Informational Regulation, the Environment, and the Public generates a typology to analyze how public disclosure functions in informational regulation. In the environmental context, informational regulation compels the public disclosure of environmental information without mandating substantive environmental outcomes in the expectation that disclosure itself will prompt beneficial change in the environmental context. Application of the Article’s typology reveals that the emperor has no clothes: Communication of environmental information to the public is considered central to policies employing informational regulation, but the information produced pursuant to these measures largely fails to reach or be understood by lay individuals. For example, empirical data shows that corporations required to publicly report releases under the Toxic Release Inventory (TRI) do change their conduct to reduce those releases despite being under no legal obligation to do so. Most people, however, are wholly unaware of the information disclosed under the TRI and, even if made aware of it, unable to comprehend its significance. This insight calls into question oft-cited normative bases for environmental information regulation, including that it supports individual autonomy (by informing choice about exposure to risk) and enriches civic perspective (by enhancing participation in administrative process and other civic behaviors). Critical examination of how informational regulation works and the effects it produces is timely and important. Environmental law increasingly embraces policies that employ informational regulation—it is, for example, central to current proposals to require greater disclosure of climate change risk under securities laws and constitutes a core element of many Environmental, Social, and Governance (ESG) protocols. Yet, close analysis suggests that the success of public disclosure at prompting upstream effects (changing the behavior of regulated entities) masks its general failure to speak to the lay public. Improving informational regulation requires a clear-eyed assessment of its limitations and a recognition that information cannot simply be pumped into the public domain and expected to enlighten individuals.
Katrina Fischer Kuh,
Informational Regulation, the Environment, and the Public,
105 Marq. L. Rev. 603
Available at: https://scholarship.law.marquette.edu/mulr/vol105/iss3/5