Eco‐auditing and environmental liability: an international perspective

Environmental law is relatively new, but legislation is developing rapidly. More prosecutions for environmental offences are taking place annually. Much of the legislation is based on the “command and control” approach. This approach has been criticised and market based alternatives advocated. Market failure suggests that an absolute trust in markets is misplaced. Alternative solutions to the regulatory problem have been sought in self‐disclosure. Self‐disclosure is the policy approach of the EPA and is contingent upon an environmental audit. Although this is a regulatory approach there are both legal and economic benefits accruing to firms from environmental auditing and self‐disclosure. But with the benefits come risks. The risk element has led the US legal profession to seek “evidentiary privilege”, but the EPA has rejected this.