Clearing the air? Information disclosure, systems of power, and the national pollution release inventory.

• Author: Simmons, Greg
• Position: Canada

The establishment of the National Pollutant Release Inventory (NPRI) in 1992 marked the emergence of a new approach to the regulation of industrial pollution in Canada. In contradistinction to the traditional permit-based model of regulation, the NPRI sets no mandatory discharge limits, instead requiring facilities to track their releases of pollutants and report them to a publically-accessible national database. Through its grounding of regulation in the interplay of social actors interacting across the public/private divide, the NPRI exemplifies a new governance technique of environmental regulation, a characterization I examine through a series of analytical lenses. The mining industry offers an informative narrative, and I contend that the relationship between mining activity and the NPRI illustrates well the risks of failing to attend to the extant distribution of power within the social dynamic that informational regulatory mechanisms seek to harness. I end by offering some recommendations for how the NPRI might be improved in light of these considerations.

La creation de l'Inventaire national des rejets de polluants (INRP) en 1992 a marque le debut d'une nouvelle approche par rapport a la reglementation de la pollution industrielle au Canada. Contrairement au modele traditionnel base sur l'octroi de permis, I'INRP n'etablit pas de quantites maximales autorisees pour le rejet de polluants; il requiert plutot que les installations assujetties suivent l'evolution de leurs rejets et produisent une declaration a cet effet dans une base de donnees nationale accessible au public. En s'arrimant aux interactions entre les acteurs sociaux des secteurs prive et public, I'INRP s'inscrit dans une > de la reglementation de l'environnement, une approche que nous examinons ici sous differents angles analytiques. L'industrie miniere offre un exemple instructif et nous estimons que la relation entre cette indusrie et I'INRP met en lumiere les risques encourus lorsque la distribution des pouvoirs au sein de la dynamique socaale que I'INRP vise a encadrer n'est pas prise en compte. A la lumiere de ces enseignements, nous offrons quelques recommandations visant a amelaorer I'INRP.

Introduction

1. The Establishment and Operation of the NPRI II. Mining and the NPRI III. The NPRI in Theory and Practice A. The NPRI as New Governance Regulation B. Empirical Analysis of Pollution Inventory Performance C. Freedom of Information, Democracy, and the Political Economy 1. Democracy and Pollution Inventories in Theory and Practice 2. Compliance, Deterrence, and Enforcement Conclusion: Reforming the NPRI Introduction

   The establishment of the National Pollutant Release Inventory (NPRI) in 1992 marked the emergence of a new approach to the regulation of industrial toxic pollution in Canada. Whereas in the traditional permit based model of regulation, the regulator imposes specific restrictions on the pollutant discharges of the regulatee, the NPRI sets no mandatory discharge limits, instead requiring facilities merely to track their releases of certain pollutants and report them to a publically accessible national database. In this way, it enhances the public's capacity to scrutinize polluters and pollution levels and to influence, both formally and informally, the behaviour of polluting actors and official regulators. Through the NPRI, a wide range of stakeholders (potentially extending to local residents, community groups, public interest advocates, employees, investors, customers, and competitors) can enter the regulatory arena--and do so, in principle, armed with information about who is polluting and what they are discharging. In appealing to the interplay of social actors and social processes, the NPRI seeks to move beyond the binary of regulator and regulatee and to breach the public/private divide. As such, it can be considered as exemplifying a new governance technique of environmental regulation. (1)

   My focus here is on the NPRI as regulatory policy and, more generally, on the information disclosure approach to environmental performance viewed in light of economic, institutional, and political power relations within society. (2) While I review the current evidence on the pollution inventory and reductions in emissions, my aim is not to advance a totalizing narrative on the effectiveness, or lack thereof, of the NPRI, something that likely varies widely and non-linearly in response to a complex and hyper-interactive set of variables. (3) Rather, it is to begin to consider the heretofore largely neglected theoretical issue of the play of power dynamics underlying the inventory's operation. After briefly describing the development and history of the NPRI and outlining the mechanism of its operation, I go on to examine the pollution inventory approach in theory and in practice, applying a series of analytical lenses. The new governance philosophy is premised on establishing a social dynamic in which a plurality of actors variously connected to the regulated entity seeks to influence its behaviour; hence, I offer an overview of existing analyses of how these various stakeholders have engaged with (or not engaged with) pollution inventories. In this light, the experience of mining and the NPRI presents an informative case study. I contend that the relationship between mining activity and the NPRI illustrates well the risks of failing to attend to the extant configuration of power relations within the very social interactions that informational regulatory mechanisms seek to harness. The historic failure of the NPRI to fully include in its domain the harmful effects of mining is indicative of the need to carefully consider the influence of the socio-economic landscape when designing a pollution inventory model. (4) This analysis then leads to a more general examination of the ideological and structural precepts of regulation-by-information. In light of these considerations, I end by offering some recommendations for how the NPRI might be improved with an eye to increasing its capacity to foster a positive informational dynamic of better and more accessible information, leading to greater public involvement and improved regulatory action across a multi-faceted regulatory regime.

1. The Establishment and Operation of the NPRI

   The creation of the NPRI followed on the heels of its American cousin, the Toxics Release Inventory (TRI); each was a product of mounting public concern over the accumulation of industrial toxins in the environment. In both countries, numerous high-profile issues and events of the 1970s and 1980s--the impact of chlorofluorocarbons (CFCs) on the ozone layer, the "toxic blob" found in the St. Clair River, the leakage from the Love Canal disposal site by Niagara Falls--raised the profile of industrial chemical contamination and spurred a growing "right-to-know" community movement. And in both instances, government action was catalyzed by the devastating Bhopal chemical plant disaster. (5) In the United States, this tragedy provoked the (hurried) creation of the TRI under the Emergency Planning and Community Right to Know Act (EPCRA). (6) In Canada, the NPRI was established under the rubric of the Canadian Environmental Protection Act (CEPA). (7)

   Originally proclaimed into force in 1988, the intent of CEPA was to move away from a piecemeal approach to toxic pollution, whereby substances could fall under the domain of any (or none) of a number of unconnected legislative regimes, (8) to a more integrative and holistic system that deals with toxic industrial chemicals "from cradle to grave." (9) In the words of Environment Canada, CEPA is intended as "a framework for the management and control of toxic substances at each stage of their life cycle, from development and manufacturer/importation through to transportation, distribution, use, storage and ultimate disposal as waste." (10) The result is a multifaceted and complex piece of legislation that employs a range of regulatory devices--permitting, environmental quality objectives, guidelines, and codes of practice--and crosses departmental and even ministerial divisions. (11) Established under the authority of subsection 46(1) of CEPA, which gives the Minister of the Environment broad powers to require reporting of information regarding pollution and toxic substances, the NPRI is one component of this mosaic. (12) Section 48 then requires the use of this information to establish a "national inventory of releases of pollutants." (13) Failure to comply with the submission requirements of the NPRI is a hybrid offence under CEPA and carries the maximum penalty of a fine of $1,000,000 and imprisonment for a term of up to three years. (14)

   The listing of substances on which reporting is required appears in the "Notice with respect to substances in the National Pollutant Release Inventory", published annually in the Canada Gazette, Part 1. (15) Facilities meeting the minimum threshold criteria (16) are required to track the "releases, disposals and transfers for recycling" of substances listed in the Schedule 1 to the Notice and report their results to Environment Canada. (17) The number of substances on which facilities are required to report is relatively small: the most recent notice lists 366 substances. (18) Compare this to the more than twenty-three thousand chemicals appearing on the "Domestic Substances List" and deemed as requiring evaluation under CEPA. (19)

   A permanent substance review process is used to add substances to the reportable list. Whereas relatively minor changes can be implemented via paper consultation (or other less formal mechanisms), for "multiple, complex or controversial" (20) candidate substances, a multi-stakeholder working group (MSWG) comprising representatives from government, industry, environmental groups, and First Nations is struck to develop recommendations. The MSWG assesses candidate substances and makes recommendations to...