Volume 1997    Issue 1

Environmental Disclosure and Evidentiary Privilege

Eric W. Orts^* & Paula C. Murray^**

The proper treatment of voluntary environmental audits has generated a considerable amount of debate at many levels. On one side of the argument, industry has sought a privilege for voluntary internal environmental audits, arguing that this information allows a business to comply with environmental laws and improve their environmental performance. On the other hand, other groups, including many environmentalists and the Environmental Protection Agency (EPA), oppose protection for this information because they believe polluters will be able to withhold evidence of environmental violations.

In this article, Professors Orts and Murray wrestle with these concerns in search of an acceptable resolution for both sides. By examining the development of the self-evaluative privilege, they are able to evaluate the applicability of this mechanism to environmental audits. Most notably they point out that self-evaluative practices are better seen as remedial measures rather than a privilege based on confidentiality. Founded on this insight, Professors Orts and Murray then offer a compelling resolution to this difficult dilemma: an evidentiary self-evaluative privilege that is available only to those businesses conducting their audits under a structured EPA-supervised system.

* Visiting Professor of Law, University of Michigan Law School; Associate Professor of Legal Studies, The Wharton School, University of Pennsylvania. B.A. 1982, Oberlin College; M.A. 1985, New School for Social Research; J.D. 1988, University of Michigan; J.S.D. 1994, Columbia University.

I thank the Wharton School's summer research fund for junior faculty for support. Jody Freeman and Ken Graham at UCLA gave very helpful comments. Richard Friedman and Aidan Synott provided useful thoughts and suggestions.

** Visiting Associate Professor, The Wharton School, University of Pennsylvania; Associate Professor, Graduate School of Business, University of Texas at Austin. B.A. 1977, Baylor University; J.D. 1980, University of Texas.

I would like to thank Kimberly Wallace for her assistance on this article.