International Right-to-Know: Strategies to Increase Corporate Accountability in the midst of Globalization
Susan Casey-Lefkowitz, Senior Attorney, Natural Resources Defense Council

 

Introduction

 

As we enter the 21^st century, we are witnessing the accelerating pace of economic, social, technological, and political integration worldwide.  This process of globalization holds both great peril and promise for the Earth and the life it supports.  The increased flow of trade and investment has stimulated needed economic development in much of the world, but also has contributed to environmental pressures and social dislocation.  Quite often economic liberalization has raced ahead without adequate environmental and social safeguards.  Public access to corporate reporting of pollutants and toxic releases is one such potential safeguard.

 

Since the September 11 terrorist attacks in the United States, there has been a disturbing trend to limit public access to information concerning chemicals and other potentially dangerous substances and processes. First indications of this have been seen in the United States, with government agencies limiting access to formerly public websites and data.[1] Right-to-know is still in its infancy in most places of the world – and has been steadily developing over the last years. However, if the United States is starting to limit access to information in the name of security, there is an ever-growing danger that other nations around the world will do the same. This new atmosphere of fear makes the international developments in right-to-know even more important than ever before.

 

Right-to-know is gaining ground around the world as citizens and governments strive to hold corporations accountable for basic environmental reporting. The Toxic Release Inventory (TRI) in the U.S. was the first such public inventory of toxic releases on a facility-basis – prompted, as we all know, by the toxic releases from a Union Carbide pesticide manufacturing facility in Bhopal, India. However, although the Bhopal tragedy prompted the development of the U.S. Emergency Planning and Community Right-to-Know Act (EPCRA),[2] there has been a substantial time lag before other countries began to explore similar reporting mechanisms. Moreover, although EPCRA applies to facilities in the United States, it does not apply to U.S. facilities outside of the United States – such as those that caused the Bhopal accident.

 

Environmental NGOs have been in the forefront of introducing the concept of right-to-know and sharing practical experience with chemical and pollution inventories during a decade of learning among countries in regional and global forums.  The right-to-know movement has built on national experience in countries such as Canada, the Netherlands, the United Kingdom, and the United States as these initiatives sought to translate the language of Rio Principle 10 and Agenda 21 on public access to information into reality.[3]  At the regional level, countries developed a common approach called Pollutant Release and Transfer Registers (PRTRs) in the Organization for Economic Cooperation and Development (OECD) and the North American Commission for Environmental Cooperation (CEC). At the global level, the Intergovernmental Forum on Chemical Safety, which now oversees implementation of Agenda 21 on chemicals management, adopted a PRTR/Emission Inventory Action Plan in 2000.[4] It encourages countries without PRTRs to initiate inventories and calls on UN organizations to provide assistance.  It sets a goal of establishing inventories in at least two additional countries in each region by 2004 and urges countries to link PRTRs to reporting requirements under international agreements.  Now the key PRTR discussions have shifted to the UN Economic Commission for Europe (UNECE), the forum for developing broader concepts of public access to information, participation, and justice since the early 1990s.  In the UNECE, PRTR discussions are moving reporting requirements beyond the concept of “toxics” to include a wider range of pollutants, including perhaps genetically modified organisms and noise and radiation pollution. However, PRTR is still at the beginning of becoming a mandatory, publicly accessible register in many countries.

 

In addition to the evolution of TRI-like systems, a newly emerging coalition of public interest organizations is pushing the envelope of publicly accessible reporting to include U.S. facilities outside of the United States and widening the scope of reporting to include natural resources use, labor data, and human rights data. This international right-to-know (IRTK) campaign is gaining ground in the United States and has awakened the interest of international allies.[5]

 

Although the PRTR systems are still under development in many cases and IRTK is a relatively new campaign, this process of discussion, negotiation, and campaigning has opened a door for a wide-ranging debate on the scope of right-to-know. This paper will give a brief overview of the international trends in right-to-know mechanisms and outline some strategies to define and implement an international ideal of corporate accountability.

 

Emerging Systems of Pollutant Release and Transfer Registers

 

The exciting news in international right-to-know is the development of a UNECE Protocol on Pollutant Release and Transfer Registers (PRTR Protocol). The PRTR Protocol is being negotiated under the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) that was signed in 1998 and came into force on October 30, 2001.

 

The PRTR Protocol is an important step towards a consistent system of mandatory pollutant release and transfer registers throughout Europe – including in the European Union, Central and Eastern Europe and the former Soviet Union. The Protocol is expected to be open for signature in 2003.

 

The Aarhus Convention opened the door to a mandatory PRTR requirement.[6] At this stage in the negotiations, the draft PRTR Protocol presents a system of mandatory national PRTR systems, as opposed to a single integrated pan-European system. [7] The Protocol will list substances, each with a threshold that triggers reporting for specific facilities. The Protocol integrates the pollutants already listed in the European Pollutant Emission Register (EPER).[8] It also foresees close integration with existing treaties concerning chemicals, pollutants, and other dangerous substances by specifically including substances regulated under treaty regimes such as those concerning climate change, ozone depletion, persistent organic pollutants, and heavy metals.[9] The Protocol elements also include a list of activities – drawing heavily from the European Union Directive concerning Integrated Pollution Prevention and Control (IPCC Directive).[10] The Protocol will deal primarily with point sources, although the negotiators are discussing a proposal to include activities that result in nonpoint or diffuse sources of pollution as well. The Protocol will cover both releases and transfers, although the scope of the transfers has not yet been determined, nor the extent to which transfers in products will be included.

 

Although the United States is a member of the UNECE, it chose not to participate in the negotiations of the Aarhus Convention. However, U.S. Environmental Protection Agency (EPA) and State Department officials have participated as experts in the negotiations of the PRTR Protocol, while they explore the possibility of joining the process as formal negotiators.[11]

 

Of course, the Aarhus Convention and the PRTR Protocol did not develop in a vacuum. The Aarhus Convention emerged after a region-wide government and NGO process to develop public participation principles and negotiate a treaty – all based on emerging domestic law. In addition, the European Union was already developing a framework for pollutant reporting through the IPPC Directive and EPER. Many individual countries in Europe, as well as in other parts of the world, had developed a host of different reporting mechanisms, registers, and limited public access.

 

The PRTR Protocol draws on earlier work in the OECD, where the United States shared its experience with the Toxics Release Inventory.[12]  In the mid-1990s, OECD organized a series of five workshops in an unusual process that included active participation by UN organizations, NGOs, and business as well as governments to prepare the guidance on right to know suggested in Agenda 21’s Chapter 19 on management of toxic chemicals.  Based on the resulting OECD Guidance to Governments Manual for Pollutant Release and Transfer Registers, the OECD Council adopted a Recommendation in 1996 calling on member countries to establish PRTRs based on the guidance, which identifies common characteristics of PRTRs, and to share the data with other countries.  A review of the Recommendation’s implementation in 2000 found 11 countries with operating, mandatory PRTRs and 8 countries in the process of developing them.[13]  The PRTR protocol also is being developed in the context of regional programs to share information generated by domestic PRTR programs. EPER already has been discussed above. In addition, the North American Pollutant Release Inventory was established in 1995 for continental information-sharing.  The CEC issued their fifth Taking Stock report in 2001 with comparable data sets for an increasing number of North American industries as electric utilities and hazardous waste management joined the list along with recycling.  Ministers have pledged to work toward comparable, mandatory reporting. [14]

 

A parallel source of experiences with environmental reporting has come from voluntary initiatives often linked to corporate environmental management systems. However, these systems typically lack the rigor of a typical PRTR regulatory program --  avoiding facility-specific reporting for each pollutant. For example, the European Union introduced the Eco-Management and Audit Scheme (EMAS) in 1993.  Companies that opt into this system must establish an environmental program and a management system to achieve its objectives, preparing a public report on their performance and have it verified by a third party.[15] The International Standard Organisation’s environmental management standard has been more widely adopted than EMAS except in Germany.  Despite much debate, the ISO standards do not require a public report.  Some countries such as Denmark and the Netherlands are beginning to require their larger companies to provide regular public environmental reports.  Denmark’s “green accounts” include amounts of raw materials, energy and water used as well as emissions to air, water, and soil, waste, and significant pollutants in products.[16]

 

Although corporations conduct a variety of environmental reports, the metrics for these reports usually are not standardized and dissemination is fairly limited.  Some are collected on websites but there are no databases as for PRTRs. The multi-stakeholder Global Reporting Initiative (GRI)—and other initiatives by corporate associations and non-profit groups—may help fill the need for standardized guidelines for company reporting and a new international institution to further develop and administer them.[17]  The GRI guidelines also extend reporting to social and economic performance. However, the guidelines will require the adoption of more detailed, facility-specific reporting protocols as, for example, released in October for greenhouse gases.[18]

 

The PRTR Protocol signals a new direction in reporting. Unlike the corporate  voluntary programs, it is mandatory and if the negotiators hold to the original intent, it will provide clear reporting requirements by facility and substance. Unlike the usually fragmented existing national reporting systems, a regional PRTR Protocol provides a consistent and clearly defined framework, facilitating comparisons and accountability among countries and multi-national corporations.  The PRTR Protocol will require the development of a system that includes the most important elements of reporting from an NGO’s point of view: a mandatory corporate reporting system of raw data by individual substance on a facility-by-facility basis and public accessibility of that data in a timely and user-friendly fashion.

 

The PRTR Protocol necessarily is developing differently from the U.S. right-to-know system and the U.S. Toxic Release Inventory. There is an interesting tension in the development of the PRTR Protocol among the government participants and the non-governmental public interest participants concerning how far to push the scope. Generally, government participants would like to limit the scope of the PRTR Protocol to follow the lines of the European Union’s EPER system. The NGOs see the development of the Protocol as an opportunity to expand PRTR and ensure that the Protocol encompasses the most progressive and forward-thinking interpretation of reporting and public access requirements.[19]

 

Specifically, the PRTR debate is raising issues concerning (1) moving the scope of substances beyond toxic chemicals to include pollutants such as carbon dioxide; (2) the extent to which transfers of pollutants in products should be part of the reporting; (3) inclusion of nonpoint or diffuse sources of pollution in the activities covered by a reporting system; and (4) inclusion of issues such as noise, radiation, and genetically modified organisms. These issues reflect some of the tension described above and the scope of the international PRTR debate. However, it remains unclear which way these elements will evolve over the next few months of negotiations.

 

Holding U.S. Corporations Accountable for Activities Abroad

 

While various international PRTR systems are under development, a vital question remains for the U.S., even outside of questions concerning how to expand and strengthen our domestic right-to-know system. The question is: how can we ensure public access to basic information concerning the operations of U.S. corporations outside of the United States? This issue is narrower than the evolving PRTR systems – in that it only applies to U.S. corporations. However, it is broader than other international PRTR efforts moving well beyond pollutant transfers and releases to include natural resources use, labor data, and human rights data.

 

A coalition of U.S. environmental, human rights and labor organizations has started to address this issue through the development of international right-to-know legislation in the United States.[20] Given the critical role played by TRI and human health and safety disclosure requirements, it makes economic, environmental, labor, and human rights sense to extend right-to-know principles to the international operations of U.S. companies. Communities and workers throughout the world have the right to important information about corporate practices that will have significant impacts on their lives.  In addition, the American public expects that our international economic policy will reflect our country’s best values, and not just our commercial interests.  Finally, right-to-know makes good business sense. It both helps a company identify possible cost-savings and gives consumers and investors a reliable source of information as they choose among companies based on social responsibility.

 

The IRTK campaign draws on the work of many U.S. labor, environmental, and social justice organizations who have advocated corporate disclosure of environmental trends, events and uncertainties to investors. For example, labor and environmental organizations have joined with social investors in an alliance – the Corporate Sunshine Working Group – to push both the SEC and corporations to disclose the full extent of information required by U.S. law.[21] However, the SEC reporting is still limited to specific issues affecting investors, such as boycotts, liabilities, changes in markets due to safety concerns, poor management of environmental or social issues, and legal trouble that may cost the company contracts or penalties.[22]

 

The IRTK campaign hopes to build on these existing SEC requirements and on the domestic environmental and labor reporting requirements. Specifically, the campaign plans to raise public awareness and see a system established that requires U.S. corporations to report concerning environmental, labor, and human rights practices for facilities, subsidiaries, and contractors abroad. The environmental aspect of the IRTK campaign incorporates the U.S. TRI, requiring reports to the U.S. EPA on toxic pollutants to the air, land, and water. It also ideally would encompass resource extraction disclosure, such as timber and minerals, as is already required by some U.S. states.[23] Labor reporting would include application of U.S. Occupational Safety and Health Act (OSHA) reporting requirements, especially concerning serious work-related injuries deaths.[24] It also would include disclosure of hazardous chemicals in the workplace, in accordance with U.S. law. Finally, it would include reporting of core labor standards, such as labor rights policies and complaints concerning violations of those policies or international labor rights standards. Human rights reporting would include disclosure of the existence of security arrangements with state police, military forces, or private security companies and disclosure of any human rights policy and complaints concerning violation of those policies or international human rights standards, and information concerning displacement of indigenous peoples.

 

The IRTK campaign is building a wide constituency among environmental, labor, human rights, social justice and socially responsible investment organizations. The next step will be the introduction of federal legislation to turn these concepts into practice.

 

Strategies for Increasing International Right-to-Know

 

The long-term goal of a broader international right-to-know campaign is pollution prevention and sustainable development. This goal can be reached through a variety of strategies with shorter-term goals, such as U.S. ITRK legislation, a credible UNECE PRTR Protocol, regional public participation and right-to-know agreements in Africa, Asia, and Latin America, and strengthened voluntary reporting programs.

 

The following overview outlines strategies already being undertaken by coalitions of organizations. Each has its merit alone and as part of  a spectrum of strategies. These strategies will benefit from being implemented in a variety of fora, including the public, the media, legislatures, international organizations, the corporate sector, the 2002 Johannesburg Earth Summit, and many more. Each of these strategies also will benefit from pulling in a wide range of organizations, corporations, and government agencies to ensure the end results are practical and lead to improved and expanded reporting, corporate accountability, and pollution prevention.

 

·         Consumer/investor campaigns concerning reporting: A consumer/investor campaign can target the most egregious corporate polluters, human rights abusers, or violators of labor rights. Such a campaign can be built around individual consumers and investors or around corporate consumers and investment corporations. Markets pressure of this type often leads corporate consumers and investors to ask for alternatives and to push their suppliers to adopt on the relevant objective – in this case corporate accountability and pollution prevention.

 

·         Campaign for a U.S. IRTK law: An U.S. legislative strategy will require raising public awareness, building support on Capitol Hill, and building support in the corporate sector (as well as in the NGO sector) for an international right-to-know law. Such a law can build on reporting requirements already existing in U.S. domestic legislation and can cover the environmental, human rights, and labor reporting goals.

 

·         UNECE PRTR Protocol: Not only does the PRTR Protocol need to be completed, it will need wide participation from the NGO community to push for the most progressive obligations possible. In addition, the U.S. and European NGO communities need to address the question of whether they wish to actively advocate that the U.S. government take part in the negotiations.

 

·         Regional / global treaties concerning public participation principles: The 1992 Earth Summit’s Rio Principle 10 has encouraged widespread discussion of how to address public participation in environmental decision-making, including questions concerning access to information and access to justice. The Aarhus Convention is the first treaty manifestation of Principle 10, however, Latin America, Asia, and Africa are all in different stages of a process to develop regional strategies, principles, and, perhaps eventually, agreements. Regional coalitions of NGOs and governments need support in developing such agreements and specifically in developing regional agreements concerning right-to-know as an important early step in any regional public participation process.

 

·         Advance laws and public policies in other countries: A legislative strategy in other countries will need to come primarily from the NGOs, government and corporate sector of each country. Yet, it can still benefit from information-sharing assistance from the U.S. and other countries and from a process to develop a regional right-to-know strategy or agreement, as discussed above.

 

• Strengthen voluntary reporting programs: The existing voluntary programs play an important role in allowing corporations to experiment with reporting systems and develop a cadre of best practices. However, existing systems are still relatively weak and leave much to the discretion of the corporation. If they are to become a credible alternative to mandatory systems, they will need to be strengthened and take up the best elements of the existing regulatory programs.

 

Conclusion - Assessment of International Right-to-Know

 

Right-to-know reporting is an important part of preserving good international relations, community and environmental health and security, and long-term corporate health and sustainability. A bird’s eye view of the world shows environmental right-to-know reporting requirements spreading – with legislation inevitable in many of the countries in the pan-European region over the next 5-10 years and rising awareness of pollutant reporting as a pollution prevention tool in other parts of the world. However, to ensure that this awareness turns into reporting requirements will take efforts on many fronts – including strategies to develop regional agreements, national legislation, change corporate behavior and strengthen existing right-to-know systems.

Send comments on this paper to Susan Casey-Lefkowitz

 

 

 

 

 

 

Resources

 

U.S. IRTK Campaign

 

International Right to Know Campaign: www.irtk.org

 

UNECE Aarhus Convention

 

UNECE Aarhus Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters: www.unece.org/env/pp

 

UNECE Pollutant Release and Transfer Register Protocol Drafting Process: www.unece.org/env/pp/prtr.htm

 

EcoForum: www.participate.org

 

Organization of Economic Cooperation and Development

 

Organization of Economic Cooperation and Development: www.oecd.org (go to Environment and then to Chemical Safety and then to PRTR)

 

United Nations Programs

United Nations Environment Programme - Chemicals (UNEP Chemicals)
http://irptc.unep.ch/irptc/

United Nations Environment Programme Pollutant Release Transfer Registers (UNEP PRTR)
http://irptc.unep.ch/prtr/

United Nations Institute for Training and Research (UNITAR)
http://irptc.unep.ch/prtr/intl04.html

UNITAR Chemical and Waste Management Publications - PRTRs
www.unitar.org/cwm/publications/#BT1

Other International Organizations

World Bank: New Ideas in Pollution Regulation (NIPR)
www.worldbank.org/nipr/

World Health Organisation: PRTRs and emission estimation models
www.who.int/water_sanitation_health/HIA/EEmodels.html

Commission for Environmental Cooperation (CEC): Taking Stock North American Pollutant Releases and Transfers www.cec.org

Regional Environmental Center for Central and Eastern Europe www.rec.org

Environmental Organizations

Environmental Defense Fund: The Chemical Scorecard www.scorecard.org

Friends of the Earth Factory Watch  www.foe.co.uk/factorywatch

Corporate Sunshine Working Group webpage: www.foe.org/international/cswg

Sierra Club www.sierraclub.org

 

Country Examples

Australia: National Pollution Inventory (NPI) www.erin.gov.au/net/npi.html

Canada: National Pollutant Release Inventory (NPRI) www.ec.gc.ca/pdb/npri

Czech Republic www.ecn.cz/PRTR

Mexico www.ine.gob.mx/retc/retc.html

United States www.epa.gov/tri

 

Voluntary Reporting Systems

 

Global Reporting Initiative www.globalreporting.org

 

Global Compact www.unglobalcompact.org

 

AccountAbility 1000 www.accountability.org.uk

 

Social Accountability 8000 www.SA8000.org

 

Global Sullivan Principles www.globalsullivanprinciples.org