Making sense out of secondary sources in environmental law: a research primer.

I. INTRODUCTION

Rachel Carson's ground-breaking book Silent Spring is prefaced with the observation that "[o]ur approach to nature is to beat it into submission."(1) The novice in the field of environmental legal research might adapt that quote to say that the approach to publishing environmental law secondary authorities is to beat the researcher to a point past saturation. A quick look at the law library shelves and computer databases reveals a plethora of environmental law materials. It is a little ironic that in a field partially devoted to conservation there is anything but a conservative number of publications. The environmental law researcher, however, need not be daunted by what may appear to be the Herculean task of conducting initial or continuing research in the field. There are many ways to become introduced to, or keep in touch with, the subject without devoting all of one's time to the task.

Like most bibliographic articles, this piece has a simple primary purpose: to function as a research primer by providing a descriptive list of secondary sources(2) that may prove valuable not only to those faced with the occasional research problem in the environmental area, but also to those with an ongoing need to keep abreast of new developments. A secondary purpose is to help researchers make more efficient use of their time. A brief review of this article may replace an otherwise bewildering and time-consuming tour of the card catalogue or library shelves.

This article discusses many sources in greater detail than would be the case in a traditional annotated bibliography. This is in part a function of the large size and scope of those sources. Full discussions, however, also help provide a clearer picture of the sources. Some of the research materials discussed are substantially duplicative, which should relieve those new to the field who may feel it would be impossible to review the seemingly countless sources on a regular basis. The duplication among the sources is actually an asset because it brings the luxury of choice. After looking at and working with sources that are similar in scope and purpose, the reader may discover that one source is more comfortable to work with than another. I do not intend to promote my own bias. Nonetheless, from time to time I will note particularly helpful features of individual sources. The main goals of this article are: 1) to provide a manageable breakdown of the types of secondary authorities available, 2) to describe some major sources under each category, and 3) to give the reader a feel for available resources.

This bibliography cannot, and does not attempt to, address all the secondary sources that may be used in conducting research in the environmental law area. Rather, I have tried to include sources that are good representations within each category and that cover a broad range of environmental law materials.(3) Moreover, the focus is primarily on federal environmental law, and therefore sources that relate solely to areas such as state environmental law or international environmental law are not discussed. I note, however, where a federally-related source includes state or international information.

II. CATEGORIES

Environmental law research sources can be broken down into the following categories: 1) looseleaf services, 2) treatises, 3) miscellaneous book sources, 4) specialty periodicals, and 5) computer-assisted legal research materials. Numerous books are devoted to various subjects, but because of the difficulty in singling out representative books, they are not discussed. Case books and other teaching texts are also omitted. Within each category, sources are listed alphabetically by title.

A. Looseleaf Services

Looseleaf services have been aptly described as "`mini-librar[ies]' containing all relevant primary and secondary authority needed to research an area of . . . law."(4) Looseleafs devoted to environmental law fit that definition, offering the single most comprehensive research authority for the scholar. On the other hand, the sheer volume of information included in these sources, as well as the number of volumes they contain, may appear overwhelming to the novice user.

1. Environment Reporter(5)

Published by the Bureau of National Affairs (BNA), the Environment Reporter is a multivolume set that incorporates primary and secondary materials. The frequently updated service covers both federal and state environmental law and is broken down into three main portions: 1) Current Developments, 2) Decisions, and 3) the Reference File. Rather than plunging into what may appear to be a volume that is pertinent to your research, the best introduction to this service (and any other looseleaf service for that matter) is to read the "How to Use" pages.(6) Take the time to locate and read these pages; it will save time and spare needless frustration.

The Environment Reporter's Current Developments are weekly pamphlets that review recent events in environmental law. The pamphlets are arranged chronologically in looseleaf binders with periodic cumulative indexes. Each issue contains a number of sections, such as Current Developments, State Laws and Regulations, and Decisions. The front page describes highlights of the week's events and provides a page number referring to the location within the issue containing a more detailed discussion of the item. Issues in Current Developments are clearly broken down by subject, such as solid waste, drinking water, and Superfund. Each subject includes information about recent cases, EPA reports, congressional committee actions, and rulemaking activities. Of particular value in Current Developments are the "Analysis and Perspective" pages, where one can find articles dealing with current topics written by outside authors.(7)

The Decisions(8) component of BNA's service is also comprised of weekly issues; these provide the full text of recent federal and state court opinions. The issue begins with a synopsis of each case. Headnotes written by BNA staff are provided before the full text of each case. The headnotes are eventually included in a digest, organized by topic according to BNA's classification system.(9) As with Current Developments, a looseleaf volume holds the recent Decisions issues. Once the opinions are published in bound volumes, the Cumulative Index Digest pamphlets allow the researcher to search for cases by topic using the classification guide. Consistent review of both Current Developments and Decisions will keep a student of environmental law abreast of recent developments.

The Reference File portion of the Environment Reporter currently consists of forty-one volumes that house the permanent reference materials dealing with federal and state environmental law. Two volumes are devoted to federal laws, four volumes cover federal regulations, one volume contains monographs,(10) and the remaining volumes cover mining and state environmental laws and regulations. Reference File binders are well indexed and include helpful finding tools. A separate Master Index volume helps the researcher gain access to federal laws and regulations.

The Reference File volumes provide more than the full text of relevant statutes and regulations. They also include sections devoted to EPA policies and guidance documents.(11) Other valuable, and perhaps unexpected, information is also included in the Reference File, such as information about EPA programs(12) and a directory providing the names and phone numbers of EPA personnel in Washington, D.C., and in EPA's regional offices.(13) In addition, the Reference File includes a helpful organizational chart of the EPA,(14) a regional map that indicates the jurisdiction of the various EPA regions,(15) and a list of the members of the select congressional subcommittees whose jurisdiction involves environmental matters.(16) It is well worth one's time to peruse the Reference File volumes to fully appreciate the vast amount of information available in that portion of BNA's service.

BNA offers a toll-free telephone number to call for copies of documents, custom research, or legislative monitoring. While this service is not conspicuously detailed in the Environment Reporter's materials, it is highlighted in other BNA materials, such as its Daily Environment Report.(17)

As of July 1994, BNA ceased distribution of Environment Reporter state materials in print, but distribution of federal materials in print will continue. State and federal materials are, however, available on CD-ROM. Therefore, research in the Environment Reporter for federal problems may now be undertaken either manually or electronically, but researchers interested in current state materials must use CD-ROM.(18)

Highlights of BNA,S Environment Reporter:

* Primary materials and commentary dealing with federal and state

environmental law in one multi-volume service;

* Weekly Current Developments issues and Decisions issues detailing

the most recent information on legislation, judicial decisions, and

administrative action;

* Case law with headnotes digested according to BNA's classification

system;

* Federal reference materials including policies, guidance documents,

and miscellaneous information of interest;

* Document copying and custom research services; and

* Here's How this Service is Organized pages and other finding tools

to assist the researcher.

2. Environmental Law Reporter(19)

Similar to the Environment Reporter, the Environmental Law Institute's Environmental Law Reporter is a looseleaf service that reports on recent developments in the courts and in Congress; publishes information relating to federal rulemaking and announcements; and provides references to federal laws, regulations and administrative guidance.(20) The Environmental Law Reporter is a fully indexed, full-text library including commentary and hard-to-find EPA decisions.(21) Reading the How to Use ELR--the Environmental Law Reporter pages is a must for anyone using the service for the first time.(22)

The Environmental Law Reporter contains seven components: 1) Update newsletters, 2) News & Analysis, 3) Litigation, 4) Pending Litigation, 5) Statutes, 6) Administrative Materials, and 7) Indexes. The Updates are published thirty-six times a year, and all of the information included in the Updates is eventually covered in the monthly Current News & Analysis issues. News & Analysis, Litigation, and Pending Litigation are updated monthly. Statutes and Administrative Materials are updated as necessary. The Indexes volume is updated quarterly.

To keep abreast of developments, the publisher suggests using the News & Analysis issues and the Update newsletter.(23) Each News & Analysis issue includes: 1) Articles, Dialogues, and Comments (prepared by Environmental Law Reporter's staff and outside authors),(24) 2) Recent Developments (devoted to judicial, congressional, and administrative actions), and 3) Journal Literature (providing a bibliography of articles dealing with environmental law). The Recent Developments section includes both news items regarding environmental laws and brief summaries of recent court action. References are provided to pages in the Environmental Law Reporter Litigation binder where the full text of the decisions are located.(25) In the Litigation binder, a summary precedes each case. The subject matter index includes all cases, articles, dialogues, and comments.(26) The intervening Update newsletters summarize interim developments.(27)

The Environmental Law Reporter also includes a binder on Pending Litigation. It contains information on current cases, providing synopses of the disputes and relevant procedural developments. For example, one may find information about the filing of a complaint or a memorandum in support of a summary judgment motion in a given case. Each item includes descriptions of the procedural event, and party positions are provided. Environmental Law Reporter's document service will provide a full copy of any pleading upon request.

The Environmental Law Reporter's Statutes volume is continuously updated and includes the text of "the most frequently used environmental laws."(28) References to the statutes cite both the original numbering as used by Congress and the United States Code citation. A particularly helpful statutory outline summarizes the provisions of many environmental laws.(29)

The Administrative Materials volume is similarly updated. In addition to the text of regulations, the Administrative Materials volume includes Records of Decision under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Administrative Law Judge decisions under the Resource Conservation and Recovery Act (RCRA).(30) The volume also includes: 1) a digest of all these decisions and 2) a succinct regulations outline.(31)

A researcher should begin work in the Index volume when using the Environmental Law Reporter, and the publisher has suggested that the subject matter index be used first.(32) The index instructions are very specific to ensure all research areas are covered. A nice feature of the Index volume is a glossary of acronyms, a tool that any student of environmental law cannot be without, which is particularly handy when searching for relevant information. The Index volume also contains an Annual Bibliographies section, which merges the bibliographies from the News & Analysis issues(33) and a Pending Litigation section, which indexes entries in the Pending Litigation volume.

Highlights of Environmental Law Reporter:

* Comprehensive coverage of federal judicial, congressional, and administrative

developments in environmental law in a multi-volume

set with commentary by Environmental Law Reporter staff and

outside authors;

* Monthly News & Analysis issues supplemented by interim Updates;

* Monthly and annual bibliographies of current law journal literature;

* Pending Litigation updates to monitor important cases;

* Document service providing full-text copies of documents upon request;

and

* How to Use ELR--the Environmental Law Reporter pages to provide

research guidance.

A comparison of the Environment Reporter and the Environmental Law Reporter reveals that the BNA service is more comprehensive in scope, in that it covers both federal and state law; it is also updated more frequently--on a weekly basis, rather than thirty-six times per year, as is the case with the Environmental Law Reporter. The Environment Reporter furnishes a researcher with both an index and a case digest in the form of head notes. The Environmental Law Reporter uses only an index approach for its cases, and the same index references articles, dialogues and comments. Thus, case law research may be more efficient in the Environment Reporter since its digest provides case abstracts. The Environmental Law Reporter, however, includes pending litigation information, which allows a researcher to carefully track pertinent cases. It also includes helpful statutory and regulatory outlines.

B. Treatises

Treatises are books that comprehensively treat one area of law.(34) Treatises do not always include the full text of all relevant primary materials; rather, they may contain one or more authors, commentary about a discrete area of law with numerous footnotes to primary authority. Some treatises are multivolume and may have a looseleaf format, while others are updated by pocket parts or supplementary volumes.(35) In short, treatises vary widely in format and size. Treatises also target different audiences; some target experienced practicing attorneys by providing practical insights, while others strive to provide more generalized background information to lawyers and non-lawyers who are delving into the area for the first time.

Many of the works described in this section provide comprehensive coverage of environmental issues, but each should be consulted with caution. Users should remain aware that these texts likely reflect the biases and experiences of the individual authors, rather than the arguably more balanced approach offered by looseleaf service publishing staffs. Before reading a treatise for substance, read its preface to become aware of the author's approach to the material.

1. Environmental Law(36)

This is a four-volume text aimed at "students, practitioners, and observers."(37) It is organized by media: the first two volumes cover air and water, the third volume covers pesticides and toxic substances, and the fourth volume is devoted to hazardous wastes and substances. The second and fourth volumes contain separate Tables and Index pages, covering the materials included in the first and second halves of the set, respectively. The double index approach may save time for researchers who can readily identify their research problems as dealing with either air and water, or hazardous wastes, pesticides, and toxic substances. For example, if presented with an air pollution question, a researcher can immediately look at the index in the second volume to locate relevant commentary, without having to page through index entries dealing with other media. The Tables pages allow a researcher to look up United States Code sections and find references to the section of the treatise's text that discusses the statutes. Because the treatise is a West publication, it also provides

assistance with Westlaw research, including lists of databases, information on retrieving cases by citing statutes, and relevant key numbers for searches.(38)

William Rodgers, the author, perceives environmental law as an evolutionary process, and he discusses its development focusing on his opinion of its important underpinnings. For example, Rodgers views the environmental process as: 1) "a small numbers game"(39) (meaning that laws are generated by a small number of affected agencies and businesses), 2) a product of consensus,(40) and 3) a product of history.(41) This viewpoint is interwoven throughout the text.(42)

2. Environmental Law Series(43)

This is a multivolume, multitreatise set published by Clark Boardman Callaghan. It includes fourteen looseleaf titles and six handbooks, written by a number of authors.(44) Each title is really its own treatise on a specific area of environmental law. The series, inclusion of many manuals and handbooks indicates this set is aimed at the environmental law practitioner. Noticeably missing are volumes containing primary authority; however, relevant primary authority is discussed within each portion of the series. Because the titles are self-contained, it is possible that your library may contain only selected titles rather than the entire set.

The Environmental Law Series Master Index volume guides the researcher into the set, with references tied to the pertinent volume of the series. By looking up a topic in the Master Index, the researcher will find a title code that refers to one or more of the titles in the series. Due to the overlapping areas of many of the titles, researchers should use the Master Index to ensure that all relevant volumes in the series are checked.

A brief analysis of one title within the Environmental Law Series furnishes an insight into the nature of the set. The Law of Environmental Protection(45) is comprised of three volumes with numerous contributing authors. According to its preface, it seeks to inform readers of existing environmental law and familiarize them with pertinent issues.(46) In doing so, the authors chose to break up the relevant statutes to enable the reader to see how they are administered and enforced. The goal is to allow researchers to grasp principles in an easier manner.(47) The authors seek not only to restate the law, but to let readers know where reform is needed and what approaches might work.(48) Its goals are specifically set forth by the authors:

Law of Environmental Protection clarifies general principles and gives the

reader a better grasp of the practical considerations governing the legal outcome.

But it also identifies the needless inconsistencies and conflicts in the

law and identifies opportunities for simplification and clarification. It makes

judgments on what works and what doesn't work and makes suggestions for

improved environmental law and policy.(49)

Even though specific statutes are not always reproduced as part of the Environmental Law Series,(50) many of the volumes are media-specific, allowing researchers to hone in on relevant material.

3. Environmental Rights & Remedies(51)

This two-volume set was originally published by Lawyers Co-Operative Publishing in 1972 and was updated in 1988. Even though the set was recently discontinued by its new publisher, it may still appear in some libraries. Environmental Rights & Remedies was intended to be a practical environmental law handbook.(52) Accordingly, the text includes basic legal background as well as litigation pointers, including form pleadings.

Environmental Rights & Remedies is somewhat unique because its authors stress that environmental litigators must have a solid grounding in environmental science.(53) Therefore, a number of the text's media-specific chapters delve into scientific information as well as legal issues. The scientific material may make the set useful to a researcher despite the fact that its legal material may now be outdated.

4. Shepard's Environmental Law Series(54)

This series is another multivolume set aimed primarily at the practitioner. Published by McGraw-Hill, the set includes: 1) CERCLA Enforcement Policy Manual;(55) 2) CERCLA Litigation, Enforcement and Compliance;(56) 3) Clean Air Compliance & Enforcement Manual;(57) 4) Clean Air Act and 1990 Amendments;(58) 5) Environmental Crimes;(59) 6) Environmental Insurance Litigation;(60) 7) Environmental Law Forms Guide;(61) 8) Hazardous Waste Strategies Update: New Approaches to Remediation and Liability Issues;(62) 9) RCRA and Superfund: A Practice Guide with Forms;(63) 10) RCRA Compliance & Enforcement Manual;(64) and 11) Toxic Tort Practice Guide.(65) The list of individual titles demonstrates that the series is up-to-date and has a practical bent. A researcher, however, should bear in mind that each title reflects the particular authors, biases.

An example of one specialty treatise within this series is Environmental Crimes.(66) This is a two-volume set in looseleaf form, dealing with a very specialized area The first volume traces the history of environmental crimes, discusses crimes under the federal environmental statutes, and covers sentencing and prevention measures. The second volume includes appendices, tables, and an index.

5. Treatise on Environmental Law(67)

This work typifies the traditional treatise by providing comprehensive treatment of environmental law. The first three volumes are devoted to commentary. The fourth volume contains primary federal source materials. The fifth and final volume includes additional primary sources, including regulations, rules, policies, and standards. The commentary volumes are divided into chapters dealing with topics such as air and water pollution, solid waste, disposal of hazardous waste, noise, and radiation. One chapter is devoted to the international aspects of environmental law.(68)

Frank P. Grad, the author, openly acknowledges that he is not competing with the week-to-week informational publications. Rather, he hopes to "provide an integrated view of the field of environmental protection as a whole."(69) Researchers new to the field may find Grad's integrated approach makes environmental law more accessible.

6. Environmental Law Practice Guide: State and Federal Law(70)

Although not listed in alphabetical order, this work is discussed after (Irad's treatise because it is designed to be a practical "accompaniment" to Grad's work.(71) It is published in a looseleaf format, is written by a large number of authors, and covers both state and federal law. The treatise tackles the field from a practitioner's viewpoint. Volumes one through three, and part of volume four, cover a broad range of subjects, divided into Units entitled "Procedures," "Environmental Quality," and "Wastes." The balance of the set includes sections devoted to the environmental laws of the fifty states and Puerto Rico.

C. Miscellaneous Book Sources

A number of books address environmental law generally, but cannot be classified as treatises. These books are single volume texts that attempt to give the reader an overview of the field in a concise manner. They may prove to be a good starting point for research.

1. Environmental Law Handbook(72)

Government Institutes, Inc. publishes this work on a regular basis. The single-volume, twelfth edition text includes entries by a number of contributing authors, most of whom are practitioners. The text begins with a discussion of environmental law basics, including liability and enforcement, and continues with chapters that address all the major environmental statutes and specific problems such as asbestos and underground storage tanks. The text claims to have a reputation as the "pre-eminent authoritative resource in the field."(73) The latest edition has been completely rewritten and its goal is to present a reliable and accurate description of the law in a clear manner, without resorting to legalese.(74)

2. Environmental Law in a Nutshell(75)

Part of the West Publishing Company's Nutshell series, this single-volume paperback succinctly addresses the major topics in environmental law. Chapters are devoted to judicial review, federalism, pollution control, risk management, toxic substances, and the preservation of natural areas. The authors admit that their text is not meant to provide an "exhaustive treatment" of environmental law,(76) but the 300-plus page book is nevertheless a relatively quick read that can give a newcomer to the field a grounding in the basics. The nutshell's coverage seeks to make the reader aware of the issues that arise in implementing environmental policies within the confines of our legal system.(77)

3. Environmental Law(78)

Published as part of West's Hornbook series, this single-volume text is updated by a pocket part and is specifically aimed at law students. The book's goal, as stated in its first edition, was to set forth the current state of the law and occasionally highlight the author's view of what the law should be.(79) The publisher now describes the book as "offer[ing] a detailed treatment of legal principles and issues relating to environmental law."(80) The work is broken down into the following chapters: 1) Introduction to Environmental Law; 2) Common Law; 3) Air Pollution; 4) Water Pollution; 5) Federal Insecticide, Fungicide and Rodenticide Act (FIFRA); 6) Toxic Substances; 7) Hazardous Wastes; 8) The Superfund Law; and 9) National Environmental Policy Act (NEPA).(81) West published the second edition during the summer of 1994, so much of the material in the second edition should be extremely current.

4. The Environmental Law Manual(82)

The American Bar Association's Section on Natural Resources, Energy & Environmental Law published this book as part of its new publications program.(83) The text is broken down into seven parts: 1) Administrative Procedure and Judicial Review; 2) Solid and Hazardous Waste; 3) Water Quality; 4) Air Quality; 5) Business Transactions and Compliance; 6) Enforcement and Citizen Suits; and 7) Toxic Torts. Each part includes a series of articles previously published in the Section's periodical, Natural Resources and Environment. In additions numerous articles were updated prior to publication in this book. Each chapter has a brief introduction that directs the reader to relevant statutes and describes the articles to follow.

The authors are practitioners, and their articles touch on numerous aspects within each major topic. Therefore, under any given part the researcher will find a series of articles introducing a number of the major issues in that area. Some articles may even be directly on point with a researcher's specific area of concern. The editor states that the "the book provides a thoughtful and practical overview, framework, and perspective" of environmental law.(84) Readers should bear in mind, however, that the coverage is somewhat selective.

5. Dwyer & Bergsund Federal Environmental Laws Annotated(85)

This single-volume text, published in August 1994, compiles the major federal environmental laws along with some analysis of each statute. In addition, the text provides references to federal laws, regulations, and cases, and leading law review articles pertaining to each statute.86 The references are not as comprehensive as those found in United States Code Service or United States Code Annotated. Nonetheless, the work could be valuable as a desktop research tool because its references are extensive and may well be a good starting point for the novice in the field.

The table of contents lists the chapters devoted to the various federal titles to the United States Code. The text covers not only some of the more predictable titles, such as Conservation (Title 16), Administrative Agencies (Title 5), and Public Health and Welfare (Title 42), but it also addresses environmental laws under other titles, including Commerce and Trade (Title 15), the Internal Revenue Service (Title 26), and Transportation (Title 49).(87) While the text has not been out long enough to fully evaluate its usefulness, the combination of the numerous environmental statutes, with some references, in one book should be useful to students and practitioners.

D. Periodicals

No one embarking on legal research in the environmental law area should omit a search of legal periodicals for articles of topical interest. A scan of the list of publications included in the Current Law Index reveals at least thirty-two publications dealing directly with environmental law.(88) A number of those publications deal with specialties within the area, such as international environmental law. In addition, a number of other publications may well devote a good deal of coverage to environmental matters within their area of focus, even though, judging from their titles, it is not their sole focus. For example, there are journals dealing with air and space, mining, and the oceans.89 Any law journal of general focus may, of course, also contain relevant environment-related articles. To locate pertinent articles, the researcher can conduct a computerized InfoTrac search, perform a manual index search, use LEXIS or Westlaw, or rely on current bibliographies, such as those published in the Environmental Law Reporter.

E. Computer-Assisted Legal Research

The explosion of Computer-Assisted Legal Research (CALR) over the past ten years should have a significant impact upon researching environmental issues. Not only does it allow easier location of relevant enacted law, cases, and analysis, but it also supplements information obtained from other resources such as looseleafs, treatises, and specialty books. While it would be difficult for the novice in environmental law to begin research with computers, CALR is a source that should be used frequently to ensure that any information found in traditional resources remains accurate. LEXIS and Westlaw, the two primary CALR resources, provide significant resources in conducting research on environmental law.(90)

1. LEXIS

LEXIS has numerous databases devoted to environmental law, and researchers can easily target their searches in an efficient manner. Within LEXIS's environmental library, there are files for federal cases and administrative law judge decisions, statutory and regulatory files, a BNA file for the Environment Reporter, the International Environment Reporter, and the Chemical Regulation Reporter. A number of environment news dailies are also included, as is a database for the Environmental Law Reporter. LEXIS provides state environmental law materials, including agency decisions and case law. Code and administrative materials are included for all fifty states. Legislative histories can be searched for the Clean Air Act Amendments of 1977, CERCLA and SARA, and NEPA. Site-specific infbrmation, compiled by VISTA Environmental Information, Inc.,(91) can also be accessed, allowing the researcher to locate a list of Superfund sites. Researchers can find site facts and descriptions, the type of action taken, the EPA region, and the contaminants found at the site, among other information.(92) Researchers wanting an update on current environmental law events can use the LEXIS Hot Topics service.(93)

2. Westlaw

Westlaw's environmental law databases are extensive and allow researchers to focus searches in specialized areas. Included are federal databases for administrative law, case law, statutes and regulations, and historical databases. The latter include legislative history databases for CERCLA and SARA. Specialized databases include Environment Reporter and the Environmental Law Reporter. Other databases feature an environmental bibliography and a database for Environmental Data Resources (EDR). The EDR database is extensive and, like the LEXIS service, allows a researcher to search for state and federal records associated with Superfund sites, including the National Priorities List and potentially responsible parties. Westlaw also has state databases that contain case law and administrative decisions. In addition, the researcher can check for environmental law highlights on a current basis by using the Westlaw Topical Highlights function.(94)

A comparison of LEXIS and Westlaw offerings reveals a great similarity in coverage. For those who wish to search in the traditional primary and secondary materials, either service will do. Both services allow you to retrieve information about Superfund sites. The services do differ in the supplemental materials covered. For example, Westlaw includes the full text of John-Mark Stensvaag's Clean Air Act: Law and Practice and his Hazardous Waste Law and Practice, which is not carried on LEXIS. LEXIS, however, offers more extensive legislative history coverage than Westlaw. Both Westlaw and LEXIS will provide written information explaining their environmental law coverage, and telephone assistance is readily available. Researchers should not hesitate to call LEXIS or Westlaw, since their coverage in the environmental area is constantly expanding.

III. CONCLUSION

This tour of secondary sources in environmental law concludes with two thoughts. First, where two authorities duplicate coverage, it may be a good idea to work with both sources to determine which source fits one's personal research style. By spending time with both sources, one's choice of a main research tool will be better made, and it will become clear when to refer to the alternative source for something exclusively within its coverage or when it may otherwise meaningfully supplement the research. Second, in a field that changes as quickly as environmental law, any researcher would do well to pay attention to new additions to the local law library's shelves, since new sources are frequently being published. Keeping an eye open for book reviews in legal periodicals is also a good way to become aware of new sources.

One commentator has said that "[e]nvironmental law and its practice call for lawyers with an interdisciplinary bent."(95) A finely tuned research methodology in the field of environmental law research similarly calls for an interdisciplinary bent; that is, a willingness to use a multisource approach. A working knowledge of the major sources in the area will help the environmental law researcher achieve an intersource research approach that is both thorough and comfortable. (1) Rachel Carson, Silent Spring i (1962) (attributed to E.B. White). (2) Although this article targets "secondary sources," I discuss some authorities, notably looseleaf services, that incorporate primary as well as secondary materials. See infra part II.A. Computer-assisted legal research aids are also discussed briefly. See infra part II.E. (3) Research for this article centered on the environmental law sources available in the Pittsburgh area, including those found at the Duquesne University Law Library, the University of Pittsburgh Law Library, and the Allegheny County Law Library. These materials should be representative of the sources available in most law school libraries. Nonetheless, the researcher should consult with a reference librarian to determine what sources are available in one's local library. My apologies are offered to those authors and publishers whose works are not included. (4) Christina L. Kunz et al., The Process of Legal Research 353 (3d ed. 1992). (5) Env't Rep. (BNA). BNA is a publisher of a large number of looseleaf services in various fields. (6) Here's How This Service is Organized, [Federal Laws] Env't Pep. (BNA). (7) "Outside authors" refers to authors other than those on the publisher's staff They are often law professors, judges, or practitioners. For example, a spring 1994 Current Developments issue included an article by the deputy chief of New York City's Environmental Law Division discussing the merits of municipal action to enforce environmental laws. See Peter H. Lehner, Cities as Environmental Plaintiffs: A Guide to Municipal Enforcement of Environmental Laws, [Current Developments] Env't Rep. (BNA) 2080 (Apr. 8, 1994). (8) It should be noted that Decisions is a volume separate from Current Developments. Current Developments, however, sometimes includes within each issue a Decisions section. (9) The topical numbers used in BNA's classification system do not correspond to those used in West's key number system. (10) Monographs are in-depth analyses of specific topics by Environment Reporter editors and outside authors. (11) See, e.g., Council on Environmental Quality Questions and Answers on National Environmental Policy Act Regulations, [Federal Laws] Env't Rep. (BNA) 31:0701 (Mar. 23, 1981). (12) [Federal Laws] Env't Rep. (BNA) 51:1601 (Dec. 3, 1993). (13) [Federal Laws] Env't Rep. (BNA) 61:0501 (May 27, 1994). (14) [Federal Laws] Env't Rep. (BNA) 61:0551 (Sept. 4, 1992). (15) Id. at 61:0552. (16) [Federal Laws] Env't Rep. (BNA) 61:6001 (Oct. 29, 1993); [Federal Laws] Env't Rep. (BNA) 61:6201 (Nov. 12, 1993). (17) A full discussion of BNA's other environmental law-related materials, which are not true looseleaf services in themselves, is beyond the scope of this article. Examples of those materials include BNA's Environmental Compliance Bulletin, BNA's Environmental Due Diligence Guide, BNA's Environmental & Safety Compliance Calendar, and BNA's Federal Environmental & Safety Regulatory Monitoring Report. (18) Telephone Interview with anonymous Information Specialist at BNA (Aug. 1, 1994). (19) Envtl. L. Rep. (Envtl. L. Inst.). (20) How to Use ELR--the Environmental Law Reporter, [Indexes] Envtl. L. Rep. (Envtl. L. Inst.) 1000:3 (July 1994). (21) Id. (22) The Indexes volume contains these pages, a cumulative table of cases, and a subject matter index. (23) How to Use ELR--the Environmental Law Reporter, supra note 20, at 1000:3. (24) See, e.g., Steven M. Jawetz, The Superfund Reform Act of 1994: Success or Failure is Within EPA's Sole Discretion, [News and Analysis] Envtl. L. Rep. (Envtl. L. Inst.) 10,161 (April 1994). (25) How to Use ELR--the Environmental Law Reporter, supra note 20, at 1000:4. Some cases are not published in full text but can be obtained by contacting Environmental Law Reporter's document service. (26) Id. at 1000:5-6 (27) Id. at 1000:5 (28) Id. at 1000:4 (29) See ELR Statutory Outline, [Statutes] Envtl. L. Rep. (Envtl. L. Inst.) 001 (July 1994). (30) How to Use ELR--the Environmental Law Reporter, supra note 20, at 1000:5. (31) See Federal Regulations Outline, [Administrative Materials] Envtl. L. Rep. (Envtl. L. Inst.) 46,001 (July 1994). (32) How to Use the Environmental Law Reporter, [Indexes] Envtl. L. Rep. (Envtl. L. Inst.) 2 (Mar. 1984). Although BNA omitted this advice from its 1994 update of "How to Use ELR--the Environmental Law Reporter," How to Use the ELR--the Environmental Law Reporter, supra. note 20, at 1000:5, it continues to be a good strategy. (33) Id. The bibliographies only contain references to journal literature, not recent books in the field. (34) Kunz et al., supra note 4, at 56. (35) See generally id. (36) William H. Rodgers, Jr., Environmental Law (1986 & Supp. 1994). (37) 1 Rodgers, at v (1986). (38) 1 Rodger, at v-xii (Supp. 1994) (39) Id. at vi. (40) Id. at vi-vii. (41) Id. at vii. (42) For example, in discussing the Federal Environmental Pesticide Control Act of 1972, the author states that [b]y 1972 the consensus in federal pesticides law was much harder to find because historically disorganized environmental interests had become a factor in the legislative process. The Act of Congress that emerged was "severely compromised," the result of a good deal of interest-splicing between several committees urged on by warring constituents. 3 Rodger [sections] 5.3B, at 42 (1986). (43) Envtl. L. Series (Clark Boardman Callaghan). (44) [Master Index] Envtl. L. Series v (1993). Titles in the set include: Baxter's Environmental Compliance Manual; Clean Air Act Handbook; Environmental Law & Practice; Environmental Regulation of Land Use; Environmental Spills Reporting Handbook; Hazard Communication Handbook; Law of Chemical Regulation and Hazardous Waste; Law of Environmental Protection; Law of Independent Power; Law of Solid Waste; Pollution Prevention and Recycling; Law of Toxic Torts; Law of Wetlands Regulation; Law of Water Rights and Resources; Managing Environmental Risk; Medical Waste Handbook; NEPA Law and Litigation; Pesticide Litigation Manual; Public Natural Resources Law; State Environmental law; and Toxic Tort Litigation Handbook. (45) Law of Environmental Protection (Sheldon M. Novick et al. eds., 1991). (46) Id. at xxi. (47) Id. [sections] 1.02, at 1-6. (48) Id. at xxii. (49) Id. (50) For example, the volume on state Environmental Law includes an appendix, "State Reference Guides," that provides an overview, but not the full text, of each state's environmental legislation. Daniel P. Selmi & Kenneth A. Manaster, State Environmental Law, app. A. (1993). (51) Victor J. Yannacone, Je. et al, Environmental Rights & Remedies (1972 & supp. 1988). (52) Id. at v. (53) Id. at vi. (54) Shepard's EnvtL L. Series (Shepard's/McGraw-Hill, Inc.). (55) CERCLA Enforcement Policy Manual (Shepard's/McGraw-Hill, Inc. ed. 1993). (56) Richard M. Hays, CERCLA Litigation, Enforcement, and Compliance (1993). (57) William J. Hamel & Gregory P. O'Hara, Clean Air Compliance & Enforcement Manual (1993) (58) William J. Hamel & Gregory P. O'Hara, Clean Air Act and 1990 Amendments (1993). (59) Christopher Harris et al., Environmental Crimes (1992). (60) Tod I. Zuckerman & Mark C Raskoff, Environmental Insurance Litigation (1992). (61) Robert E. Steinberg & Richard M. Hays, Environmental Law Forms Guide (1990). (62) James D. Miller & Robert E. Steinberg, Hazardous Waste Strategies Update: New Approaches to Remediation and Liability Issues (1990) (with separate additional volumes through 1994). (63) James T. O'Reilly et al., RCRA and Superfund: A Practice Guide with forms (2d ed. 993). (64) Robert E. Steinberg & Robin K. Weiner, RCRA Compliance & Enforcement Manual (1993). (65) James T. O'Reilly, Toxic Torts Practice Guide (2d ed. 1992). (66) Harris et al., supra note 59. (67) Frank P. Grad, Treatise on Environmental Law (1994). (68) Id. at ch 13. (69) Id. at iv. (70) Environmental Law Practice Guide: State and Federal Law (Michael B. Gerrard ed., 992). (71) Id. at Ivii. (72) Environmental Law Handbook (Government Institutes, Inc. ed., 12th ed. 1993). (73) Id at xxix. (74) Id. (75) Roger W. Findley & Daniel A. Farber, Environmental Law in a Nutshell (3d ed. 1992). (76) Id. at vi. (77) Id. at v. (78) William H. Rodgers, Jr., Environmental Law (2d ed. 1994). (79) William H. Rodgers, Jr., Handbook on Environmental Law xv (1977). (80) Rodgers, Environmental Law, supra note 78, at xi. (81) Id. at xii. (82) The Environmental Law Manual (Theodore L. Garrett ed., 1992). (83) Id. at viii. (84) Id. (85) John P. Dwyer & Marika F. Bergsund, Dwyer & Bergsund Federal Environmental Laws Annotated (1994). (86) Id. at ix. (87) Id. at xi-xvi. (88) Boston College Environmental Affairs Law Review, Colorado Journal of International Environmental Law and Policy, Columbia Journal of Environmental Law, Duke Environmental Law & Policy Forum, Ecology Law Quarterly, Energy Law Journal, Environmental and Planning Law Journal, Environmental Law, Environmental Law Reporter, Georgetown International Environmental Law Review, Harvard Environmental Law Review, Journal of Energy Natural Resources & Environmental Law, Journal of Energy & Natural Resources Law, Journal of Environmental Law, Journal of Environmental Law and Litigation, Journal of Environmental Law and Practice, Journal of Land Use & Environmental Law, Journal of Natural Resources & Environmental Law, Journal of Planning & Environment Law, Natural Resources & Environment, Natural Resources Journal, New York University Environmental Law Journal, Pace Environmental Law Review, Stanford Environmental Law Journal, Temple Environmental Law & Technology Journal, Tulane Environmental Law Journal, University of Baltimore Journal of Environmental Law, Villanova Environmental Law Journal, Virginia Environmental Law Journal, and William and Mary Journal of Environmental Law. 14 Current Law Index, Part A, vii-xxix (Information Access Co. 1993). (89) Examples include Air and Space Law, Eastern Mineral Law Foundation, and Ocean Development and International Law. (90) Specialty databases, such as those available through Dialog Information Services, Inc., may also be worth exploring. Westlaw has recently contracted with Dialog to make certain Dialog databases available through Westlaw. Westlaw has information booklets detailing the Dialog databases available. In addition, Dialog offers a toll-free telephone number to obtain information regarding access to their service. (91) 4 Lexis-Nexis Business Information Series, Federal Environmental Protection Agency Records from VISTA Environmental Information, Inc. (1993). (92) Id. (93) LEXIS will gladly forward information detailing its environmental sources. One of its customer pamphlets helps formulate environmental law searches. Environmental Law Searcher (Lexis-Nexis, Mary C. Hall ed., 1991). (94) Westlaw will also provide literature detailing its environmental law research capabilities. E.g., Nancy Johnson-Maloney, Westlaw Environmental Practice Resources (1994). (95) Grad, Treatise on Environmental Law, supra note 67, [sections] 1.04.

Nancy Perkins Spyke (*) Assistant Professor of Law, Duquesne University School of Law. J.D. 1986, magna cum laude, Nova University Law Center; B.A. 1975, magna cum laude, Mount Holyoke College The author currently teaches federal and international (43) See Davidson v. Light, 79 F.R.D. 137, 13940 (D. Colo. 1978) (investigatory evaluation); Dowling, 971 F.2d at 426 (investigation in normal course of business). Accord In re Salomon Inc. Sec. Litig., Fed. Sec. L. Rep. (CCH) [paragraph] 97,254 (S.D.N.Y. 1992). (44) Courts also appear to consider the nature of the institution undertaking the evaluation. Not for profit organizations such as hospitals and academic institutions appear to have received greater deference from the courts than organizations participating in commerce. See, e.g., Flynn v. Goldman, Sachs & Co., No. 91 Civ. 0035 (KMW), 1993 WL 362380, at *1 (S.D.N.Y. Sept. 16, 1993) (confidential interview notes and final reports prepared by nonprofit organization studying barriers to equal and fair employment of women entitled to full protection of the privilege); see also Flanagan, supra note 40, at 561-63. (45) See Peterson v. Chesapeake & Ohio Ry., 112 F.R.D. 360, 363 (W.D. Mich. 1986); Westmoreland v. CBS, Inc., 97 F.R.D. 703, 706 (S.D.N.Y. 1983). See generally cases cited supra note 40. (46) The confidentiality requirement is a feature common to most privileges. See 8 Wigmore, supra note 15, 2285, at 527. (47) With respect to claims that institutional self-analyses are protected from discovery, witness statements made during a deposition concerning the analysis are sufficient to destroy the claim of privilege. Peterson, 112 F.R.D. at 363. The court in that case reasoned:

Privileges suppress evidence otherwise relevant to the fair and just resolution of a

conflict. It would make little sense to allow material to be protected from discovery

that was not intended to be protected by those originating it, or which has subsequently

been divulged by those privileged to know it to those not privileged. Id. See also Coates v. Johnson & Johnson, 756 F.2d 524, 552 (7th Cir. 1985) (voluntary use by employer at trial of its confidential affirmative action program waived any claim of privilege based on self-critical analysis). (48) See cases cited supra note 40. (49) Gilman v. United States, 53 F.R.D. 316, 318 (S.D.N.Y. 1971). (50) Stevenson v. General Elec. Co., 18 Empl. Prac. Dec. (CCH) [paragraph] 8777 (S.D. Ohio 1978). (51) Kott v. Perini, 283 F. Supp. 1, 2 (N.D. Ohio 1968). (52) See Peterson, 112 F.R.D. at 365 (recognizing possibility of self-critical analysis privilege to "facilitate improved responses to hazardous scientific and industrial accidents"). (53) See cases cited supra note 40. (54) See Gray v. Board of Higher Educ., New York, 92 F.R.D. 87, 92-93 (S.D.N.Y. 1981), rev'd, 692 F.2d 901 (2d Cir. 1982) (thoroughly discussing the purported effect of disclosure on the faculty peer review process). (55) There is no empirical data to support the theory that the potential for disclosure negatively impacts the flow of information among participants to institutional self-analyses. The concern is based on perceptions of human nature rather than objective criteria. Not surprisingly, different courts have expressed widely differing opinions about the effect of disclosure on the self-evaluation process. See generally cases cited supra note 40. (56) See Note, The Privilege of Self-Critical Analysis, supra note 1, at 1092 (discussing the "dual" chilling effect of disclosure on individual participants as well as the institution undertaking the evaluation). (57) See Todd v. South Jersey Hosp. Sys., 152 F.R.D. 676, 684 (D.N.J. 1993). (58) Cf. Bredice v. Doctor's Hospital, Inc., 50 F.R.D. 249, 250 (D.D.C. 1970) (holding information not discoverable absent a showing of exceptional necessity), aff'd on reh'g, 51 F.R.D. 187 (D.D.C. 1970), aff'd, 479 F.2d 920 (D.C. Cir. 1973). (59) See, e.g., Gray v. Board of Higher Educ., New York, 692 F.2d 901, 908 (confidential faculty reviews not protected where discrimination is alleged in the promotion process and board fails to state reasons for refusing to grant tenure), rev'd on other grounds, 692 F.2d 901 (2d Cir. 1982); Memorial Hosp. for McHenry County v. Shadur, 664 F.2d 1058, 1062-63 7th Cir. 1981) (hospital committee meeting minutes not protected where meeting's anti-competitive purpose alleged). (60) See, e.g., Resnick v. American Dental Ass'n, 95 F.R.D. 372, 374 (N.D. I11. 1982); O'Connor v. Chrysler Corp., 86 F.R.D. 211, 218 (D. Mass. 1980); Webb v. Westinghouse Elec. Corp., 81 F.R.D. 431, 434 (E.D. Pa. 1978); Frazier v. Southeastern Pa. Transp. Auth., No. 843004, 1988 WL 117869, at *1 (E.D. Pa. Nov. 1, 1988). (61) Webb, 81 F.R.D. at 434. (62) Id. (63) See Resnick, 95 F.R.D. at 434. (64) Compare O'Connor, 86 F.R.D. at 218 (self-evaluative portions of employer's affirmative action plan not discoverable) with Witten v. A.H. Smith & Co., 100 F.R.D. 446, 454 (D. Md. 1984), aff'd, 785 F.2d 306 (4th Cir. 1986) (employers, affirmative action plans and EEO-1 reports, including self-evaluative portions, discoverable). (65) See O'Connor, 86 F.R.D. at 218. The court reasoned in O'Connor that

[t]he central problem is a clash between highly-valued interests (1) in disclosure that

will contribute to full and fair determination of all facts relevant to the plaintiff's

claims and (2) in confidentiality both to assure fairness to persons who have been

required by law to engage in self-evaluation to promote the public interest in fair

employment practices and to make the self evaluation process more effective .... Id. (66) See, e.g., Webb v. Westinghouse Elec. Corp., 81 F.R.D. 431, 433 (E.D. Pa. 1978) ("In view of the strong countervailing policies extant here, we believe that it is necessary to limit carefully the situations in which 'self critical analysis, may be raised as a justification for resisting discovery. Carried to its logical extreme, such a privilege would foreclose discovery of material which might be most strongly probative of discriminatory intent."). (67) See, e.g., O'Connor, 86 F.R.D. at 217 (subjecting evaluative conclusions contained in AAPs to discovery would not necessarily deter future self-analyses or significantly reduce their thoroughness); Davidson v. Light, 79 F.R.D. 137, 139 (D. Colo. 1978) (open discussion among hospital employees during committee meetings relatively unaffected by the discovery of factual data relied upon by the group producing the report); see also Hardy v. New York News, Inc., 114 F.R.D. 633, 642 (S.D.N.Y. 1987). (68) See Webb, 81 F.R.D. at 433-34; O'Connor, 86 F.R.D. at 217; see also Hardy, 114 F.R.D. at 641. (69) See, e.g., Myers v. Uniroyal Chem. Co., No. 91-6716, 1992 WL 97822, at *4 (E.D. Pa. May 5, 1992) (manufacturers would continue to candidly and thoroughly investigate industrial accidents despite discovery of investigative reports); see also Frazier v. Southeastern Pa. Transp. Auth., No. 84-3004, 1988 WL 117899, at *3 (E.D. Pa. Nov. 1, 1988); Hardy, 114 F.R.D. at 641-42. The unwillingness of judges to extend application of the self-critical analysis privilege in subsequent cases may be explained, in part, by a shift in attitudes among the federal judiciary following implementation of the Federal Rules of Civil Procedure and the increased emphasis placed on open and complete discovery. See infra part II.A. (70) See, e.g., Dickerson v. United States Steel Corp., 14 Fair Empl. Prac. Cas. (BNA) 1448, 1449 (E.D. Pa 1976); O'Connor, 86 F.R.D. at 218. (71) See Zahorik v. Cornell Univ., 98 F.R.D. 27, 32 (N.D.N.Y. 1983). (72) See Ford v. University of Notre Dame, 29 Fair Empl. Prac. Cas. (BNA) 1710, 1711 (N.D. Ind. 1980); Ligon v. Frito Lay, Inc., 19 Fair Empl. Prac. Cas. (BNA) 1722, 1723 (N.D. Tex. 1978). FRCP 26(c) states in relevant part:

Upon motion by a party or by the person from whom discovery is sought, . . .

and for good cause shown, the court . . . may make any order which justice requires to

protect a party or person from annoyance, embarrassment, oppression, or undue burden

or expense, including one or more of the following: . . . (2) that the disclosure or

discovery may be had only on specified terms and conditions, including a designation

of the time or place; . . . (4) that certain matters not be inquired into, or that the scope

of the disclosure or discovery be limited to certain matters .... Id. (73) See United States v. Dexter Corp., 132 F.R.D. 8, 10 (D. Conn. 1990); FTC v. TRW, Inc., 628 F.2d 207, 211 (D.C. Cir. 1980); Emerson Elec. Co. v. Schlesinger, 609 F.2d 898, 907 (8th Cir. 1979); United States v. Noall, 587 F.2d 123, 126 (2d Cir. 1978); Reynolds Metal Co. v. Rumsfeld, 564 F.2d 663, 667 (4th Cir. 1977). (74) See Noall, 587 F.2d at 126 ("With respect to the enforcement of the tax laws, Congress itself has already decided the policy issue, and it is not for the courts to challenge that determination."). (75) 132 F.R.D. 8 (D. Conn. 1990). At EPA's request, the U.S. Department of Justice brought this civil action against Dexter Corp. alleging that the company had violated Clean Water Act requirements prohibiting the discharges of oil or hazardous waste into navigable waters. Id. at 9. (76) Id. at 9. (77) Id. In reaching its conclusion, the court quoted the Clean Water Act, 33 U.S.C. [sections] 1321(b)(1) ("[I]t is the policy of the United States that there should be no discharges of oil or hazardous substances into or upon the navigable waters of the United States."). At least one commentator challenges this reluctance by federal judges to consider competing policy considerations where the government seeks discovery materials. See Terrell E. Hunt & Timothy A. Wilkins, Environmental Audits and Enforcement Policy, 16 Harv. Envtl. L. REV. 365. 396 (1992) (challenging the pre-emptive effect of legislative policy pronouncements in the application of the self-critical analysis privilege). In fact, judicial deference toward legislative policy pronouncements in the context of the self-critical analysis privilege is completely opposite to decisions in other areas of the law of privileges. See United States v. Newport News Shipbuilding & Dry Dock Co., 837 F.2d 162, 168-170 (4th Cir. 1988) (defense contractor's internal audit materials were beyond the subpoena powers of the Defense Contract Audit Agency). Furthermore, the result in Dexter is hard to reconcile with the EPA's stated policy of not routinely requesting environmental audit reports. See infra note 98. (78) Dexter, 132 F.R.D. at 10. (79) See Mazzella v. RCA Global Communications, No. 83-3716, 1984 WL 55541, at *6 (S.D.N.Y. Mar. 28, 1984); O'Connor v. Chrysler Corp., 86 F.R.D. 211, 218 (D. Mass. 1980); Webb v. Westinghouse Elec. Corp., 81 F.R.D. 431, 433 (E.D. Pa. 1978). But see Banks v. Lockheed-Georgia Co., 53 F.R.D. 283, 285 (N.D. Ga 1971). (80) Mazzella, 1984 WL 55541, at *6; O'Connor, 86 F.R.D. at 218; Webb, 81 F.R.D. at 433. (81) See, e.g., Webb, 81 F.R.D. at 431; Resnick v. American Dental Ass'n, 95 F.R.D. 372 (N.D. Ill. L982). But see Mazzella, 1984 WL 55541, at *6 (challenging the distinction between mandatory and voluntary affirmative action programs). (82) See Hardy v. New York News, Inc., 114 F.R.D. 633, 641 (S.D.N.Y. 1987). (83) See Tharp v. Sivyer Steel Corp., 149 F.R.D. 177, 184-85 (S.D. Iowa 1993); Etienne v. Mitre Corp., 146 F.R.D. 145, 148 (E.D. Va. 1993); Frazier v. Southeastern Pa. Transp. Auth., Civ. A. No. 84-3004, 1988 WL 117869, at *3 (E.D. Pa. Nov. 1, 1988); Witten v. A H. Smith & Co., 100 F.R.D. 446, 454 (D. Md. 1984). (84) Tharp, 149 F.R.D. at 183-84. (85) See supra notes 26-65 and accompanying text; see also Flynn v. Goldman, Sachs & Co., No. 91 Civ. 0035, 1993 WL 362380, at *2-3 (S.D.N.Y. Sept. 16, 1993). (86) See, e.g., O'Connor v. Chrysler Corp., 86 F.R.D. 211, 217 (D. Mass. 1980) ("The underlying question is should the privilege continue to be recognized, i.e., will the policy of equal employment opportunity be better served by confidentiality in critical self-evaluation or by disclosure of material which might be most strongly probative of discriminatory intent?"). (87) See supra notes 29-36 and accompanying text. (88) See supra notes 26-65 and accompanying text. (89) See supra notes 10-16 and accompanying text. (90) Environmental Auditing Policy Statement, 51 Fed. Reg. 25,004, 25,006 n.1 (July 9, 1986) [hereinafter Auditing Policy Statement]. The Auditing Policy Statement defines regulated entities to include private firms and public agencies with facilities subject to environmental regulation. Id. (91) Id. at 25,006. Seven factors constitute an effective audit: 1) explicit top management support for auditing and a commitment to follow up on audit findings, 2) an auditing function independent of audited activities, 3) adequate team staffing and auditor training, 4) explicit audit program objectives, scope, resources, and flexibility, 5) a process which collects, analyzes, interprets, and documents information sufficient to achieve audit objectives, 6) a process that includes procedures for prompt preparation of candid and accurate written reports, and 7) a process that includes procedures to assure accuracy and thoroughness. Environmental Audits, at II-9 to II-10 (Lawrence B. Cahill ed., 6th ed. 1989). (92) Auditing Policy Statement, supra. note 91, at 25,007 n.3. (93) See generally Environmental Audits, supra note 92, at V-1 to V-10. (94) Id. (95) Id. (96) Id. at 1-15 to 1-16. (97)

EPA has broad statutory authority to request relevant information on the environmental

compliance status of regulated activities. However, EPA believes routine Agency

requests for audit reports could inhibit auditing in the long run, decreasing both the

quality and quantity of audits. Therefore, as a matter of policy, EPA will not routinely

request environmental audit reports. Auditing Policy Statement, supra note 91, at 25,007 (emphasis added). (98) See supra note 4. (99) Environmental Audits, supra note 92, at I-2 to I-4. From 1972 through 1986, the volume of federal environmental regulations appearing in 40 C.F.R. grew from less than 500 pages to roughly 9,200, and this trend has continued into the 1990s. Id. at I-2. Combined with state and local rules and regulations, these requirements can impose significant obligations on corporations and other regulated entities. (100) There are several additional benefits to ensuring compliance with environmental laws. For example, a corporation with a good compliance record can gain a potential competitive advantage due to its public image as being environmentally responsible. A corporation's compliance record could also impact the ability to borrow money or raise capital. Finally, a good compliance record could reduce the risk of shareholder lawsuits based on management's failure to comply with environmental laws. (101) See supra note 6. Although EPA and DOJ have stated that they will not routinely request environmental audit reports, there is no guarantee that these materials will not be sought in an enforcement action. EPA is currently reviewing its policy governing internal evaluations and disclosure and is considering the need to reinforce and/or modify its existing policy on environmental auditing. See EPA Notice of Public Meeting on Auditing, 59 Fed Reg. 31,914 (June 20, 1994). (102) See FWPCA, 33 U.S.C. [sections] 1365 (1988); CAA, 42 U.S.C. [sections] 7604 (1988); SWDA, 42 U.S.C. [sections] 6972 (1988); TSCA, 15 U.S.C. [sections] 2619 (1988 & Supp. V 1993); Marine Protection, Research, and Sanctuaries Act of 1972, 33 U.S.C. [sections] 1415(g) (1988); CERCLA, 42 U.S.C. [sections] 9659 (1988). (103) See supra note 6. Perhaps the greatest danger of undertaking an environmental audit is commencing the audit process without first ensuring that there are sufficient resources to correct any violations detected. (104) See FWPCA, 33 U.S.C. 1318 (1988). (105) See supra note 40 and accompanying text. (106) See generally Environmental Audits, supra note 92, at V-1 to V-10. (107) Id. (108) Cf. Auditing Policy Statement, supra note 91, at 25,006.