Terrorism, Patriotism, and Environmental Protection

These are dark days for environmentalists. Not since Republican legislators swept into Congress following the 1994 elections, promising to forge a new "Contract With America" has the environmental movement felt so besieged.

In the earlier crisis, dozens of federal environmental programs survived a near-death experience when Congress came within two votes of enacting the Risk Assessment and Cost-Benefit Act of 1995. That statute would have prohibited any major health, safety or environmental protection rule unless substantial evidence demonstrated that the benefits would exceed the costs.

Then-Sen. Bob Dole's version of the bill would have gone even further, allowing industry to challenge any existing regulation and automatically voiding any rule not supported promptly by cost-benefit proof. A rule providing that 13-year-olds cannot operate deli meat slicers on the job? Gone, if not quickly supported by cost-benefit calculations. A rule that hazardous waste cannot be dumped in an open field near a school playground? Ditto. To be sure, President Clinton threatened to veto these measures, but environmentalists were alarmed.

Environmental law scholars and public interest groups have no doubt assumed that the newly elected Republican Congress will now dust off and enact the old cost-benefit bill. Perhaps it will. But there is a new dimension to the current environmental crisis, and it is not simply that Clinton no longer holds the veto pen.

Environmental protection is imperiled today not merely because of Nov. 5 but also because of Sept. 11. One needs no crystal ball to predict that polluters and their allies in Congress may soon be trumpeting an Environmental Patriot Act. The thrust of such a statute is captured in the standard line understandably offered by the guardians of such highly vulnerable targets as airlines and nuclear power plants: "We do not comment on security."

What does this have to do with environmental protection? For more than three decades, a core belief of American environmental law has been the notion that the public has a right to know what pollutants are discharged to water, emitted to the atmosphere, stored in neighborhood buildings, buried in communities and delivered through tap water.

The Clean Air Act, the Clean Water Act and the Community Right to Know Act require industrial polluters to monitor their pollutant releases, making this data available to the public. The resulting Toxic Release Inventory database -- readily available on the Web and searchable by zip code -- has been a powerful tool for environmentalists, frequently leading to dramatic reductions in toxic releases. The Safe Drinking Water Act's mandate that consumers be thoroughly informed about the content of drinking water has kept water treatment operators on their toes.

This core public disclosure principle of environmental regulation may now become a casualty of the drive to make us safe from terrorism. Should the public forgo certain information to assure that it will not fall into the wrong hands? Drinking water treatment plants, for example, are inviting targets for terrorists; by dumping chemicals or pathogens into raw water sources, enemies may poison an entire metropolis in a matter of hours. Should contaminant monitoring routinely required by the Safe Drinking Water Act -- the pollutants being measured, the frequency of monitoring and so forth -- now be recast as anti-terrorism procedures? If so, "we do not comment on security."

The cherished Toxic Release Inventory arguably may be misused by terrorists to release deadly chemicals from industrial facilities. Should we, as patriots, therefore sacrifice the hard-fought right to know which chemicals are stored in our back yards and released into the air and water of our communities?

These are difficult questions requiring complicated and nuanced answers. What thoughtful environmentalists fear most in the upcoming congressional session is a rush to judgment. If a proposed Environmental Patriot Act gains momentum, Congress should remember that the toxic cloud slaying the innocent people of Bhopal, India, was not the result of a terrorist act but the consequence of business as usual.

is a Professor of Law at the University of Iowa College of Law, has practiced and taught environmental law for almost twenty-seven years, and has written more than 5,000 pages of books and articles in the field.