When Government Intrudes: Regulating Individual Behaviors that Harm the Environment

62 Pages Posted: 13 Feb 2011 Last revised: 24 Mar 2011

Date Written: July 12, 2010

Abstract

Emerging environmental problems and technologies, coupled with the existence of mature regulatory regimes governing most industrial sources of pollution, combine to reveal with new clarity the harms that individual behaviors and lifestyles inflict on the environment. However, changing how individuals impact the environment through their daily behaviors requires a reorientation of environmental law and policy and a balancing of government prerogatives and individual liberty. A growing body of legal scholarship recognizes the environmental significance of individual behaviors and lifestyles, critiques the failure of environmental law and policy to capture harms traceable to individuals, and suggests and evaluates strategies for capturing individual harms going forward. In this discussion, mandates on individuals have been largely dismissed or deemphasized as a potential policy tool for changing environmentally significant individual behaviors because of a widely shared view that (1) detection and enforcement of such mandates pose insurmountable technical, administrative, and cost barriers and (2) that their application to individuals would trigger insurmountable intrusion objections.

There are, however, reasons to believe, as to the first noted objection to the use of mandates, that the cost and feasibility of imposing mandates on environmentally significant individual behaviors may be less daunting than widely anticipated. With respect to the second objection (the intrusion objection, or the idea that mandates on individually significant environmental behaviors would so offend notions of individual liberty and privacy that they cannot be adopted or enforced), that objection to the use of mandates has yet to be subjected to critical examination to determine its source, scope, intransigence, or otherwise evaluate with particularity the obstacle that it (may) pose. Better understanding of whether, when and/or why mandates on environmentally significant behavior may trigger objections on the ground that they are “intrusive” would help to assess mandates as a policy tool for changing environmentally significant individual behaviors and could also provide guidance about how mandates could be structured to avoid such objections.

This Article undertakes an initial effort to better define and understand the intrusion objection to the use of mandates to change environmentally significant individual behaviors. Part I surveys prior and existing laws aimed at or impacting individual behavior and/or associated environmental harms to develop a rough sense of when such regulations have (and have not) triggered what could be characterized as intrusion objections. Part II then looks to substantive due process jurisprudence for further guidance about when and why government restrictions on individual freedom give rise to intrusion objections. Part III builds on Parts I and II to suggest some principles to guide the consideration and development of mandates on environmentally significant individual behaviors going forward and proposes an energy waste ordinance that is both technically and administrative feasible and designed to avoid intrusion objections.

Keywords: Environmental Law, Behavior, Regulation

Suggested Citation

Kuh, Katrina Fischer, When Government Intrudes: Regulating Individual Behaviors that Harm the Environment (July 12, 2010). Duke Law Journal, Forthcoming, Hofstra Univ. Legal Studies Research Paper No. 11-12, Available at SSRN: https://ssrn.com/abstract=1760453

Katrina Fischer Kuh (Contact Author)

Pace Law School ( email )

78 North Broadway
White Plains, NY 10603
United States

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