Lyndon, Mary L. --- "Trade Secrets and Information Access in Environmental Law" [2011] ELECD 558; in Dreyfuss, C. Rochelle; Strandburg, J. Katherine (eds), "The Law and Theory of Trade Secrecy" (Edward Elgar Publishing, 2011)

Book Title: The Law and Theory of Trade Secrecy

Editor(s): Dreyfuss, C. Rochelle; Strandburg, J. Katherine

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847208996

Section: Chapter 17

Section Title: Trade Secrets and Information Access in Environmental Law

Author(s): Lyndon, Mary L.

Number of pages: 25

Extract:

17 Trade secrets and information access in
environmental law
Mary L. Lyndon*


I. INTRODUCTION

Businesses often assert a privilege to withhold information that would
identify their own effects on human health and the environment. Access to
data (including chemical identity, volume and locations of discharges, and
data on health and ecological effects) is crucial to environmental, health
and safety (EHS) management. Secrecy undermines risk management,
yet proprietary interests often prevail in direct conflicts over data. In this
chapter I outline a case for a rule that would favor access over secrecy,
namely when the data describes an environmental impact or exposure.1
The petrochemical industry provides a good context for examining
the issues. On one hand, the ingredients of a chemical formula are a
classic trade secret, though patents may also be a good fit. On the other,
many trillions of pounds of chemical substances are distributed each
year throughout the globe, so that exposure to them is widespread.2
Of the approximately 75,000 chemicals in use, only a relatively small
number have been well characterized for potential toxicity, though many
are thought to pose health risks.3 Given these facts, should the identity
of chemicals or data on their effects be covered by trade secrecy or its
progeny, `confidential business information' (CBI)?


* Professor of Law, St. John's University.
1
I use `EHS' and `environmental' as synonyms, but my focus will be on the
environment. Occupational health and safety and consumer product and food and
drug management face ...