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Abstract:
Reducing the risk of catastrophic climate change will require leveling off greenhouse gas emissions over the short term and reducing emissions by an estimated sixty to eighty percent over the long term. To achieve these reductions, we argue that policymakers and regulators should focus not only on factories and other industrial sources of emissions but also on individuals. We construct a model that demonstrates that individuals contribute roughly one-third of carbon dioxide emissions in the United States. This one-third share accounts for roughly eight percent of the world's total, more than the total emissions of any other country except China, and more than several continents. We contend that it is desirable, if not imperative, that governments address emissions from individual behavior. This task will be difficult because individual behaviors, including idling cars and wasting electricity, are resistant to change, even when the change is rational. Mindful of the costs, we propose measures that have a high likelihood of success. We draw on norms theory and empirical studies to demonstrate how legal reforms can tie the widely held abstract norm of personal responsibility to the emerging concrete norm of carbon neutrality. We suggest that these legal reforms could push carbon neutrality past a tipping point, directly influencing many carbon-emitting individual behaviors and building the public support necessary for policymakers to address the remaining sources.

climate change, environmental law, social norms, personal norms, individual behavior, offsets, carbon dioxide emissions

Abstract:
The central problem confronting climate change scholars and policymakers is how to create incentives for China and the United States to make prompt, large emissions reductions. China recently surpassed the United States as the largest greenhouse gas emitter, and its projected future emissions far outstrip those of any other nation. Although the United States has been the largest emitter for years, China's emissions have enabled critics in the United States to argue that domestic reductions will be ineffective and will transfer jobs to China. These two aspects of the China Problem, Chinese emissions and their influence on the political process in the United States, result in a mutually supportive but ultimately destructive dance between the two countries. This article argues that a post-Kyoto international agreement and other measures are necessary but will not create sufficient incentives to induce China, and ultimately the United States, to act. Instead, the article draws on the fact that the United States and Europe account for 41% of Chinese exports to propose a novel means of changing both countries' incentives. The article suggests that private or public schemes in the United States and Europe to disclose product carbon emissions and corporate carbon footprints can create consumer and other pressure that will induce firms to impose supply chain requirements on Chinese and other suppliers. This form of global private governance can create market-based incentives for China and the United States to reduce emissions directly and to make credible emissions reduction commitments in the post-Kyoto era.

climate change, greenhouse gases, carbon footprints, governance, environmental law, international law, corporate behavior, labeling

Abstract:
The individual and household sector generates roughly 30 to 40 percent of U.S. greenhouse gas emissions and is a potential source of prompt and large emissions reductions. Yet the assumption that only extensive government regulation will generate substantial reductions from the sector is a barrier to change, particularly in a political environment hostile to regulation. This Article demonstrates that prompt and large reductions can be achieved without relying predominantly on regulatory measures. The Article identifies seven "low-hanging fruit:" actions that have the potential to achieve large reductions at less than half the cost of the leading current federal legislation, require limited up-front government expenditures, generate net savings for the individual, and do not confront other barriers. The seven actions discussed in this Article not only meet these criteria, but also will generate roughly 150 million tons in emissions reductions and several billion dollars in net social savings. The Article concludes that the actions identified here are only a beginning, and it identifies changes that will be necessary by policymakers and academicians if these and other low-hanging fruit are to be picked.

environment, climate change, carbon, individual behavior, informational regulation

Abstract:
A substantial proportion of the United States population is at or below the poverty level, yet many of the greenhouse gas emissions reduction measures proposed or adopted to date will increase the costs of energy, motor vehicles, and other consumer goods. This essay suggests that although scholarship and policymaking to date have focused on the disproportionate impact of these increased costs on the low-income population, the costs will have two important additional effects. First, the anticipated costs will generate political opposition from social justice groups, reducing the likelihood that aggressive measures will be adopted. Second, to the extent aggressive measures are adopted, they will miss large potential emissions reductions because the low-income population will be unable to respond by purchasing less greenhouse gas-intensive, but more expensive, consumer goods. The essay proposes a novel remedy to address this problem: equity offsets. These offsets will allow other individuals and organizations to subsidize low-income individuals' purchase of less greenhouse gas-intensive goods, thereby reducing greenhouse gas emissions, the political opposition to emissions reduction measures, and the hardships caused by the higher costs of consumer goods. The essay suggests that the creation of a private or public equity offset program along these lines is feasible and will begin to address all three implications of the climate change equity problem.

climate change, environmental law, environmental policy, offsets, justice, equity, greenhouse gases

Abstract:
This Article argues that networks of private contracts serve a public regulatory function in the global environmental arena. These networks fill the regulatory gaps created when global trade increases the exploitation of global commons resources and shifts production to exporting countries with lax environmental standards. As critics of trade liberalization have noted, public responses often are inadequate to address the attendant environmental harms. This Article uses empirical data to examine how private contracting regulates firm behavior, focusing on supply-chain contracting. The Article shows that more than half of the largest firms in eight retail and industrial sectors impose environmental requirements on their domestic and foreign suppliers. This contracting, which the Article terms "the new Wal-Mart effect," reduces externalities by translating a complex mix of social, economic, and legal incentives for environmental protection into private contractual requirements. After demonstrating that private environmental contracting is an important part of global environmental governance, the Article examines the efficacy and accountability of this regime. The Article concludes that the private contracting regime often is preferable to the alternatives: lax national and international regulation of firms in many exporting countries, and markets that lack private environmental contracting. Finding much promise in the private contracting regime, the Article concludes by suggesting new strategies for governments, nongovernmental organizations, and firms.

environmental law, climate change, contracts, regulation, governance

Abstract:
This Article proposes a new conception of the administrative regulatory state that accounts for the vast networks of private agreements that shadow public regulations. The traditional account of the administrative state assigns a limited role to private actors: private firms and interest groups seek to influence regulations, and after the regulations are finalized, regulated firms face a comply-or-defy decision. In recent years, scholars have noted that private actors play an increasing role in the traditional government standard setting, implementation and enforcement functions. This Article demonstrates that the private role in each of these regulatory functions is far greater than others have identified. Furthermore, the Article argues that only when this private regulation is considered can the accountability and efficacy of the administrative state be judged. Using environmental regulation as an example, the Article examines a wide range of empirical data to demonstrate that public law requirements spawn a vast body of private agreements. These second-order agreements range from corporate acquisition and credit agreements between private firms to "good neighbor agreements" and other agreements between private firms and non-profit groups. Second-order agreements often concern not only environmental regulation, but labor, worker safety, health care and other regulatory areas. The Article shows that second-order agreements alter the types of parties that have interests in regulatory outcomes, the incentives they face, and the performance of the regulatory regime. The recognition of second-order agreements thus suggests a new agenda for empirical and theoretical work on the public regulatory measures that will generate the optimal blend of public and private regulation.

Administrative Law, Environmental Law, Private Agreements, Private Governance, Private Regulation, Corporate Transactions

Abstract:
This Article tackles a leading problem confronting norms theorists and regulators: how can the law induce changes in behavior when the material costs to the individual outweigh the benefits and there is no close-knit community to impose sanctions for failure to change? Because private individuals and households are now surprisingly large contributors to environmental problems ranging from toxic pollution to climate change, environmental policy makers face compelling examples of these negative-payoff, loose-knit group situations. This Article suggests that internalized personal norms, rather than social norms, are the most important initial target of opportunity for influencing this kind of behavior.

Drawing on the social psychological literature, the Article develops a theory of environmental norm activation that identifies the changes in beliefs necessary to activate personal norms. The Article goes on to suggest the contours of an innovative regulatory reform that will enable the norm activation process to occur. It urges the adaptation of an existing reporting scheme, originally developed for industrial polluters, to require publication of an annual profile of toxic releases by individuals and households. The dissemination of this information will address negative-payoff, loose-knit group situations by activating norms that affect behavior directly, and it will generate civic support for government investments that make behavior change less expensive and more convenient for individuals to adopt. The Article concludes by identifying the implications of its theory and methodology for a wide range of regulatory areas in which individuals are sources of social risks.

Environmental Law, Regulation, Social Norms, Personal Norms, Social Influences, Toxic Chemicals

Abstract:
To achieve the level of greenhouse gas emissions reductions called for by climate change experts, officials and policy analysts may need to develop an unfamiliar category of regulated entity: the consumer. Although industrial, manufacturing, retail, and service sector firms undoubtedly will remain the focus of climate change policy in the near term, individuals and households exert a greenhouse footprint that seems simply too large for policymakers to ignore in the long term. This paper, written as a foreword for the Environmental Law Reporter's symposium issue, "Climate Change and Consumption," emerges from an interdisciplinary conference of the same title held at Vanderbilt University in April 2008. The paper begins by providing an overview of the limited role that consumer behavior and decision making has played in environmental law to date. It then describes theoretical and empirical frameworks for understanding the consumer and consumption that could be deployed to inform law and policy if, as we predict, the consumer becomes a much more significant target of environmental regulation. The paper concludes by summarizing the symposium articles, which range widely across disciplines and areas of focus, but which reflect a common belief that the carbon-constrained consumer is worthy of significant academic and policy attention.

Climate change, environmental law, consumer, consumption, individual behavior

Abstract:
From the inception of the administrative state, scholars have proposed various models of agency decision-making to render such decision-making accountable and effective, only to see those models falter when confronted by actual practice. Until now, the presidential control model has been largely impervious to this pattern. That model, which brings agency decision-making under the direction of the President, has strengthened over time, winning broad scholarly endorsement and bipartisan political support. But it, like prior models, relies on abstractions - for example, that the President represents public preferences and resists parochial pressures - that do not hold up as a factual matter. Although recent empirical analyses purport to validate the model, they fall short because they examine how the White House exercises control without considering how agencies experience control. This Article is the first to study the practice of presidential control from inside the administrative state. We interviewed the top political officials at the Environmental Protection Agency from the George H. W. Bush and Clinton Administrations during 1989-2001. Our data, which do not vary substantially between respondents of different presidential administrations, suggest that White House involvement is more complex and less positive than previous accounts acknowledge. But we do not conclude that the presidential control model lacks merit. Indeed, our respondents recognize that the President has a role to play in controlling agency decision-making. We therefore conclude that the presidential control model requires reworking to remain valid in practice as well as in theory. We identify next steps in that direction.

agency, EPA, White House, presidential control, OIRA, accountability, empirical, regulation, rulemaking

Abstract:
A debate between advocates of command and control regulation and advocates of economic incentives has dominated environmental legal scholarship over the last three decades. Both sides in the debate implicitly embrace the premise that regulatory measures should be directed almost exclusively at large industrial polluters. This Article asserts that for many pollutants the premise is no longer supportable, and that much of the focus of regulation in the future should turn to individuals and households. Examining a wide range of empirical data, the Article presents the first profile of individual behavior as a source of pollution. The profile demonstrates that individuals constitute a surprisingly large source and that the resulting environmental harms may be substantial. Reconceptualizing individuals as targets of regulatory action will require corresponding changes in regulatory theories and methods, and agency management. The Article suggests that although traditional command and control and economic measures have limited prospects for changing individual behavior, innovative uses of informational regulation and norm management, both alone and in combination with the traditional measures, are potentially powerful tools. The Article also proposes agency management reforms, including development of agency expertise on the social influences of agency actions and a reexamination of the administrative procedures needed for informational regulatory measures. The new view of the individual as polluter presented in this Article thus not only challenges a fundamental premise of the environmental regulatory debate but offers an agenda for the evolution of the regulatory state.

Environmental Law, Regulation, Social Norms, Social Influences, Regulatory Targets

Abstract:
Private equity offsets are a partial solution to the difficult justice issues raised on the global level by climate change. Equity offsets allow individuals to follow their moral intuitions about the global differences in carbon emissions and the impact of global warming on individual lives. An active equity offset market could precede a post-Kyoto international agreement for global emissions reductions and could enhance the prospects for the adoption of such an agreement.

Climate change, justice, equity, global private governance, global public governance, international law

Abstract:
In this article, we explore the implications of this literature for understanding the relationship between climate change policies and consumption. We identify a number of ways in which accounting for the implications of the new happiness literature could lead to laws and policies that influence consumption in ways that increase the prospects for reducing greenhouse gas emissions in developed and developing countries. We do not examine every nuance of the growing happiness literature, but we provide a brief introduction and observations that we hope will stimulate further efforts by academicians and policymakers.

happiness, life satisfaction, subjective well-being

Abstract:
Individuals are the largest source of dioxin emissions, contribute almost one-third of all ozone precursor emissions, and are a far larger source of several other air toxics than all large industrial sources combined. Thus, after more than 30 years of regulation largely directed at industry, individual behavior has emerged as a leading source of pollution. Professor Michael P. Vandenbergh argues that treating individual behavior as a discrete source of pollution can lead to the development of viable, innovative regulatory instruments that have the prospect of achieving pollution reductions at a relatively low cost. The creation of an individual toxic release inventory, for example, is one such tool. Drawing on the work of norms scholars and leading social psychologists, Professor Vandenbergh argues that environmental norm activation theory can identify the information that is most likely to induce changes to environmental behavior and can help policymakers develop new tools for inducing such change.

environmental law, regulation, social norms, social influences, regulatory targets, pollution

Abstract:
Professors Bressman and Vandenbergh respond to the comments of Sally Katzen on their article presenting and analyzing results from an empirical study of the top political appointees at the Enviromental Protection Agency (EPA) during the William Clinton and George H.W. Bush administrations. In their previous article, Professors Bressman and Vandenbergh examined White House involvement in EPA rulemaking during the relevant periods, concluding that it may be a more complex and less positive phenomenon than previous studies have acknowledged. In this reply, the authors reinforce why the EPA is an important agency to study for information about White House involvement in agency rulemaking, and why it matters that multiple offices and individuals within the White House are involved in agency rulemaking.

agency, administrative, environment, president, OMB, OIRA, accountability, regulation, regulatory, rulemaking, empirical, executive, efficiency, efficacy, cost-benefit analysis

Abstract:
We have been asked to examine climate change justice by discussing the methods of allocating the costs of addressing climate change among nations. Our analysis suggests that climate and justice goals cannot be achieved by better allocating the emissions reduction burdens of current carbon mitigation proposals — there may be no allocation of burdens using current approaches that achieves both climate and justice goals. Instead, achieving just the climate goal without exacerbating justice concerns, much less improving global justice, will require focusing on increasing well-being and inducing fundamental changes in development patterns to generate greater levels of well-being with reduced levels of material throughput. We identify several core characteristics of the public and private policy architectures and initiatives necessary to accomplish this task. We also propose examples of short- and long-term initiatives. Our near-term approach recognizes that a focus on public law remedies and nation-states is necessary but not sufficient. We suggest a feasible new mechanism, equity micro-offsets, that could reduce emissions while improving well-being among the poor. Equity micro-offsets can harness altruistic preferences, market mechanisms, and private oversight to reduce emissions and increase well-being in poor countries. Equity micro-offsets also suggest the nature of the long-term political, social, and economic macro-transformation that may be necessary. From household cook stove initiatives to policy architectures that include forestry, agriculture, and other overlooked sectors, achieving climate and justice goals will require transformative approaches, not just improved cost allocations.

climate change, greenhouse gases, environmental law, environmental policy, international agreements, social justice, environmental justice, microfinance, and offsets