Academic journal article Vanderbilt Law Review

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

Academic journal article Vanderbilt Law Review

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

Article excerpt

I. Introduction ....................1566

II. The Promise of Personal Environmental Information ....................1575

A. Informational Regulation /Norm Management ....................1577

B. Market ....................1585

C. Architecture.................... 1591

D. Mandates ....................1593

III. The Perils of Personal Environmental Information: Privacy Harms ....................1595

A. Identifying Privacy Harms.................... 1597

B. Environmental Privacy ....................1603

IV. Illustrating Trade-Offs: How Privacy-Driven Limits on Emerging Technologies Can Constrain the Regulatory Potential of Personal Environmental Information ....................1609

A. Radio Frequency Identification ....................1609

B. Smart Meters ....................1613

1 Customer Opt-Out ....................1616

2. Privacy Policies ....................1617

C. Fourth Amendment.................... 1622

V. Conclusion ....................1628

I. Introduction

A variety of modern technologies reveal individual behaviors that have environmental consequences with increasing clarity.1 Smart meters and related technologies detect detailed information about when and how individuals use electricity within the home.2 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.3 Regulators use aerial imagery and geographic information systems ("GIS") technology to detect violations of local building codes4 and the illegal filling of wetlands.5 Interactive "ecomaps" allow city residents to compare environmental performance by zip code.6 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).7

At the same time that the technological capability to identify individual behaviors with environmental consequences (or environmentally significant individual behaviors8) is growing dramatically, many are also calling for environmental law and policy to reduce the environmental harms that those behaviors cause or exacerbate.9 Indeed, the ability to detect and better understand the contributions of individuals to environmental harms may itself spur action to address those harms - "[a]s with other cases where a 'do nothing' response has been presumed to be appropriate, the logic for ignoring small harms collapses as the cost of tracking and internalizing them drops."10 Scholars suggest that a variety of strategies, some relatively novel in the context of environmental law, will likely be needed to effectively regulate environmentally significant individual behaviors.11 These strategies for influencing individual behaviors can be grouped by type.12 Government can indirectly regulate environmentally significant individual behaviors by directly regulating the market (for example, subsidizing the purchase of hybrid cars or taxing the purchase of SUVs), architecture (for example, adopting smart growth zoning laws), or norms (for example, funding a public information campaign).13 Government can also directly regulate environmentally significant individual behaviors by imposing mandates on individuals (for example, passing anti-idling laws that impose civil fines for excessive idling).14

Every modality for regulating environmentally significant individual behaviors could benefit from the kind of information about those behaviors that technology is increasingly making available.15 For example, smart meters can provide households with more finegrained information about electricity use, thereby supporting voluntary reductions in electricity use.16 The explosion of access to individual environmental data thus presents a great opportunity for environmental law and policy. …

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