Duke Law Journal
Emerging environmental problems and technologies, coupled with the existence of mature regulatory regimes governing most industrial sources of pollution, reveal with new clarity the harms that individual behaviors can inflict on the environment. Changing how individuals impact the environment through their daily behaviors, however, requires a reorientation of environmental law and policy and a balancing of government prerogatives with individual liberty. A growing body of legal scholarship recognizes the environmental significance of individual behaviors, critiques the failure of 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 as a policy tool for changing environmentally significant individual behaviors because of a widely shared view (1) that detection and enforcement of such mandates would pose insurmountable technical, administrative, and cost barriers and (2) that the application of mandates to individuals would trigger insurmountable objections to their intrusive effect, essentially so offending notions of liberty and privacy that they could not be adopted or enforced.
But there are reasons to believe that the cost and feasibility of imposing mandates on environmentally significant individual behaviors may be less daunting than widely imagined. Notably, intrusion objections have yet to be subjected to critical examination. A better understanding of whether, when, and why mandates on environmentally significant individual behaviors might trigger fatal intrusion objections would help to assess mandates as a policy tool for changing environmentally significant individual behaviors and would offer 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 as it applies to the use of individual mandates to change environmentally significant behaviors. Part I surveys prior and existing laws aimed at individual behaviors and 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 might give rise to intrusion objections. Part III builds on Parts I and II to offer a more nuanced understanding of the intrusion objection and suggests some principles to guide the consideration and development of mandates on environmentally significant individual behaviors going forward. Part III proposes as an example an energy-waste ordinance designed to avoid intrusion objections.
The Article concludes that the obstacle to direct regulation of environmentally significant individual behaviors posed by the intrusion objection is both narrower and broader than presently recognized. The obstacle posed by the intrusion objection is narrower because although the enforcement of mandates against some primarily in-home behaviors may occasion insurmountable privacy objections, other environmentally significant individual behaviors can be and are regulated without triggering these objections. The obstacle posed by the intrusion objection is broader because perceived government intrusion is just one of the costs-along with monetary costs and inconvenience-that regulation can impose on individuals. The more salient variable for purposes of understanding the objections to regulating environmentally significant individual behaviors is transparency: direct regulation, as opposed to indirect regulation, tends to make all of the costs of regulation more transparent, an effect that may invite public resistance.
Katrina Fischer Kuh,
When Government Intrudes: Regulating Individual Behaviors that Harm the Environment, 61 Duke L.J. 1111
Available at: http://scholarlycommons.law.hofstra.edu/faculty_scholarship/75