Mary L. Lyndon

Characterizing the Regulatory and Judicial Setting

We do not usually think of law as a tool; but ideally, that is its role. While law constrains, it also offers opportunities for creative analysis and organization of decision making. A rule or legal principle should distill and express the social considerations that ought to go into a decision, while procedural rules structure participation in law making to maximize fairness and rationality. Legal research materials and methods are tools in another sense. They record what the law is and (again, ideally) provide this information in response to appropriate inquiries. Both environmental law and related legal research are always changing, but today legal research appears to be in an especially rapid state of flux, perhaps signaling a fundamental change in the law itself.

Trade Secrets and Information Access in Environmental Law

Exposure to chemical risks is widespread, as trillions of pounds of chemical substances are released annually. Only a small number have been well characterized for potential toxicity, though many are thought to pose health risks. Secrecy is pervasive in chemicals regulation, in part because agencies have deferred to claims that chemical ingredients are covered by the law of trade secrecy. The resulting deficit of data impedes health and ecological research, distorts market responses and suppresses innovation incentives. This chapter argues that secrecy is out of place in environmental regulation: information that describes environmental externalities is not “trade” or “commercial or financial” information within the meaning of trade secret law and discharging pollutants without sufficient research abandons secrecy entitlements that might otherwise attach. Property law does not legitimate harming third parties or avoiding duties to them; also, secrecy reverses the appropriate relationship between property and resources by hiding social costs and blocking efficient allocation. The better rule would be “no secret exposures,” giving firms the choice to avoid exposures, invest in research to prove that their products are reasonably safe, or resort to the patent system or other legitimate strategies.