Trade Secrets and Information Access in Environmental Law

Abstract:     
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.

Number of Pages in PDF File: 28

Accepted Paper Series