Environmental audit privilege, or environmental privilege, in
United States environmental law, is an
evidentiary privilege created under state
statute
A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...
. The privilege protects the results of companies' internal environmental
compliance audits from disclosure at trial, or in
pretrial discovery
Discovery, in the law of common law jurisdictions, is a phase of pretrial procedure in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from other parties. This is by means of methods of discovery such as ...
.
The environmental audit privilege is meant to incentivize companies to evaluate their own compliance with environmental regulations.
Proponents of such laws further argue that it is necessary to encourage such self-evaluations, because regulatory agencies lack the resources to police all the
polluters in their jurisdiction.
Environmental audit privilege statutes have been promoted by the conservative
American Legislative Exchange Council
The American Legislative Exchange Council (ALEC) is a nonprofit organization of conservatism in the United States, conservative state legislature (United States), state legislators and private sector representatives who draft and share Model act, ...
, which circulates a
model statute known as the "Uniform State Environmental Audit Privilege Act".
However, most state environmental privilege laws are non-uniform, and vary greatly in their scope, exceptions and effect.
The
United States Environmental Protection Agency
The Environmental Protection Agency (EPA) is an independent agency of the United States government tasked with environmental protection matters. President Richard Nixon proposed the establishment of EPA on July 9, 1970; it began operation on De ...
(EPA) has been skeptical of state environmental audit privilege laws, and generally requires that states limit the privilege's effect so as not to interfere with federal investigations.
These concerns were heightened by the question of whether these laws would apply to state government agencies to which the EPA delegated its enforcement authority under federal law.
Accordingly, in the past, the EPA has used its statutory powers in the
delegation
Delegation is the process of distributing and entrusting work to another person.Schermerhorn, J., Davidson, P., Poole, D., Woods, P., Simon, A., & McBarron, E. (2017). ''Management'' (6th ed., pp. 282–286). Brisbane: John Wiley & Sons Australia. ...
of
EPA enforcement authority to discourage states from adopting excessively powerful environmental audit privilege laws.
Some states do not recognize environmental audit privilege, but do provide immunity from civil penalties for the results of internal compliance audits. These states include
Minnesota
Minnesota ( ) is a U.S. state, state in the Upper Midwestern region of the United States. It is bordered by the Canadian provinces of Manitoba and Ontario to the north and east and by the U.S. states of Wisconsin to the east, Iowa to the so ...
,
New Jersey
New Jersey is a U.S. state, state located in both the Mid-Atlantic States, Mid-Atlantic and Northeastern United States, Northeastern regions of the United States. Located at the geographic hub of the urban area, heavily urbanized Northeas ...
, and
Rhode Island
Rhode Island ( ) is a state in the New England region of the Northeastern United States. It borders Connecticut to its west; Massachusetts to its north and east; and the Atlantic Ocean to its south via Rhode Island Sound and Block Is ...
.
See also
*
Environmental privilege
References
{{reflist
External links
EPA inventory of state environmental audit privilege laws
United States state environmental legislation
Privileged communication