmental
Justice into the Toxics Release Inventory Program (March 2011), online: Environmen-
tal Council of the States at 1617
147 Lynn & Kartez, supra note 56.
46 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
may have a multiplier effect on wider civic engagement. Making funding
for such groups available as part of the NPRI program could prove fruitful
here. Going further, Environment Canada might consider the direct crea-
tion of quasi-ENGOs, independent of government but largely funded by
it, whose explicit mandate is to promote NPRI data within the broader
community.148 Kraft, Stephan, and Abel point to the role of community
groups under the Superfund program (the U.S. federal governments pro-
gram to clean up uncontrolled hazardous waste sites) and the evidence of
their positive impact on EPA clean-up decisions as a potential model of
citizen engagement.149
In light of the importance of conventional regulation to information
disclosure approaches, as discussed above, expanding the reach of the
NPRI and embedding it in other regulatory measures where a synergistic
effect can result should be a priority. Looking at the impact of the TRI
across American states, Grant finds it to be particularly effective in those
states that have right-to-sue laws that allow for citizen action against
non-compliant actors.150 CEPA contains right-to-sue provisions as well as
other measures designed to enhance public participation, such as the
right to request an investigation into an alleged breach of any provision of
the Act, and the right to bring an environmental protection action in the
event that the response to such an investigation is unreasonable.151 The
cogency of such provisions could be enhanced by an effective NPRI. The
relevance could go beyond CEPA to other legislation, and its data could be
used to set limits under the Fisheries Act, for example, where applications
for effluent release could be required to consider NPRI data for the rele-
vant industry, locality, and broader region. Rather than choose between
the mutually independent approaches of permitting versus reporting, the
two might be combined, with the NPRI integrated into a regulatory pyr-
amid that becomes more effective as the NPRI enhances both the richness
of information available and the number of parties who can engage with
148 The Langley Environmental Partners Society (LEPS), an organization that works to
empower local residents and community groups in watershed stewardship and other lo-
cal environmental issues, is an example of a publicnon-profit partnership that may
serve as an analogue here. While the organization is an independent non-profit society
(and registered charity), LEPS nonetheless receives significant funding and indirect
support from the Township of Langley and is regarded as furthering environmental
protection in a manner that the municipality could not achieve directly through gov-
ernmental action alone. See Langley Environmental Partners Society, online:
149 Kraft et al, supra note 3 at 193.
150 Don Sherman Grant II, Allowing Citizen Participation in Environmental Regulation:
An Empirical Analysis of the Effects of Right-to-Sue and Right-to-Know Provisions on
Industrys Toxic Emissions (1997) 78:4 Social Science Quarterly 859.
151 CEPA, supra note 7, ss 1742.
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INFORMATION DISCLOSURE, SYSTEMS OF POWER, AND THE NPRI
it. The informational imbalance between regulator and regulatee is thus
ameliorated. There are also opportunities to combine the benefits of the
NPRI with other types of non-conventional regulation. Firms that fall be-
low average performance could be required to implement management-
based plans to improve compliance. For ongoing noncompliance or for
more egregious laggards, where the willingness to comply (upon which an
effective management-based system depends) is likely lacking, strict de-
terrence-oriented regulation would then be employed.
A further option for reconfiguring power in the NPRI includes adding
substance to the role of the precautionary principle, which holds that if a
chemical is suspected to be harmful, its use should be prohibited until it is
demonstrated to be safe. The principle is featured in the preamble to
CEPA, yet the operation of the NPRI, which in itself sets no limits on
emissions, is arguably at odds with this idea. Giving teeth to the precau-
tionary principle could be accomplished through a reverse onus procedure,
whereby industrial chemicals of concern are presumed to be reportable
until those producing or releasing them can demonstrate that they are in
fact safe.152 Reporting could also be linked to the mandatory development
of a roadmap to eliminating release of the toxin altogether. As well, mak-
ing the operation of the NPRI consistent with the precautionary principle
would require removing thresholds for reporting, making the release of
any level of listed toxins reportable.
There is a further need to address the power imbalances within the
multi-stakeholder working groups, which lead to industry having a de fac-
to veto power, and which likely explain why only a minuscule portion of
the chemicals known or suspected to be harmful are listed for reporting.
Whereas the system as currently configured represents a formal egalitar-
ianism, a more substantively democratic approach would recognize this
power disparity. One measure would be to increase representation from
more neutral scientific parties (for instance, scientists who have no con-
nection to industry, government, or any of the other sectors represented
in the working group). Looking to process and group dynamic concerns,
breaking up working groups into multiple smaller units containing repre-
sentatives from distinct interests may prove useful in overcoming dead-
lock. In this way, the tendency of groups that start from a position of po-
larization to become more polarized as deliberations commence153 could be
avoided. As well, dividing groups so as initially to separate those who,
152 This could be conceptualized as a kind of environmental regulatory penalty default sys-
tem. See Bradley C Karkkainen, Information-Forcing Environmental Regulation
(2006) 33:3 Fla St UL Rev 861.
153 See Cass R Sunstein, The Law of Group Polarization (2002) 10:2 The Journal of Polit-
ical Philosophy 175 at 176.
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based on the interests they represent, will have a pre-existing tendency to
polarization would allow various representatives to consider matters of
particular relevance to them free of opposing dynamics. Making chemicals
of concern reportable by default could operate at the working group level:
once it can be demonstrated to the satisfaction of the working group that
they are safe, a recommendation would be made that the substance be
delisted. At present, the level of commitment and expertise required to
participate effectively in working groups limits their inclusivity. One pos-
sibility is to establish fora where broader community input can be provid-
ed to the groups themselves. Expanding the inclusivity and reach of the
groups brings the listing process closer to the goal of the iterative feed-
back process embodied in the new governance philosophy.
There is also a need to bring those smaller firms currently exempt
from reporting requirements into the fold. Given that reporting require-
ments present a proportionately greater burden to smaller facilities, it
may be reasonable to combine removing or significantly lowering the ex-
emption for small firms with some level of program support for initial
monitoring, such that low-polluting operations are not overly impacted
yet high-polluters can be identified. The equity issue arising from the
greater ability of large producers to meet reporting requirements could
thus be moderated. Combining these measures with a policy of much
stricter enforcement of reporting should help identify those producers
whose net social utility is significantly negative. Those true laggard firms
not able or willing to improve their performance couldand shouldbe
removed from operation through this process. The importance of pollution
inventories as nested in interconnected regimes of conventional regulation
again comes to the fore here.
Reforms such as these would conserve the advantages of the NPRI
while incorporating factors to address features of the structural and insti-
tutional environment in which it operates. In this way, we can begin to
reconfigure the matrix of forces at work in both the NPRI and the broader
social context in which it functions, leading to a more effective and re-
sponsive multi-sectoral regulatory regime, catalyzed by the revelatory
power of information.
