Environmental Disclosure and Evidentiary Privilege

Posted: 15 Nov 1998

See all articles by Eric W. Orts

Eric W. Orts

University of Pennsylvania - Legal Studies Department

Paula C. Murray

University of Texas at Austin - Department of Information, Risk and Operations Management


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 its environmental performance. On the other hand, other groups, including many environmentalists and the Environmental Protection Agency (EPA), oppose protection of 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 common-law 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 in evidentiary terms as remedial measures rather than confidential consultations.

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 of public disclosure.

JEL Classification: Q28, Q38

Suggested Citation

Orts, Eric Wills and Murray, Paula C., Environmental Disclosure and Evidentiary Privilege. University of Illinois Law Review, Vol. 1997, No. 1, 1997, Available at SSRN: https://ssrn.com/abstract=139668

Eric Wills Orts (Contact Author)

University of Pennsylvania - Legal Studies Department ( email )

3730 Walnut Street
Suite 600
Philadelphia, PA 19104-6365
United States
215-898-3018 (Phone)
215-573-2006 (Fax)

Paula C. Murray

University of Texas at Austin - Department of Information, Risk and Operations Management ( email )

CBA 5.202
Austin, TX 78712
United States
512-471-5259 (Phone)
512-471-0587 (Fax)

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