The environmental self-audit evidentiary privilege

The increasing number of environmental laws has Presented corporations with a dilemma. On the one hand, self-evaluations alert the corporation to violations and thus allow it to avoid civil or even criminal penalties. On the other hand, such evaluations also present damaging evidence of violations that the EPA or a third-Party litigant could use against the corporation. Companies must accordingly calculate whether the risks of compliance outweigh the benefits. In this Comment, Lisa Koven advocates the recognition and application of an environmental self-audit privilege to prevent discovery of self-evaluations assessing compliance with environmental laws. This privilege not only encourages corporations to perform internal audits by removing the risks of self-incrimination, but also promotes compliance with environmental laws that protect public health, safety, and welfare. This Comment tracks the development of the environmental self-audit evidentiary privilege and discusses the recent trend toward its recognition by state legislatures. It also examines the EPA's alternative to the state laws and explains why it does not suffice to preclude the recognition of an environmental self-audit evidentiary privilege.