I. INTRODUCTION For the past five years, scholars, legislators, regulated entities, and environmental advocates have debated the merits of an abstract concept: the environmental audit privilege. Proponents of the privilege have urged that compliance with environmental laws will be enhanced when the promise of confidentiality induces regulated entities to engage in searching self-audits. Opponents have decried the secrecy inherent in the establishment of such a privilege. Much has been written at an abstract level about this topic. Many articles discuss whether shielding adverse environmental compliance information is a good(1) or a bad(2) idea, and whether it will actually induce the desired results.(3) Proceeding on the assumption that confidentiality is desirable, numerous authors have examined alternative approaches,(4) such as the attorney-client privilege, the work product rule, and an embryonic common law self-evaluation (or self-critical analysis) privilege.(5) Most of these confidentiality proponents have concluded that adverse environmental compliance discoveries cannot be shielded sufficiently under alternative theories, and that only a formal environmental audit privilege will provide the reliable protection necessary to induce widespread auditing.(6) The United States Environmental Protection Agency is convinced.(7) The United States Department of Justice remains unpersuaded.(8) Congress has yet been moved.(9) But state legislators have listened, and they have been mightily impressed. In the past four years, legislative enactments in nineteen states have transformed the abstract concept of an environmental audit privilege into reality.(10) In these jurisdictions, the environmental audit privilege is no longer an idea, but fully formed law, enshrined in the statute books. This move from the ideal to the real requires a new kind of scrutiny. To be sure, arguments about the abstract virtues and demerits of the privilege will continue. But from Alaska to Virginia -- and in seventeen states in between -- regulated entities and those seeking to obtain environmental audit materials must now grapple with the first principle of modern environmental law: the matters. I have explored elsewhere the extraordinary importance of statutory and regulatory minutiae in the present era of law,(11) suggesting that fine print -- or not so print -- has three attributes: (1) it is hidden and difficult to detect; (2) it has been crafted by someone who seeks to use it to his or her advantage; and (3) it leads to unexpected outcomes.(12) The previous article concluded with the following observations: The is here to stay. As a result, modern environmental law is seldom what it appears to be. The rise of microenvironmental law has profound ramifications for persons who study, practice, and implement this law, as well as those who seek to shape and reform its content. Students must be forced to confront the likelihood that their initial understanding of each environmental control scheme is misleading, because the scheme will be shown to be vastly different once the has been explored. Practitioners must likewise shed their simplistic first impressions.... Ultimately, however, the task of clarifying microenvironmental law will fall disproportionately on the shoulders of the academy. Environmental law scholars must continue to bring all of their analytic powers to bear on what has become a truly frightening tangle of materials, illuminating the and flushing it out for public scrutiny ....(13) The purpose of this article, therefore, is to confront the texts of the statutory environmental audit privileges enacted in those states where proponents of the privilege have at least temporarily won the day. …
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Jun 1, 1997
Arnold B Silverman 
Open Access