Regulation by Shaming

By David Michaels

Last week, public scorn forced Rupert Murdock, powerful chief executive of the News Corp, to cancel âIf I Did It,â OJ Simpsonâs book and Fox TV tie-in. While shaming has fallen out of favor in the field of criminal justice, the heaping of public scorn and anger - dating back to putting criminals in public stocks and labeling adulterers with a scarlet letter -- has long been recognized as a deterrent to unacceptable behavior

Shaming works on corporations as well as individuals. As a mechanism for restricting undesirable behavior, or promoting desirable behavior, shaming is far less expensive or bureaucratic than most rules enforced by federal agency. Some of our most effective public health programs work on this principle â think about the impact of potential customers reading graphic descriptions of restaurant health code violations.

Fear of public disclosure of hazards (and the associated scorn and anger) can be a powerful motivation to clean them up. Public disclosure encourages the responsible parties to control hazards rather than suffer the public embarrassment and political pressure that often follows disclosure.

Mary Graham of Harvardâs Kennedy School of Government has two names for this approach: âRegulation by Shamingâ and âDemocracy by Disclosure.â

A shining example (but now threatened of course) of Regulation by Shaming is the US Environmental Protection Agency's Toxics Release Inventory, or TRI, authorized in 1986 by the Emergency Planning and Community Right-to-Know Act. Like so many important pieces of safety and health regulation, Congress passed this legislation in response to a disaster, specifically, the 1984 chemical release at Union Carbideâs plant in Bhopal, India, that killed untold thousands, soon followed by a leak at a Union Carbide sister plant in West Virginia that hospitalized 100 neighbors.

The law requires certain corporations that manufacture, process, or use significant amounts of toxic chemicals to report annually on their releases of these chemicals. These reports are made public through TRI, for use by neighbors, community organizations, local politicians, and the media.

The TRI has encouraged companies to massively reduce the production and therefore the possible accidental release of toxic chemicalsâa tremendous achievement costing taxpayers very little.

How effective is it? Mary Graham reports a prominent example:

The day before manufacturers sent their first numbers to Washington in 1988, Richard J. Mahoney, then chief executive officer of the Monsanto Corporation, announced in a memorandum to his managers that Monsanto would eliminate 90 percent of its toxic air pollution in less than five years

Since the program kicked off in 1988, reported releases of the original 299 chemicals tracked by TRI have dropped nearly 60 percent. TRI now requires reporting on an additional 300 chemicals âand the program continues to encourage reductions, especially in some of the newer chemicals added to the list.

The TRI remains a popular program with local government entities, and it has not proved costly to the industry, which is doing just fine despite its kneejerk predictions to the contrary.

TRI Under Threat
Despite the programâs effectiveness, in 2005, the Bush Administration began an effort to roll back many of the key reporting requirements, with the full support of the trade associations representing most of the major polluting industries.

The opposition to this rollback is being spearheaded by the invaluable watchdog OMBWatch, who has mobilized community leaders from around the country to tell Congress about the importance of the program.

Recently, the Environmental Council of the States and the EPAâs Science Advisory Board have joined the opposition to the TRI roll-back.

The House of Representatives has already voted to stop the EPAâs rollback. Hopefully the Senate will too. You can help by joining OMB Watchâs campaign.

So here is one way the newly-elected congress can reduce hazardous exposures at low cost to the tax-payers: Instead of reducing the disclosure requirements of TRI, keep them strong and identify other public health and environmental programs that could benefit by increased disclosure.

As Supreme Court Justice Louis Brandeis wrote in 1914:

âSunlight is said to be the best of disinfectants; electric light the most efficient policeman.â

David Michaels heads the Project on Scientific Knowledge and Public Policy (SKAPP) and is Professor and Associate Chairman in the Department of Environmental and Occupational Health, the George Washington University School of Public Health and Health Services.