Environmental Privacy

Abstract

Policymakers and scholars recognize that individuals comprise an important source of environmental harm. Individuals’ decisions and actions — running a washing machine, driving to work, purchasing a pair of blue jeans — impose direct and indirect impacts on the environment that, while often individually de minimis, collectively impose significant harms. Environmental statutes, however, rarely target these environmentally significant individual behaviors; regulatory attention focuses primarily on industrial sources of environmental harm. Reorienting law and policy to more directly address and limit the harms arising from environmentally significant individual behaviors could yield significant benefits. Doing so will, however, require new regulatory approaches and better information about environmentally significant behaviors. Before we can deploy norm management to encourage voluntary behavior change by educating individuals about the environmental harms occasioned by their behavior, we must understand those behaviors and their environmental effects, as well as communicate them to individuals. Before we can use a market approach to charge individuals for consumption of a public environmental good, we must be able to discern and track how individuals consume that good. To effectively impose a mandate prohibiting behavior, we must have some means to identify violations and enforce the mandate. More generally, better information about environmentally significant individual behaviors and their impacts may be crucial for generating the personal and political will to support the adoption and implementation of policies directed to those behaviors. And the capacity for developing information about environmentally significant individual behaviors and deploying that information in support of regulation has grown rapidly with advances in technology. Remote sensing, for example, is being deployed in support of environmental regulation in a number of contexts.

Individuals are thus increasingly recognized as an important source of environmental harm that warrants greater policy attention; designing and implementing effective policies will require information about environmentally significant individual behaviors; and technology makes it feasible to develop such information. Developing information about environmentally significant individual behaviors can, however, occasion significant concerns about privacy. In light of the growing regulatory and political imperative to identify, understand, and address environmentally significant individual behaviors and the emerging technical capacity for doing so, it will become increasingly necessary for environmental policy to navigate privacy issues. This paper looks to nuisance doctrine, surveillance under environmental statutes and Fourth Amendment cases arising in implementation of fish and game laws (the hunter enforcement cases) to better understand our experience to date balancing the need for environmental information with privacy. The hunter enforcement cases provide a particularly useful analogue for thinking about privacy balancing with respect to environmentally significant behaviors. As with other environmentally significant behaviors, the conduct of an individual hunter will generally give rise to an environmental harm (for example, impact the health of game populations) only when aggregated with the actions of others; moreover, the hunter enforcement cases provide a context where regulation is being applied primarily to individuals, as opposed to corporate entities. The hunter enforcement cases suggest potentially useful guidance for policymakers and courts navigating privacy balancing in the context of environmentally significant behaviors. Notably, although aggregation is required for the regulated conduct to give rise to an environmental harm and privacy intrusions are incurred by individuals, privacy balancing is nonetheless often struck in favor of regulatory enforcement in the hunter enforcement cases. This, in turn, suggests the possibility that privacy balancing might likewise favor of regulation with respect to other environmentally significant behaviors, provided that the state interest in regulation can be firmly established.

JEL Classification: K42, K32