Personal Environmental Information: The Promise and Perils of the Emerging Capacity to Identify Individual Environmental Harms

A variety of modern technologies reveal individual behaviors that have environmental consequences with increasing clarity. Smart meters and related technologies detect detailed information about when and how individuals use electricity within the home. Radio frequency identification ( RFID ) chips embedded in recycling collection bins track household recycling behaviors, including everything from whether the household is recycling to whether its members properly separate their recyclables. Regulators use aerial imagery and geographic information systems ( GIS ) technology to detect violations of local building codes and the illegal filling of wetlands. Interactive ecomaps allow city residents to compare environmental performance by zip code. Even information generated for entirely distinct purposes (for example, Global Positioning System ( GPS ) devices for vehicles) yields insights into environmental behaviors (for example, driving behavior related to gas consumption). At the same time that the technological capability to identify individual behaviors with environmental consequences (or environmentally significant individual behaviors) is growing dramatically, many are also calling for environmental law and policy to reduce the environmental harms that those behaviors cause or exacerbate

Symposium - Supply and Demand: Barriers to a New Energy Future

Like many fields, energy law has had its ups and downs. A period of remarkable activity in the 1970s and early 1980s focused on the efficiencies arising from deregulation of energy markets, but the field attracted much less attention during the 1990s. In the last decade, a new burst of activity has occurred, driven largely by the implications of energy production and use for climate change. In effect, this new scholarship is asking what efficiency means in a carbon- constrained world. Accounting for carbon has induced scholars to challenge the implicit assumption of the early scholarship that the price of energy reflects all important externalities, and that efficiency therefore can be assumed to mean the generation of the most energy at the lowest cost. Accounting for carbon also has contributed to the growing nexus between energy and environmental law, and has called on practitioners, regulators, and scholars to develop new regulatory solutions that integrate these previously distinct areas. This reconceptualization of energy law in light of carbon constraints has inspired two important areas of scholarship. The Vanderbilt Energy, Environment and Land Use Program, the Vanderbilt Climate Change Research Network, and the Vanderbilt Law Review organized this Symposium, Supply and Demand: Barriers to a New Energy Future, to address both areas. Robert Socolow\u27s keynote address sets the stage for the articles that follow by explaining the urgency and priority of reducing carbon emissions. Socolow\u27s address draws on the literature from numerous disciplines to demonstrate that climate change involves hard truths, and he argues that we must become better at telling those truths to ourselves

Supply and Demand: Barriers to a New Energy Future

Like many fields, energy law has had its ups and downs. A period of remarkable activity in the 1970s and early 1980s focused on the efficiencies arising from deregulation of energy markets, but the field attracted much less attention during the 1990s. In the last decade, a new burst of activity has occurred, driven largely by the implications of energy production and use for climate change. In effect, this new scholarship is asking what efficiency means in a carbon-constrained world. Accounting for carbon has induced scholars to challenge the implicit assumption of the early scholarship that the price of energy reflects all important externalities, and that efficiency therefore can be assumed to mean the generation of the most energy at the lowest cost. Accounting for carbon also has contributed to the growing nexus between energy and environmental law, and has called on practitioners, regulators, and scholars to develop new regulatory solutions that integrate these previously distinct areas. This brief essay introduces the papers published in the Vanderbilt Law Review symposium issue, Supply and Demand: Barriers to a New Energy Future (2012)

President Trump, the New Chicago School and the Future of Environmental Law and Scholarship

Recent presidents including Bill Clinton, G. W. Bush, and Barack Obama have refined how environmental law has been enacted and carried out. Under President Trump, the scope of public environmental law will most certainly narrow. It seems likely that the future of environmental law will depend not upon traditional federal command-and-control legislation or executive branch maneuvering, but instead upon activating environmentalism through expanded substantive areas and innovative regulatory techniques that fall outside the existing, traditional norms of environmental law and legal scholarship. This chapter is an attempt to acknowledge this monumental change, recognizing that these barriers to traditional environmental regulation have and will continue to force an expansion in the boundaries of environmental law and legal scholarship, and in our approaches to environmental regulation. Specifically, the chapter suggests the following in response to the lack of new “traditional” environmental law: (1) environmental law will continue to expand as a discipline and scholarly area of inquiry to include new subfields outside the traditional fields of air quality, water quality, and pollution control to attack environmental problems; and (2) environmental law will continue to focus on alternative methods of environmental regulation by expanding regulatory techniques, expanding the notion of what can be considered a regulated entity beyond that of large institutional stationary sources, and – in light of the new presidential administration – moving away from public environmental regulation and toward private environmental governance

How Smart Is Too Smart?: How Privacy Concerns Threaten Modern Energy Infrastructure

Smart meters are integral to the health of our electric grid and are critical to a reliable, affordable, and efficient energy economy. Yet, collection of smart meter data is raising privacy concerns that are inspiring pockets of resistance to smart meter installation around the country. The fact that these data, like many other kinds of personal information, can and often do flow to the government should not prevent their collection and use. It is critical for environmental and energy regulators to have access to this data to maximize the potential of our energy system. On the state level, several legislatures and Public Utility Commissions (PUCs) have enacted a variety of rules and regulations designed to balance privacy concerns with smart grid goals. But by looking beyond trade-offs between privacy and smart meter installation, this Note recognizes an opportunity to protect reasonable expectations of privacy without hampering the ability of the smart grid to reach its full potential. This can be accomplished by shifting the conversation from regulation of smart meter installation to regulation of smart data distribution

Reconceiving the Internal and Social Enforcement Effects of Expressive Regulation

As political resistance to traditional forms of regulation has increased, regulators have turned to the social and behavioral sciences to identify new and better regulatory tools. One of these new tools is expressive regulation. Expressive regulation harnesses the internal and social enforcement mechanisms of community norms as a means of changing individual behavior. Expressive regulation holds significant promise for influencing many different types of behaviors, and its low administrative and enforcement costs are particularly appealing in the current political climate. However, the use of expressive regulation is hampered by a well-entrenched belief in legal scholarship that social enforcement of norms is available only in small, close-knit communities and ineffective in the case of large-group cooperation problems. This Article reconsiders the divide between social and internal enforcement. It argues that regulatory intervention can overcome the limitations to social enforcement in large groups, and describes the way in which such regulation can do so. The insights it generates are readily adaptable to a wide variety of situations in which large-group cooperation problems exist

Making It Usable Again: Reviving the Nation’s Domestic Recycling Industry

This Article describes the major shortcomings of existing US federal, state, and local laws related to the recycling of solid waste; explains why these deficiencies are more costly to the US today than ever before; and identifies a set of specific policy strategies capable of supporting the development of a modernized, efficient, and profitable domestic recycling system. The Article ultimately recommends a multi-faceted approach to improving the nation’s domestic recycling programs that could ultimately usher in a new era of sustainable and cost-justifiable US recycling. Section I of this Article describes the history and development of US recycling programs, outlining how the nation became highly dependent on China to process much of its recyclable solid waste and how new Chinese solid waste importation restrictions have created solid waste disposal crises across the US. Section II highlights how major gaps and deficiencies in existing US recycling policies have hindered the development of adequate domestic recycling infrastructures and systems. Section III examines various policies and actions that private companies, municipalities, states, and the federal government are now considering or employing in efforts to address the nation’s recycling crisis. Section IV then proposes several specific strategies capable of finally promoting the development of a cost-effective and sustainable domestic recycling system

Energy Consumption Data: The Key to Improved Energy Efficiency

This Article explores recent efforts that federal, state, and local governments have taken to create regulatory frameworks to collect energy consumption data and make it available to consumers and, in some cases, to the public. Part II explains the nature of energy consumption data, the problems with not having such data readily available to consumers and policymakers, and the benefits associated with making it available to a wider range of potential users. Part III explores developing federal, state, and local policies governing energy consumption data, including how policymakers have attempted to address some of the privacy and other concerns associated with such data. Part IV evaluates these efforts and attempts to provide guidance to policymakers on how to develop more robust regulatory frameworks to help capitalize on the potential energy efficiency benefits associated with increased collection, evaluation, and disclosure of energy consumption data

Regulatory Design in Context

This paper offers what we hope is a constructive contribution to the debate about whether legal scholarship is (in)sufficiently tethered to the real world. To the extent there is a disconnect, we believe neither scholars nor the real world of governance are necessarily at fault. Instead, the disconnect stems from a failure to forge connections between theoretical constructs in the academic literature and their applicability to real world conditions. In part, this article is an effort to make such connections through close attention to context in regulatory design. In an insightful recent article, Agencies as Litigation Gatekeepers, Professor David Freeman Engstrom offers a conceptual framework for reorienting the literature on regulatory enforcement by shifting the focus from a choice between public and private enforcement to analysis of how best to coordinate multiple, overlapping, and interdependent public and private enforcers by vesting in federal agencies “gatekeeping authority” over private enforcement lawsuits. Professor Engstrom discusses theoretical concerns about allowing private actors to bring enforcement cases, and the challenges present in designing welfare-maximizing gatekeeping regimes. Professor Engstrom suggests design options for rationalizing public and private enforcement lawsuits through a public “gatekeeping” scheme that range from empowering agencies to be “extremely interventionist” gatekeepers to restricting them to a much more limited role in shaping private enforcement efforts. Our article evaluates and builds on Professor Engstrom’s important effort to rationalize government and private enforcement of regulatory norms by considering his effort in the context of challenges facing government enforcers in the real world, and the Environmental Protection Agency (EPA) in particular. We suggest that agencies such as EPA confront at least five design challenges in developing pragmatic enforcement strategies: the inter-related character of different components of the regulatory process; the hybrid character of contemporary governance efforts; the importance of confronting “reality” in the form of past performance and future challenges and opportunities; the dynamic character of contemporary governance and responses to it; and the salience of possible design changes, which suggests the need to prioritize design improvements. Our view is that pursuing sensible regulatory design, including mechanisms of the sort Professor Engstrom proposes, requires a sophisticated understanding of the regulatory landscape and that our conceptual framework provides a useful typology for developing such an understanding. In short, our article attempts a synthesis of Professor Engstrom’s valuable insights about the value of optimizing regulatory enforcement initiatives with our own conception of the manner in which the regulatory state operates in order to provide a contextually-based, pragmatic framework for optimizing regulatory design to promote compliance with regulatory norms