From Smokestack to SUV

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.