Occasionally during his presidency, Donald Trump has suggested that he cares deeply about clean air and water, even as he expresses deep skepticism about climate change. But the specifics of Trump’s deregulatory approach tell a different story. The Trump administration has undertaken a series of regulatory moves to weaken the analytical foundation for clean air and water regulations. These moves seek to eliminate or undercut precisely those regulations that bring the biggest health benefits. The clean air regulations under the Clean Air Act, which account for the overwhelming majority of all quantified and monetized benefits of all federal regulation, are under significant threat.
As evidenced by the Volkswagen diesel emissions scandal, corporations cheat on environmental regulations. Such scandals have created a surge in the academic literature in a wide range of areas, including corporate law,
administrative law, and deterrence theory. This Article furthers that literature by focusing on one particular area of corporate cheating—the ability to learn of the cheating in the first place. Detecting corporate cheating requires significant information about corporate behavior, activity, and output. Indeed, most agencies have broad statutory authority to collect such information from corporations, through targeted records requests and inspection.
Newcomers to California could be forgiven for thinking they have crossed into treacherous terrain. By virtue of the state’s Proposition 65 right-to-know law, store shelves and public garages everywhere announce, “WARNING: This [product/food/facility] contains chemicals known to the State of California to cause cancer [or reproductive harm].” The proliferation of consumer warnings about toxic exposures in everyday life has made Prop 65 highly controversial, as has the degree to which the law incentivizes citizens to sue businesses for failure to warn. Both features make the law recurrently vulnerable to weakening in Sacramento and preemption in Washington, D.C.
Against this backdrop—and at a time when Prop 65 faces a live preemption threat in Congress—this Article tells a new story about the law’s considerable benefits in reducing exposure to toxic chemicals.
