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Vanderbilt Law Review

First Page

515

Abstract

"A cardinal principle in dealing with every type of legal arrangement is to keep steadily in view the kinds of people to whom the directions of the arrangement in question are initially addressed-who the people are, in other words, who are expected to act or refrain from acting in accordance with the arrangement if it works successfully, and under what circumstances they are expected to act."

If asked to envision a polluter, most of us would describe a tall stack from a large industrial facility billowing smoke or a pipe releasing foaming liquid into a stream. The environmental laws and academic commentary of the last thirty years reflect this common conception. With few exceptions, the environmental laws enacted since the 1970s have directed command and control requirements at large industrial sources of pollution. Similarly, in law reviews, books and congressional hearings, advocates of command and control regulation have battled with economic incentive enthusiasts over the optimal measures for regulating large industrial sources. The participants in this debate differ on the effectiveness of various regulatory instruments and the need for regulatory reform, but they share an important, although often unspoken, premise: that the principal sources of pollution are large industrial facilities and the principal victims are individuals.

This Article suggests that the reality today is quite different. We are polluters. Each of us. We pollute when we drive our cars, fertilize and mow our yards, pour household chemicals on the ground or down the drain, and engage in myriad other common activities. Although each activity contributes minute amounts of pollutants, when aggregated across millions of individuals, the total amounts are stunning. Industrial sources continue to be major sources of pollution, and other important pollution sources exist, but individuals are now the largest remaining source of many pollutants. The time has come to focus attention in their direction. Treating individuals as regulated entities, however, will require fundamental changes in the theories and methods of environmental law. Moreover, the need to focus on individual behavior exists across a wide range of health, safety and other areas, and will require substantial modifications in many aspects of the post-New Deal regulatory state.

This Article proceeds in six Parts. After the introduction in Part I, Part II examines the environmental regulatory debate. The Part demonstrates the extent to which the debate has focused on large industrial sources, and it explores the importance of source identification. Although a central issue in the debate is the identification of optimal regulatory instruments, source identification is often overlooked and is at least as important. In some cases, environmental harms are caused by both individual and industrial emissions, and environmental goals may be achieved at lower cost if changing individual behavior is one of the options available to regulators. In other cases, individuals and households are the sole or principal remaining source of pollution, and changes in individual behavior may be the only means of achieving environmental goals.

Part III then defines individuals and households as a discrete source category and provides the first profile of the quantities of pollutants released from this source category. The failure to conceive of individuals and households as a source category has resulted in a virtual wasteland of data regarding the contributions of individual behavior to pollutant releases and environmental harms. Empirical studies rarely collect data on the pollution attributable to individual behavior, and government reports rarely present the data that are collected in a way that identifies individuals as a source category. As a result, academicians, regulators, and the public have a limited understanding of the emissions and harms caused by individual behavior.

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