Capturing individual harms

Harvard Environmental Law Review

Volumn 35, Issue 1, 2011, Pages 155-204

  Kuh, Katrina Fischer ^a  

^a HOFSTRA UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CLIMATE CHANGE; ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL POLICY; FEDERAL SYSTEM; GREENHOUSE GAS; LAW ENFORCEMENT; LOCAL GOVERNMENT; POLICY IMPLEMENTATION;

EID: 79958853123     PISSN: 01478257     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (423)

1. Jonathan H. Adler, Fables of the Cuyahoga: Reconstructing a History of Environmental Protection, 14 FORDHAM ENVTL. L. REV. 89, 103-05 (2002) (observing that burning was not uncommon in heavily polluted "industrial rivers")
2. see also The Cities: The Price of Optimism, TIME, Aug. 1, 1969, at 41 (providing this now-famous description of the Cuyahoga River: "Chocolate-brown, oily, bubbling with subsurface gases, it oozes rather than flows.").
3. The harms from these smelters occasioned two notable nuisance cases, Madison v. Ducktown Sulphur, Copper & Iron Co., 113 Tenn. 331 (1904
4. and Georgia v. Tenn. Copper Co., 206 U.S. 230 (1907).
5. See M. L. Quinn, Industry and Environment in the Appalachian Copper Basin, 1890-1930, 34 TECH. & CULTURE 575, 582-83 (1993).
6. PERCIVAL ET AL., ENVIRONMENTAL REGULATION LAW, SCIENCE, AND POLICY 311 (5th ed. 2006) (referencing the discovery of contamination at Love Canal and the discovery of a cancer cluster in an area of Woburn, Massachusetts with heavily contaminated groundwater).
7. For example, to avoid a criminal or financial penalty, an industrial facility must evaluate the wastes that it generates; it must also label, ship, and dispose of waste deemed hazardous in accord with a complex set of regulations. Failure to comply risks EPA prosecution, citizen suits, and public outrage. Resource Conservation and Recovery Act §§ 3008, 7002, 42 U.S.C.
8. §§ 6928, 6972 (2006) [hereinafter "RCRA"]. Individuals, meanwhile, legally discard an estimated 1.6 million tons of household hazardous wastes annually, destined primarily for municipal landfills where they can leach and contaminate ground and surface water. Michael P. Vandenbergh, From Smokestack to SUV: The Individual as Regulated Entity in the New Era of Environmental Law, 57 VAND. L. REV. 515, 542-43 (2004)
9. [hereinafter Vandenbergh, From Smokestack to SUV] (estimating the volume of hazardous waste disposed of by individuals based on data contained in a 2003 EPA draft report on the environment). Household hazardous waste disposed of by individuals is not considered "hazardous" for purposes of RCRA. 40 C.F.R. § 261.4(b)(1) (2009) (exempting "household waste," or "any material . . . derived from households" from being deemed hazardous waste under RCRA).
10. Vandenbergh, From Smokestack to SUV, supra note 4, at 546-72 (identifying specific volumes of pollutants traceable to individual behaviors). These types of environmental harms, arising from small contributions from numerous individual sources, are frequently referred to as "second generation" environmental problems. Michael P. Vandenbergh, The Social Meaning of Environmental ommand and Control, 20 VA. ENVTL. L.J. 191, 191 (2001) [hereinafter Vandenbergh, Environmental Command and Control].
11. Hope M. Babcock, Assuming Personal Responsibility for Improving the Environment: Moving Toward a New Environmental Norm, 33 HARV. ENVTL. L. REV. 117, 120-21 (2009) [hereinafter Babcock, Assuming Personal Responsibility] (footnotes omitted).
12. Id.
13. Id.
14. Id.
15. See also James Salzman, Sustainable Consumption and the Law, 27 ENVTL. L. 1243, 1250, 1255-56 (1997) (explaining the connection between consumption and environmental harm)
16. Id. at 122-23 (describing the environmental impacts of consumption)
17. Paul Ekins, The Sustainable Consumer Society: A Contradiction in Terms?, 3 INT'L ENVTL. AFF. 243, 249 (1991) ("[T]he environmental crisis . . . must be laid squarely at the door of northern industrial consumer lifestyles and their imitations now in nearly all countries of the Third World.").
18. generally Vandenbergh, From Smokestack to SUV supra note 4, at 539-40 (declining to include environmental harms arising from the production of consumer goods and services in the tally of harms attributable to individuals to avoid over-inclusiveness, but recognizing that these harms could be attributed to individuals).
19. Salzman, supra note 10, at 1250, 1256 (1997
20. Level of consumption refers to the amount, or volume, of consumption.
21. Id. at 1253
22. Patterns of consumption refer to "how well we consume." Id. For example, two families may use the same number of rolls of paper towels in a given year, but if one family uses paper towels made from recycled materials and the other does not, the consumption will have different impacts on the environment.
23. Id. at 1255-56.
24. By some estimates, it requires 10,000 liters of water to produce one pair of jeans. Samiha Shafy, H20 Woes: Measuring the Damage of Our 'Water Footprint,' SPIEGEL ONLINE (Aug. 26, 2009), http://www.spiegel.de/international/ world/0,1518,644867,00.html (reporting the results of a water footprint analysis conducted by Dutch hydroengineer Arjen Hoekstra). It also takes up to 220 pounds of carbon emissions to produce one pair of leather boots
25. Jeffrey Ball, Six Products, Six Carbon Footprints, WALL ST. J., Mar. 1, 2009, at R1. With respect to energy use, levels of consumption have far eclipsed improvements in patterns of consumption (energy efficiency) because "[o]ver the past 30 years we have built bigger homes, stocked them with a multitude of electricity-drawing gadgets and appliances, bought more and larger refrigerators and televisions, and purchased more and larger personal transportation vehicles."
26. Jack N. Barkenbus, Supersizing the American Dream in an Era of Climate Change, 38 Envtl. L. Rep. (Envtl. Law Inst.) 10857, 10861-62 (2008). In 1949, the average single-family home was 1100 square feet, while the average single-family home today is 2500 square feet
27. The typical refrigerator in the 1970s housed 17-18 cubic feet, while the typical refrigerator today has a capacity of 21-26 cubic feet.
28. Id. at 10858-60.
29. Salzman, supra note 10, at 1259-70 (describing policy approaches for addressing con- sumption)
30. John C. Dernbach, Pollution Control and Sustainable Industry, NAT. RESOURCES & ENV'T, Fall 1997, at 101, 147 (recommending that "a cautious approach [to reducing the environmental impacts of consumption] would also include nontechnological approaches that more directly affect lifestyles" but noting that "changes in taxes and subsidies . . . may or may not be tolerable to the public").
31. Doug Kysar & Michael P. Vandenbergh, Introduction: Climate Change and Consumption, 38 Envtl. L. Rep. (Envtl. Law Inst.) 10825, 10827 (2008) (introducing symposium articles speaking to the connection between consumption and climate change and describing the historical lack of attention to consumption from environmental policy, defining the concepts of consumer and consumption, discussing the relationship between law and consumer preferences, and explaining why consumption must now be addressed head on by environmental policy).
32. Vandenbergh, From Smokestack to SUV, supra note 4, at 598-600.
33. Vandenbergh, Environmental Command and Control, supra note 5, at 208
34. Babcock, Assuming Personal Responsibility, supra note 6, at 126.
35. Babcock, Assuming Personal Responsibility, supra note 6, at 119 ("One of the serious challenges to changing behavior is the perception that individual contributions to environmental problems are small and, therefore, inconsequential.").
36. Id. at 130-31 (describing the difficulty overcoming the perception that individual contributions are de minimis).
37. Vandenbergh, Environmental Command and Control, supra note 5, at 208.
38. Id.
39. Babcock, Assuming Personal Responsibility supra note 6, at 128 (discussing the influence of the alarmist and optimistic biases)
40. Vandenbergh, From Smokestack to SUV, supra note 4, at 592.
41. Salzman, supra note 10, at 1255.
42. Id. at 1256.
43. Vandenbergh, From Smokestack to SUV, supra note 4, at 597.
44. Salzman, supra note 10, at 1292.
45. This literature is anchored by the work of Michael P. Vandenbergh.
46. See Kysar & Vandenbergh, Introduction: Climate Change and Consumption supra note 15, at 10827
47. Michael P. Vandenbergh & Anne C. Steinemann, The Carbon-Neutral Individual, 82 N.Y.U. L. REV. 1673, 1724 (2007)
48. Michael P. Vandenbergh, Jack Barkenbus, & Jonathan Gilligan, Individual Carbon Emissions: The Low-Hanging Fruit, 55 UCLA L. REV. 1701 (2008) (identifying individual GHG-emitting behaviors most susceptible to change and suggesting strategies for changing them)
49. Michael P. Vandenbergh, Order Without Social Norms: How Personal Norm Activation Can Protect the Environment, 99 NW. U. L. REV. 1101 (2005) [hereinafter Vandenbergh, Order Without Social Norms] (advocating personal norm management to address individual behavior in negative-payoff, loosely knit group situations)
50. Vandenbergh, From Smokestack to SUV, supra note 4, at 542-43
51. Vandenbergh, Environmental Command and Control, supra note 5, at 191
52. Babcock, Assuming Personal Responsibility supra note 6
53. Hope M. Babcock, Civic Republicanism Provides Theoretical Support for Making Indi- viduals More Environmentally Responsible, 23 NOTRE DAME J.L. ETHICS & PUB. POL'Y 515 (2009) [hereinafter Babcock, Making Individuals More Environmentally Responsible]
54. Hope M. Babcock, Global Climate Change: A Civic Republican Moment for Achieving Broader Changes in Environmental Behavior, 26 PACE ENVTL. L. REV. 1, 12 (2008) [hereinafter Babcock, Achieving Broader Changes] (outlining challenges to changing individual environmental behaviors, arguing that the abstract environmental protection norm must be expanded to embrace personal responsibility, and suggesting that environmental groups take the lead in educating individuals about the environmental effects of their actions)
55. Barkenbus, supra note 13, at 10861-62
56. Andrew Green, Creating Environmentalists: Environmental Law, Identity and Commitment, 17 J. ENV. L. & PRAC. 1 (2006) [hereinafter Green, Creating Environmentalists] (considering the policy ramifications of theories of individual identity choice and commitment development)
57. Andrew Green, Norms, Institutions, and the Environment, 57 U. TORONTO L.J. 105 (2007) (assessing the potential for government to influence environmental values and norms)
58. Andrew Green, Self Control, Individual Choice, and Climate Change, 26 VA. ENVTL. L.J. 77, 81 (2008) (assuming that individuals "have values or norms that favor environmental action," but questioning the individuals' capacity to make choices consistent with such values and norms)
59. Andrew Green, You Can't Pay Them Enough: Subsidies, Environmental Law, and Social Norms, 30 HARV. ENVTL. L. REV. 407 (2006) [hereinafter Green, You Can't Pay Them Enough] (arguing that subsidies may undermine environmental values)
60. Albert C. Lin, Evangelizing Climate Change, 17 N.Y.U. ENVTL. L.J. 1135 (2009) (emphasizing the role of values and evaluating strategies for changing behaviors within the American evangelical community)
61. Salzman, supra note 10, at 1255-56 (explaining the connection be- tween consumption and environmental harm)
62. Jed S. Ela, Comment, Law and Norms in Collective Action: Maximizing Social Influence to Minimize Carbon Emissions, 27 UCLA J. ENVTL. L & POL'Y 93 (2009) (arguing for a national norm campaign to reduce individual GHG emissions that targets highly visible behaviors)
63. See generally Richard B. Stewart, A New Generation of Environmental Regulation?, 29 CAP. U. L. REV. 21, 28 (2001) (characterizing small sources as second generation environmental problems and observing that "discharges from small, non-point or area sources must be significantly curtailed, including those in the consumer, services, and agricultural sectors").
64. E.g., Vandenbergh, From Smokestack to SUV, supra note 4, at 608 ("Perhaps the most important implication of the new focus on individuals as polluters is the need to look beyond the command and control versus economic incentives debate to informational regulation and norm management.")
65. Vandenbergh & Steinemann, The Carbon-Neutral Individual, supra note 26, at 1724 (recommending, with respect to reducing individual carbon footprints, the integration of informational regulation and norm management with traditional regulatory measures, such as "taxes or subsidies, cap-and-trade schemes, standards that regulate the efficiency of consumer products made by industrial firms, and support for new technologies and infrastructure")
66. See generally RICHARD H. THALER & CASS R. SUNSTEIN, NUDGE 188-96 (2008) (recommending a carbon tax or cap and trade approach to controlling greenhouse gases but further suggesting - in light of the present political infeasibility of such approaches - information disclosure designed to reduce individual energy consumption). Research suggests that a single policy tool may be insufficient to change individual and household behavior and that "interventions that combine appeals, information, financial incentives, informal social influences, and efforts to reduce the transaction costs of taking the desired actions" are most effective.
67. Thomas Dietz et al., Household Actions Can Provide a Behavioral Wedge to Rapidly Reduce U.S. Carbon Emissions, 106 Proc. Nat'l Acad. Sci. No. 44, 18452, 18453 (2009).
68. E.g., Babcock, Assuming Personal Responsibility, supra note 6, at 123 (identifying ob- stacles to the use of mandates and concluding that "[i]t is unlikely that Congress will amend our environmental laws to reach individual actions"). As discussed infra note 201 and accompanying text, prior scholarship has identified a possible role for mandates at the local level without subjecting that proposition to more sustained consideration.
69. The analysis captures some, but not all, individual consumption relevant to climate change. It does consider individuals' direct consumption of energy. However, it does not go further and consider the energy required to produce consumer goods and services. As discussed infra note 64 and accompanying text, law-and-norm scholarship has recognized a num- ber of potential benefits of local involvement in norm management efforts.
70. For present purposes, I use the term "local" in its loose, traditional sense to signify communities organized under state government (such as counties and municipalities). I am reminded, however, by the work of Hari Osofsky and others that "what constitutes 'the local' emerges from complex, multiscalar interactions of sociolegal spaces across networks."
71. Hari M. Osofsky, Scaling "Local": The Implications of Greenhouse Gas Regulation in San Bernardino County, 30 MICH. J. INT'L L. 689, 704 (2009).
72. PERCIVAL ET AL., supra note 3, at 103-04 (describing cooperative federalism and ob- serving its employment in the Clean Air Act, Clean Water Act, Safe Drinking Water Act, and RCRA).
73. Craig N. Oren, Getting Commuters Out of Their Cars: What Went Wrong?, 17 STAN. ENVTL. L.J. 141, 191 (1998) (describing cooperative federalism and air pollution control strategies under the Clean Air Act). The adoption, design, and implementation of cooperative federalism strategies has received extensive scholarly treatment. For a good recent overview of federalism considerations in the context of land use
74. see Ashira P. Ostrow, Process Preemption in Federal Siting Regimes, 48 HARV. J. ON LEGIS. (forthcoming Spring 2011).
75. E.g., Daniel C. Esty, Revitalizing Environmental Federalism, 95 MICH. L. REV. 570, 606-07, 623 (1996) (arguing that the characteristics of an environmental problem should dictate the level of government at which it is addressed and identifying benefits of local involvement).
76. Benjamin K. Sovacool, The Best of Both Worlds: Environmental Federalism and the Need for Federal Action on Renewable Energy and Climate Change, 27 STAN. ENVTL. L.J. 397, 429-42 (2008) (reviewing arguments offered in support of devolved federalism, including increased opportunities for local tailoring or "flexibility").
77. Oren, supra note 32, at 191.
78. Id.
79. Compare Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L.J. 1196, 1215 (1977) (arguing for greater centralization of environmental policy, or federal control) with
80. Richard L. Revesz, The Race to the Bottom and Federal Environmental Regulation: A Response to Critics, 82 MINN. L. REV. 535, 536-38 (1997) (defending a presumption in favor of the decentralization of authority to regulate the environment)
81. David E. Adelman & Kirsten H. Engel, Adaptive Federalism: The Case Against Reallocating Environmental Regulatory Authority, 92 MINN. L. REV. 1796, 1798-99 (2008) (arguing for overlapping federal, state, and local authority). For an account that questions traditional views of the utility of local tailoring
82. see Joshua D. Sarnoff, The Continuing Imperative (But Only from a National Perspective) for Federal Environmental Protection, 7 DUKE ENVTL. L. & POL'Y F. 225, 251-57 (1997).
83. List of Participating Mayors, THE U.S. CONFERENCE OF MAYORS, http://usmayors.org/ climateprotection/list.asp (last visited Dec. 1, 2010) (on file with Harvard Law School Library). As of the end of 2009, six hundred U.S. cities had joined ICLEI - Local Governments for Sustainability, an international association of local governments that helps localities achieve sustainability objectives, including climate change mitigation.
84. Global Members, ICLEI - LOCAL GOV'TS FOR SUSTAINABILITY, http://www.iclei.org/index.php?id=11454 (last visited Dec. 1, 2010) (on file with Harvard Law School Library).
85. For an overview of local climate mitigation efforts
86. see J. Kevin Healy, Local Initiatives, in GLOBAL CLIMATE CHANGE AND U.S. LAW 421-43 (Michael B. Gerrard ed., 2007).
87. Adelman & Engel, supra note 37, at 1846-47 (characterizing local climate change miti- gation efforts as being in "direct contravention" to traditional principles of environmental federalism).
88. This scholarship includes (but is by no means limited to): Adelman & Engel, supra note
89. 37, at 1846-49 (using the example of state and local climate change mitigation efforts as support for a theory of adaptive federalism)
90. Kevin L. Doran, U.S. Sub-Federal Climate Change Initiatives: An Irrational Means to a Rational End?, 26 VA. ENVTL. L.J. 189 (2008)
91. Kirsten Engel, State and Local Climate Change Initiatives: What is Motivating State and Local Governments to Address a Global Problem and What Does This Say About Federalism and Environmental Law?, 38 URB. LAW. 1015 (2006)
92. Laura H. Kosloff, Mark C. Trexler, & Hal Nelson, Outcome-Oriented Leadership: How State and Local Climate Change Strategies Can Most Effectively Contribute to Global Warming Mitigation, 14 WIDENER L.J. 173, 204 (2004) (arguing that "we should think of state and local policies and measures as a key source of policy experimentation and learning, as a source of public and corporate education, and as a source of pressure and encouragement to national and international policy development ef forts")
93. Hari M. Osofsky & Janet Koven Levit, The Scale of Networks?: Local Climate Change Coalitions, 8 CHI. J. INT'L L. 409 (2008) (using local climate mitigation efforts to consider how localities function in transnational environmental networks)
94. Sovacool, supra note 34 (providing a comprehensive overview of environmental federalism, critically evaluating state and local efforts to mitigate emissions, and arguing for a strong federal role in responding to climate change)
95. Katherine Trisolini & Jonathan Zasloff, Cities, Land Use, and the Global Commons: Genesis and the Urban Politics of Climate Change, in ADJUDICATING CLIMATE CHANGE: SUBNATIONAL, NATIONAL, AND INTERNATIONAL APPROACHES 80-98 (William C.G. Burns & Hari M. Osofsky eds., 2009).
96. See Engel, supra note 41, at 1023-25
97. Trisolini & Zasloff, supra note 41, at 83-97 (applying urban theory and international relations theory to suggest a variety of explanations for local and state climate mitigation).
98. Engel, supra note 41, at 1023-24.
99. Adelman & Engel, supra note 37, at 1847-48 (critiquing the matching principle and discussing state and local climate initiatives).
100. Thus, the Article does not purport to resolve two key deficiencies of local regulation identified in the environmental federalism literature - the will of local entities to address spillover harms (externalities) or local recalcitrance in implementing federally developed environmental goals. Nor does it seek to resolve significant questions about local resources and capacities
101. See Katrina F. Kuh, Using Local Knowledge to Shrink the Individual Carbon Footprint, 37 HOFSTRA L. REV. 923, 939-41 (2009) (identifying potential limitations on local action, including expertise, resources, and environmental justice concerns). Moreover, it does not consider whether or how local governments possess or could be authorized to undertake some of the policy actions discussed herein, such as the adoption of public information campaigns and mandates aimed at reducing emissions
102. See generally John R. Nolon, In Praise of Parochialism: The Advent of Local Environmental Law, 26 HARV. ENVTL. L. REV. 365, 377-86 (2002) (examining the limited power of local governments to adopt local environmental laws). The Article seeks to persuade that a strong local role is warranted, but does not address how best to achieve and structure that local involvement.
103. Holly Doremus & W. Michael Hanemann, Of Babies and Bathwater: Why the Clean Air Act's Cooperative Federalism Framework Is Useful for Addressing Global Warming, 50 ARIZ. L. REV. 799, 826-27 (2008)
104. see also Thomas D. Peterson, Robert B. McKinstry, Jr., and John C. Dernbach, Developing a Comprehensive Approach to Climate Change Policy in the United States, That Fully Integrates Levels of Government and Economic Sectors, 26 VA. ENVTL. L.J. 227, 266 (2008) (recommending that states and local governments retain control over energy demand reduction efforts because "[m]any of the measures that can be employed to reduce demand from the electric utility industry are best employed at the state and local level").
105. Victor B. Flatt, Act Locally, Affect Globally: How Changing Social Norms To Influence the Private Sector Shows a Path to Using Local Government To Control Environmental Harms, 35 B.C. ENVTL AFF. L. REV. 455, 477-78 (2008).
106. Nolon, supra note 45, at 413. Agenda 21, a detailed blueprint for the implementation of sustainable development adopted at the 1992 Rio Earth Summit, likewise recognizes localities as central to the achievement of sustainable development, explaining that "[l]ocal authorities construct, operate and maintain economic, social and environmental infrastructure, . . . establish local environmental policies and regulations, and assist in implementing national . . . policies. As the level of governance closest to the people, they play a vital role in educating, mobilizing and responding to the public to promote sustainable development." U.N. Conference on Environment and Development, Rio de Janeiro, Braz., June 3-14, 1992, Agenda 21, 28.1, U.N. Doc. A/CONF.151/PC/100/Add ("Because so many of the problems and solutions being addressed by Agenda 21 have their roots in local activities, the participation and cooperation of local authorities will be a determining factor in fulfilling its objectives."). Since 1992, over 6400 local authorities in 113 U.S. counties have become involved in Local Agenda 21 ("LA21") activities. U.N. Dep't of Economic and Social Affairs, Second Local Agenda 21
107. U.N. Doc. DESA/DSD/PL2/BP15 8, (2002), www.un.org/jsummit/html/documents/ backgrounddocs/icleisurvey2.pdf
108. See also Robert R.M. Verchick, Why the Global Environment Needs Local Government: Lessons from the Johannesburg Summit, 35 URB.
109. LAW. 471, 473 (2003) (identifying advantages that local governments have in pursuing sustainable development, including: (1) their proximity to ecological effects; (2) their potential for democratic participation; (3) their ability to integrate different priorities; and (4) their ability to shield against distributional inequalities).
110. E.g., Judi Brawer & Matthew Vespa, Thinking Globally, Acting Locally: The Role of Local Government in Minimizing Greenhouse Gas Emissions from New Development, 44 IDAHO L. REV. 589, 599 (2008)
111. Doremus & Hanemann, supra note 46, at 827-28 (observing that state and local governments "have greater political and practical abilities than the federal government to deal with a substantial share of emissions, particularly those connected to individual behaviors" because "[s]tate and local governments have authority over key infrastructure choices that mediate behavioral decisions and the emission consequences of those decisions")
112. Healy, supra note 39, at 421-43.
113. See generally Lawrence Lessig, The New Chicago School, 27 J. LEGAL STUD. 661, 662-63 (1998) [hereinafter Lessig, The New Chicago School] (identifying four distinct modalities of government regulation of behavior - law (mandates), social norms, markets, and architecture). Notably, Lessig defines architecture broadly to encompass constraints on behavior arising from "features of the world - whether made, or found - [that] restrict and enable in a way that directs or affects behavior" thereby including built architecture as well as a variety of other government-controlled factors.
114. Id at 663.
115. Robert C. Ellickson, The Evolution of Social Norms: A Perspective from the Legal Academy, in SOCIAL NORMS 35 (Michael Hechter & Karl-Dieter Opp, eds. 2001) [hereinafter Ellickson, Evolution of Social Norms] (observing that the new norms scholars "share a common conception of norms . . . as a rule governing an individual's behavior that is diffusely enforced by third parties other than state agents by means of social sanctions")
116. Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 MICH. L. REV. 338, 350 (1997) [hereinafter McAdams, Origin, Development, and Regulation] (distinguishing between obligations and tendencies of behavior)
117. Robert Cooter, Do Good Laws Make Good Citizens? An Economic Analysis of Internalized Norms, 86 VA. L. REV. 1577, 1580 (2000) [hereinafter Cooter, Do Good Laws Make Good Citizens?] ("[A] norm can be defined as an obligation backed by a nonlegal sanction . . . ." (emphasis omitted)).
118. Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903, 912 (1996) (observing that "when social norms appear not to be present, it is only because they are so taken for granted that they seem invisible").
119. E.g., ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1991) [hereinafter ELLICKSON, ORDER WITHOUT LAW] ; ERIC A. POSNER, LAW AND SOCIAL NORMS (2000)
120. Robert D. Cooter, Normative Failure Theory of Law, 82 CORNELL L. REV. 947 (1997)
121. Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 VA. L. REV. 349 (1997) (Pubitemid 127445624)
122. Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943 (1995)
123. [hereinafter Lessig, The Regulation of Social Meaning]; McAdams, Origin, Development, and Regulation supra note 51
124. Sunstein, supra note 52, at 912. For an overview of the legal literature
125. see Ellickson, Evolution of Social Norms, supra note 51, at 35-75.
126. E.g., Babcock, Assuming Personal Responsibility, supra note 6; Babcock, Making Indi-viduals More Environmentally Responsible, supra note 26
127. Babcock Achieving Broader Changes supra note 26, at 12-13
128. Green, Creating Environmentalists, supra note 26
129. Green, Norms, Institutions, and the Environment, supra note 26
130. Green, Self Control, Individual Choice, and Climate Change, supra note 26
131. Green, You Can't Pay Them Enough, supra note 26
132. Lin, Evangelizing Climate Change supra note 26
133. Vandenbergh, From Smokestack to SUV, supra note 4 (criticizing traditional environmental policy's focus on industry and arguing that the current regulatory regime must be reformed to address individual environmentally significant behavior, particularly through the use of norms and informational regulation)
134. Vandenbergh, Barkenbus, & Gilligan, supra note 26
135. Vandenbergh & Steinemann, supra note 26 (advocating a norm campaign grounded in the abstract norm of personal responsibility and designed to support a concrete norm of carbon neutrality)
136. Vandenbergh, Order Without Social Norms, supra note 26
137. Ela, supra note 26 (arguing for a national norm campaign to reduce individual GHG emissions that targets highly visible behaviors).
138. Compare POSNER, supra note 53, at 172-77 (arguing broadly against government inter-vention to change norms)
139. and Ann E. Carlson, Recycling Norms, 89 CALIF. L. REV. 1231, 1299-1300 (2001) (reviewing studies that demonstrate that changing architecture to increase convenience is more effective than norm management for increasing recycling rates and warning against "undue optimism" about the potential for norm management to change behavior)
140. with Ela supra note 26, at 115-16 (arguing that norm management can help to address collective action problems and criticizing what he views as undue "pessimism about social norms").
141. For a defense of the propriety of government engaging in norm management see Sunstein, supra note 52, at 953-67 (rebutting rejections of norm management as paternalistic).
142. But see Ellickson, Evolution of Social Norms supra note 51, at 62 (" [A]lthough the state does have some special capabilities in norm making, it is also by far the most dangerous participant in that process.").
143. Vandenbergh, Barkenbus & Gilligan, supra note 26, at 1704 (describing studies sug- gesting that behavior does not always respond to price signals)
144. see also infra notes 203-04 and accompanying text (identifying the challenges of directly regulating individual behavior).
145. Vandenbergh, From Smokestack to SUV, supra note 4, at 521 (describing the myopic focus on industrial polluters, critiquing the application of traditional regulatory instruments to address harms arising from individual behavior, and proposing a "mix of traditional and new approaches" to regulate individual behaviors that negatively affect the environment).
146. E.g., Ela, supra note 26, at 116-17 ("[W]hile there is no doubt that convenience, economic incentives, and personal norms can outweigh social influences in many cases, this does not mean that social influences have no effects in large-scale environmental collective action problems. Such a conclusion is not only a mistake, but a mistake with consequences, if it leads policymakers to pass up easily available opportunities to improve behavior change through attention to social influences.").
147. See id.
148. see also Vandenbergh & Steinemann, supra note 26, at 1724 (explaining the need to use both norm activation and traditional regulatory measures, "includ[ing] taxes or subsidies, cap-and-trade schemes, standards that regulate the efficiency of consumer products made by industrial firms, and support for new technologies and infrastructure").
149. See, e.g., Babcock, Assuming Personal Responsibility, supra note 6, at 149-50 (charting scholarly disagreements about the proper role of government with respect to norm management).
150. E.g., Robert E. Scott, The Limits of Behavioral Theories of Law and Social Norms, 86 VA. L. REV. 1603 (2000).
151. Michael Hechter & Karl-Dieter Opp, Introduction to SOCIAL NORMS xi, xviii (Michael Hechter & Karl-Dieter Opp, eds., 2001) ("[N]o adequate theory of the emergence of social norms can be said to exist at this juncture.")
152. Green, Norms, Institutions, and the Environment, supra note 26, at 117 ("There is a range of unanswered questions relating to when norms develop spontaneously, the role of particular individuals in the process, and how the context (e.g., the nature of the community or issue) affects the development of the norm.").
153. See, e.g., Babcock, Assuming Personal Responsibility, supra note 6
154. Vandenbergh & Steinemann, supra note 26
155. Ela, supra note 26.
156. See Victor B. Flatt, supra note 47, at 456-57 (advocating local government development of public-private partnerships to protect the environment and positing that "the nature of local governments' relationship to social norms means that local governments can in fact be vehicles for the use of such norms as policy tools")
157. Richard H. McAdams, An Attitudinal Theory of Expressive Law, 79 OR. L. REV. 339, 373-74 (2000) (explaining that, with respect to the expressive function of law, "local legislative bodies have a comparative advantage over state and national bodies because their actions are a stronger signal of the local attitudes that matter most")
158. Sunstein, supra note 52, at 952 ("[A] nation that is concerned about existing norms should exploit the possibilities that exist in a system committed to federalism." (footnote omitted));
159. Vandenbergh, From Smokestack to SUV, supra note 4, at 621 (observing that "[f]or some issues, states and localities may be better positioned to tailor public information campaigns and other informational regulatory efforts to local populations")
160. Michael P. Vandenbergh, Taking Individual Behavior Seriously, 31 ADMIN. & REG. L. NEWS 2, 4 (2005) ("[N]ational norm campaigns may fail if they overlook regional differences in beliefs, norms or even language.")
161. Ela, supra note 26, at 130 (describing the benefits of local implementation of anti-idling laws).
162. See, e.g., Cooter, Do Good Laws Make Good Citizens?, supra note 51, at 1595-96 ("Behind our particular preferences lie more general, abstract preferences.")
163. McAdams, Origin, Development, and Regulation, supra note 51, at 382-86 (explaining the difference between broad and narrow norms)
164. Vandenbergh & Steinemann, supra note 26, at 1706 (observing that "[n]orms scholars have begun to converge on several fundamental understandings regarding norms and norm activation," including "that norms include both specific, concrete norms and generalized, abstract norms" (footnote omitted)).
165. See McAdams, Origin, Development, and Regulation, supra note 51, at 358-65.
166. See, e.g., Vandenbergh & Steinemann, supra note 26, at 1697-98 (identifying barriers that may inhibit behavior change even where a norm is activated).
167. E.g., Carlson, supra note 55, at 1236, 1245 (observing that "[a] number of empirical studies demonstrate that social norms are most likely to emerge and resolve problems of collective action among small, relatively homogenous groups who have repeated interactions with one another and whose economic interests often will be served by the emergent norms")
168. McAdams, Origin, Development, and Regulation, supra note 51, at 388 ("None of the norm conditions are as likely for a society as a closely knit or even loosely knit group, but all may occur.").
169. But see Ela, supra note 26, at 115-23 (arguing that the characteristics of behavior are more important than the characteristics of groups in predicting the influence of norms).
170. E.g., McAdams, Origin, Development, and Regulation, supra note 51, at 397-407 (discussing the expressive function of law).
171. Ela, supra note 26, at 125 ("Selecting the most promising behaviors to target - and the right interventions with which to target them - are key factors in designing such a [normbased individual emissions reduction] program.")
172. see also Michael P. Vandenbergh et al., Implementing the Behavioral Wedge: Designing and Adopting Effective Carbon Emissions Reduction Programs, 40 Envtl. L. Rep. (Envtl. Law Inst.) 10547, 10551 (2010) (recommending that policymakers target actions with both "technical potential (the amount of impact an action has when it is undertaken)" and "behavioral plasticity (the proportion of households that can be induced to take the action by effective policies)")
173. Amanda R. Carrico et al., Costly Myths: An Analysis of Idling Beliefs and Behavior in Personal Motor Vehicles, 37 ENERGY POL'Y 2881, 2882 (2009) (criticizing policymakers' "focus on behaviors" with high elasticity, or potential for environmental impact, and recommending that efforts to achieve voluntary changes in behavior focus more on plasticity).
174. But see Ela, supra note 26, at 100 ("Because so many different individual behaviors contribute to carbon dioxide emissions, a logical approach to creating short-term aggregate reductions is a single national program targeting a number of separate, easily changed behaviors." (citations omitted)).
175. DAVID HUNTER, JAMES SALZMAN & DURWOOD ZAELKE, INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 104 (3d ed. 2007)
176. McAdams, Origin, Development, and Regulation, supra note 51, at 358-66 (setting forth an esteem theory of norm development)
177. see also Green, Norms, Institutions, and the Environment, supra note 26, at 112-13 (comparing and contrasting internal and external norms). Although this dynamic is relevant both to the origination of a norm and an individual's decision to conform behavior to an existing norm, I will focus here on norm origination and discuss norm compliance below.
178. McAdams, Origin, Development and Regulation, supra note 51, at 358, 361-62 (describing the "inherent risk of detection" condition for norm development)
179. see also Ela, supra note 26, at 123 (describing when behavior is visible and noting that behavior can be directly or indirectly visible through discussion or reporting). Of course, some environmentally damaging behaviors that are public may be harder to change precisely because they are intentionally conspicuous
180. See THORNSTEIN VEBLEN, THE THEORY OF THE LEISURE CLASS: AN ECONOMIC STUDY OF INSTITUTIONS 59-60 (Oxford Univ. Press 2007) (1899) (describing the phenomena of "conspicuous consumption" and criticizing the concomitant "conspicuous waste"). Many individual behaviors that increase GHG emissions, such as driving a luxury SUV, may be considered examples of conspicuous consumption. Thus, to change behavior, norm management efforts may need to overcome competing current norms extolling consumption as a sign of social status, perhaps by replacing them with norms that extol "conspicuous non-consumption."
181. See COLIN BEAVAN, NO IMPACT MAN: THE ADVENTURES OF A GUILTY LIBERAL WHO ATTEMPTS TO SAVE THE PLANET, AND THE DISCOVERIES HE MAKES ABOUT HIMSELF AND OUR WAY OF LIFE IN THE PROCESS 141 (2009) ("I keep coming up against the idea that, here in the United States, to be a good citizen is to be an aggressive consumer. To be patriotic is to shop."). Of course, for present purposes, the relevance of visibility is that it renders behavior subject to social norms at all - good or bad. Thus, public behavior presents an opportunity for changing or offering competing norms; with respect to private behavior, social norms (good or bad) may not influence behavior.
182. Vandenbergh, Barkenbus & Gilligan, supra note 26, at 1746 (noting that simply reducing the temperature of a water heater from 140-150 degrees Fahrenheit to 120 degrees Fahrenheit "could produce as much as 1,466 pounds of CO2 emissions reductions per year").
183. Id. at 1744 (noting that a two degree change in thermostat temperature could produce savings ranging from 1000 to 2000 pounds of CO2 emissions per household, depending on, among other things, the source of energy used for heating and cooling, the efficiency of existing equipment, and current temperature settings).
184. One interesting local take on making thermostat settings observable is that adopted by the community of West Bridgford in the United Kingdom. Residents are encouraged to sign a pledge card committing to take five out of a list of environmentally-friendly actions, including "[t]urn thermostat down 1 degree C," and then post the pledge card in their window. The Pledges, WEST BRIDGFORD IN TRANSITION: THE GREENING CAMPAIGN, http://greeningwest bridgford.blogspot.com/2010/04/pledges-please-commit-to-5-of-them-and.html (last visited Dec. 1, 2010) (on file with Harvard Law School Library).
185. But see Ela, supra note 26, at 133 (recognizing that visitors to a home may render some in-home behavior visible, but concluding that "[a]lthough guests can theoretically observe some actions," the "small differences in temperature or upgraded thermostats, are likely to escape guests' notice completely").
186. Vandenbergh & Steinemann, supra note 26, at 1700 tbl. 3 (estimating a possible reduction in total household energy consumption of 20% for purchasing a more efficient car, 4-6% for carpooling with two others, and 2% for altering driving habits).
187. See generally Richard H. McAdams, Signaling Discount Rates: Law, Norms, and Economic Methodology, 110 YALE L.J. 625, 665 (2001) [hereinafter McAdams, Signaling Discount Rates] (contrasting the power of norms in "anonymous cities" and "smaller, more stable communities," and observing that "[l]ife in small towns is more regimented by social norms than is life in large, transient, anonymous urban centers").
188. Ela, supra note 26, at 126 (footnote omitted). While Ela states that observation by many anonymous witnesses may influence driver behavior, he further recognizes the "stronger social influence[ ]" of passengers and those with greater social and physical proximity to the driver, suggesting that observation by one's neighbors would be more powerful than observation by strangers.
189. Id at 127.
190. See generally McAdams, Origin, Development, and Regulation, supra note 51, at 366-67 (explaining that the "intensity" of esteem/disesteem associated with a behavior can vary depending on the number of individuals who engage in the behavior).
191. Green, You Can't Pay Them Enough, supra note 26, at 422 ("It may be particularly hard for third parties to monitor and sanction behavior related to an issue like climate change, which requires individuals to take a broad range of largely non-observable actions (from using the car less to insulating homes). It is much harder to monitor and collectively sanction such activities than it is to sanction littering, which involves a distinct, relatively observable act.")
192. Lin, supra note 26, at 1156 (recognizing that some emission-relevant behaviors, such as purchasing a car or installing solar panels, are observable, but concluding that "many other behaviors, such as the amount of energy use within one's home or the frequency of vehicle use, are much more difficult to monitor and sanction" (footnote omitted)). GHG-emitting individual behaviors may be characterized as high-visibility, lower-visibility, or inherently low-visibility.
193. Ela, supra note 26, at 126-43. Generalizing about the visibility of behavior may, however, miss some local or regional differences. For example, drivers in some communities may be "especially prone to idle in busy waiting areas."
194. Id. at 128. In rural Minnesota, drivers may be most likely to idle in driveways to warm up their cars; in communities located near popular trucking routes, idling may be most common by napping truck drivers at isolated rest stops. Thus, it might be useful to ask where drivers are "especially prone to idle" in a specific community. Notably, Ela seems to appreciate this possibility, observing that some behaviors may not be visible in society at large, but may nonetheless be visible in subgroups, including towns and neighborhoods.
195. Id at 121.
196. Some conclude that campaigns targeting social norms will not succeed in changing environmentally significant individual behavior, both because the behavior might not be readily observable and because, even if observable, the behavior might not occur in closely knit contexts where social sanctions can be imposed.
197. Lin supra note 26, at 1155-56 ("Social norms can serve as effective means of addressing collective action problems where individuals have face-to-face contact with other potential cooperators who can enforce those norms. However, . . . in loose-knit, large-group situations, social sanctions are likely to have little effect. In these circumstances . . . one must rely
198. See generally Ela, supra note 26, at 117 (arguing that "the strength of social influences should vary according to the visibility of behavior - so that interventions which maximize visibility should, other things being equal, also maximize the effect of social influences"), 124 ("[S]ocial influences have the strongest effects where behaviors are most visible," and thus "scarce resources should be directed toward the most visible behaviors first . . . .").
199. Cooter, Do Good Laws Make Good Citizens?, supra note 51, at 1583
200. see also Robert D. Cooter, Three Effects of Social Norms on Law: Expression, Deterrence, and Internalization, 79 OR. L. REV. 1, 7 (2000) [hereinafter Cooter, Three Effects of Social Norms on Law] (differentiating between instances where an individual internalizes a norm and therefore places an "intrinsic value on obeying a norm" and where individuals place only "instrumental value" on norm compliance). The external/esteem/social norms model and internal/personal norms model are sometimes viewed as complementary and sometimes as competing accounts of norm formation and compliance. Compare McAdams, Origin, Development, and Regulation, supra note 51, at 376-81 (reconciling esteem and internalization theories) with POSNER, supra note 53, at 43-44 (2000) (offering a signaling theory of norms and dismissing internalization theories as "methodologically sterile" and "unsatisfying").
201. Paul C. Stern, Information, Incentives, and Proenvironmental Consumer Behavior, 22 J. CONSUMER POL'Y 461, 465 (1999) [hereinafter Stern, Proenvironmental Consumer Behavior].
202. Vandenbergh & Steinemann, supra note 26, at 1697-98
203. see also Cooter, Three Effects of Social Norms on Law, supra note 83, at 6 ("Obeying a norm often costs something in terms of money, time, effort, unpleasantness, or risk. To illustrate, complying with tax law costs money, cleaning up after a dog is unpleasant, shunning someone can be risky, and forbearing from smoking may require effort.").
204. Scott, supra note 61, at 1612 (discussing the competing values and norms weighed by individuals contemplating compliance with a rule barring dogs from a nature trail)
205. Vandenbergh & Steinemann supra note 26, at 1708-09 ("Other social norms also can serve as barriers . . . . [S]omeone . . . may want to show [her affluence] by not being influenced by the cost of home heating, or a business executive may use a large car, air travel, and a large office to demonstrate her importance." (footnote omitted)).
206. Babcock, Assuming Personal Responsibility, supra note 6, at 152.
207. Vandenbergh & Steinemann, supra note 26, at 1708.
208. McAdams, The Origin, Development and Regulation of Norms, supra note 51, at 358.
209. See, e.g., Cooter, Three Effects of Social Norms on Law, supra note 83, at 7-8 ("Obeying a norm often imposes direct costs . . . . In addition, obeying a norm often has instrumental value . . . . Obeying a norm also conveys the benefit of avoiding a social sanction . . . . The net cost of obeying a norm equals the direct costs minus the instrumental benefit.").
210. Sunstein, supra note 52, at 940 (identifying "competing norms, intrinsic value, and effects on self-conception" as, in addition to norms, "other ingredients in choice")
211. Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021, 2031 (1996) (identifying "the intrinsic utility of choice, the reputational utility of choice, and the effects of choice on a person's self-conception").
212. Lin, supra note 26, at 1160-61 (explaining that even individuals who intend to comply with a norm may not do so because "[e]ven if a concrete norm is activated, structural constraints and other external factors can limit behavioral choices and influence individual actions" (footnote omitted))
213. Stern, Proenvironmental Consumer Behavior, supra note 84, at 466 ("When capabilities and constraints strongly predispose for or against action, attitudes and other personal-domain variables matter little in the short run.")
214. Ela, supra note 26, at 127-28 (lamenting that even "high-visibility behaviors" may not be the appropriate target for a norm campaign if they are "costly (in money or time)").
215. Vandenbergh & Steinemann, supra note 26, at 1724 (footnote omitted).
216. Id. at 1699 (referring to these types of behaviors as "low-hanging fruit" and advocating that norm campaigns focus on such behaviors)
217. see also Vandenbergh, Barkenbus & Gilligan, supra note 26, at 1709 (describing the low-hanging fruit criteria).
218. For example, as part of New York City's GreeNYC campaign, the City exhorts citizens to consider selling their cars, explaining: "[i]f you don't drive every day, carsharing is a feasible alternative to owning a car. Sell your vehicle to save yourself money, energy, and the hassle of parking your car in the City." GreeNYC - On the Go, THE CITY OF NEW YORK, http://www.nyc.gov/html/greenyc/html/onthego/onthego.shtml (last visited Dec. 1, 2010) (on file with Harvard Law School Library). This account of barriers and benefits is indelibly shaped by the realities of life in New York City - public transportation is available, parking a car is a significant expense and inconvenience, and so on. An exhortation to sell your car would seem to be an impossibly uphill battle in many other places where the rationales offered in the GreeNYC campaign do not apply.
219. Stern, Proenvironmental Consumer Behavior, supra note 84, at 464 ("[T]he extent to which behavior can be changed by interventions in the personal domain, such as education and information, depends on the strength of contextual forces: There are times and places when personal-domain interventions are likely to be effective and others when they will predictably fail.").
220. Green, Self Control, Individual Choice, and Climate Change, supra note 26, at 89 (footnotes omitted).
221. Green, Norms, Institutions, and the Environment, supra note 26, at 116 (citation omitted). In regard to the background culture with respect to choice of vehicle, consider this description of the residents of Tulsa, Oklahoma: "To drive large pick-up trucks or SUVs is to many Tulsans a badge of local patriotism, a means to support the petroleum-based local economy . . . ." Osofsky & Levit, supra note 41, at 421.
222. Sunstein, supra note 52, at 939-40 (describing the factors relevant to assessing the strength of a norm).
223. Although the norms terminology can be complex, the intuitions of local officials or other community members about the types of behaviors most susceptible to norm change may nonetheless prove prescient. "Because each of us spends much of each day swimming in social waters, we each have a deep intuitive understanding of [the] social phenomena" that complicated norm analysis often yields.
224. Ellickson, Evolution of Social Norms, supra note 51, at 63.
225. Sunstein, supra note 52, at 934 ("You may purchase an American car, or display the flag on July 4, or engage in risky behavior because of existing norms in your community.").
226. Lawrence Lessig, Social Meaning and Social Norms, 144 U. PA. L. REV. 2181, 2183-84 (1996)
227. [hereinafter Lessig, Social Meaning and Social Norms]; Lessig, The Regulati On of Social Meaning, supra note 53, at 962-72 (describing the context-specific meaning of actions, such as dueling and helmet-wearing, in different temporal and geographic communities).
228. The "salience that particular norms have within a given social context" is related to the "price" of violating the norm, and "[p]rice is always a function of context." Lessig, Social Meaning and Social Norms, supra note 102, at 2184-88.
229. Lessig, The Regulation of Social Meaning, supra note 53, at 970 ("[B]y rightfully and properly executing a duel, though risking death, one could establish oneself as a gentleman, a person to be trusted and engaged, and thus awarded significant social advantages. Social meanings could well be such that there would be a net benefit from engaging in a duel . . . .").
230. Id. at 971-72.
231. McAdams, Origin, Development, and Regulation, supra note 51, at 386.
232. See, e.g., JACQUELINE VAUGHN SWITZER, GREEN BACKLASH: THE HISTORY AND POLITICS OF THE ENVIRONMENTAL OPPOSITION IN THE U.S. 191, 195 (1997) (describing the "wiseuse" movement and anti-environmentalism in communities dependent on the timber industry)
233. Jeffrey J. Rachlinski, The Psychology of Global Climate Change, 2000 U. ILL. L. REV. 299, 317 (2000) (doubting that social norms will suffice to respond effectively to climate change and referencing the "[p]olarization in attitudes about global climate change")
234. LUNTZ RESEARCH COMPANIES, STRAIGHT TALK. THE ENVIRONMENT: A CLEANER, SAFER, HEALTHIER AMERICA 142 (2002), available at http://www2.bc.edu/~plater/ Newpublicsite06/suppmats/02. 6.pdf (noting in a political strategy document that the term "environmentalist" and some environmental groups and advocates have "an extremist image that turns off many").
235. Cooter, Do Good Laws Make Good Citizens?, supra note 51, at 1595-96
236. McAdams, The Origin, Development, and Regulation of Norms, supra note 51, at 382-86, 395-96
237. Vandenbergh, Order Without Social Norms, supra note 26, at 1114 ("Norms theorists in the legal literature have asserted that individuals hold specific, first-order or concrete norms, as well as generalized, second-order or abstract norms." (citation omitted))
238. Green, You Can't Pay Them Enough supra note 26, at 417 (describing the relationship between first order and second order preferences).
239. Vandenbergh & Steinemann, supra note 26, at 1707 ("Many legal scholars and social psychologists agree that behavior change frequently arises from shifts in beliefs that connect concrete and abstract norms.").
240. Id. at 1713.
241. Richard McAdams also recognizes the importance of information and beliefs about the relationship of a concrete norm to the supporting abstract norm. McAdams, Origin, Development and Regulation, supra note 51, at 385-86, 395-96.
242. Michael P. Vandenbergh, Beyond Elegance: A Testable Typology of Social Norms in Corporate Environmental Compliance, 22 STAN. ENVTL L.J. 55, 95-99 (2003) (describing norms relevant to environmental protection).
243. McAdams, Origin, Development, and Regulation, supra note 51, at 383 (identifying "be a good neighbor" as a stable, abstract norm).
244. Babcock, Assuming Personal Responsibility, supra note 6, at 152 (conceding that "the abstract environmental protection norm may not be sufficiently robust or widely enough held to overcome all the barriers to responsible environmental behavior . . . and activate concrete personal norms favoring specific beneficial environmental action." (citation omitted))
245. Andras Takacs-Santa, Barriers to Environmental Concern, 14 HUM. ECOLOGY REV. 26, 26 (2007)
246. Green, Self Control, Individual Choice, and Climate Change, supra note 26, at 78 (contrasting polls showing strong support for environ-mental protection with contradictory consumption and voting decisions)
247. Green, You Can't Pay Them Enough, supra note 26, at 415 ("[C]oncern of the general public appears to be 'wide' but 'shallow.'")
248. Lin, Evangelizing Climate Change, supra note 26, at 1162-63 (explaining that although "the environmental protection norm is more widespread today than a half-century ago," it is a "'shallow' norm that is unlikely to be a strong motivator of carbon-neutral individual behavior" (citation omitted)).
249. See Alex Williams, Buying into the Green Movement, N.Y. TIMES, July 1, 2007, § 9 (Style Desk), at 1 (correction appended July 8, 2007) (describing a critique offered by some environmentalists of green consumerism).
250. Green, You Can't Pay Them Enough, supra note 26, at 414-15 (describing disputes about how widespread an environmental protection norm is in the United States)
251. Vandenbergh & Steinemann, supra note 26, at 1713. 116
252. LUNTZ, supra note 107 at 142 ("The mainstream, centrist American now sees the excesses of so-called 'environmentalists,' and prefers the label 'conservationist' instead.").
253. Vandenbergh & Steinemann, supra note 26, at 1713 (observing that "[g]iven the vast number of people who must change their behavior, the challenge posed by climate change is to identify abstract norms that are sufficiently widespread to influence individuals who do not identify with environmentalism," and suggesting that a concrete norm of carbon neutrality could be supported by appeal to the abstract norm of personal responsibility).
254. Scott, supra note 61, at 1638 (arguing that the context-specific nature of norms frustrates attempts to develop general theories of norm origination and internalization).
255. Lin, supra note 26, at 1163-67 (arguing that value change is necessary to support meaningful behavioral changes with respect to climate change)
256. see also Babcock, Achieving Broader Changes, supra note 26, at 13 (suggesting that "a partial solution [to limitations of reliance on the abstract norm of environmental protection] lies in modifying the abstract environmental protection norm to address individual environmental responsibility.")
257. Green, Creating Environmentalists, supra note 26, at 7-11, 13-25 (describing how identity and commitments shape behavior and exploring possibilities for using law to encourage individuals to adopt environmentally friendly identities and commitments).
258. Green, Creating Environmentalists, supra note 26, at 17-26 (reviewing literature suggesting that progress on environmental issues requires a "shift in individuals' values" and analyzing "ways in which environmental policy instruments may impact identities and commitments").
259. Lin, supra note 26, at 1167 (recognizing the challenges of achieving value shifts)
260. Babcock, Assuming Personal Responsibility supra note 6, at 143 ("Changing the existing abstract norm of environmental protection and creating a new norm are each difficult and lengthy processes.").
261. See Sunstein, supra note 52, at 939-40 (stating that the strength of a norm will depend upon a number of factors that are perhaps most easily weighed at the community level).
262. Green, Creating Environmentalists, supra note 26, at 9-10. Of note, Green does not suggest that this anxiety will cause all Greens to avoid SUVs - he identifies a variety of factors that will influence a Green's car choice. However, the anxiety at identity mismatch will presumably make it less likely that a Green (as opposed to a Red) will choose to drive an SUV.
263. Cooter, Three Effects of Social Norms on Law, supra note 83, at 19-20. Cooter proceeds from the premise that "people tend to make moral commitments to increase their opportunities," and thus they will internalize a norm if they perceive it is in their benefit to do so because others with whom they have relationships will infer their "good" character from their behavior, thereby increasing opportunities.
264. Id at 19.
265. One objection to this approach is that it constitutes a democracy-reducing bait and switch. As Robert Cooter observes, "[t]he controversy over what norms exist . . . is mild compared to the controversy over what norms ought to exist." Id. at 5.
266. This approach assumes state adoption of the goal of reducing emissions (at least for purposes of this Article to mitigate climate change) but advocates securing citizen participation in achieving that goal through sleight of hand, or masking the goal. A thoughtful consideration of this objection requires more attention than this Article can provide. At a minimum, however, it is worth noting that the initial state decision to limit emissions is subject to democratic review and that tailoring to existing abstract norms seems less intrusive than an effort by the state to actually shape or change those norms. The state could, for example, "learn to use the techniques of commercial advertising" to shape individuals' preferences by linking desired behaviors with "traits desired by partners in relationships." Instead of issuing speeding tickets a state could fund an ad campaign - "'Women prefer men who drive carefully.'" Cooter, Do Good Laws Make Good Citizens?, supra note 51, at 1598. For a discussion of the concerns raised by state efforts to change social meaning and the resulting "Orwell effect,"
267. see Lessig, The Regulation of Social Meaning, supra note 53, at 1016-19, 1034-44.
268. Babcock, Achieving Broader Changes, supra note 26, at 12.
269. Flatt, supra note 47, at 478.
270. Osofsky & Levit, supra note 41, at 420-22.
271. Id. at 413, 415.
272. Id. at 421-27.
273. See, e.g., Vandenbergh, supra note 111, at 58 (identifying eight abstract norms: "law compliance, human health protection, environmental protection, autonomy, fair process, good faith, reciprocity and conformity"), 80-117 (reviewing empirical studies regarding the aforementioned norms). Vandenbergh and Steinemann also identify the abstract "personal responsibility norm," which they argue, when activated, can be linked to global warming and change individual carbon-emitting actions
274. Vandenbergh & Steinemann, supra note 26, at 1678.
275. See, e.g., Leslie Kaufman, In Kansas, Climate Skeptics Embrace Cleaner Energy, N.Y. TIMES, Oct. 18, 2010, at A1 (describing the Climate and Energy Project's success in encouraging communities skeptical of climate change to nevertheless embrace practices limiting GHG emissions by "focusing on thrift, patriotism, spiritual conviction and economic prosperity").
276. I have commented on the potentially advantageous "feedback loops" between norm campaigns and civic behavior
277. See Kuh, supra note 45, at 929.
278. Lessig, The New Chicago School, supra note 50, at 690 (describing how indirect regulation "may allow the government to achieve a regulatory end without suffering political cost").
279. Vandenbergh & Steinemann supra note 26, at 1707
280. (citing Paul C. Stern et al., A Value-Belief-Norm Theory of Support for Social Movements: The Case of Environmentalism, 6 HUM. ECOLOGY REV. 81, at 83-86, 92 (1999) [hereinafter Stern, A Value-Belief-Norm Theory])
281. Stern, Proenvironmental Consumer Behavior supra note 84, at 462-63.
282. Vandenbergh & Steinemann, supra note 26, at 1707-08
283. (citing Stern et al., A Value-Belief-Norm Theory, supra note 135, at 83-86, 92).
284. Lin, supra note 26, at 1174 (providing an overview of cultural cognition theory and describing its lessons for efforts to deploy norms to change emitting behaviors)
285. see also Dan M. Kahan, The Cognitively Illiberal State, 60 STAN. L. REV. 115, 116-18 (2007)
286. Dan M. Kahan et al., The Second National Risk and Culture Study: Making Sense of - and Making Progress In - The American Culture War of Fact (GWU Legal Studies Research Paper No. 370
287. Yale Law School, Public Law Working Paper No. 154
288. Harvard Law School Program on Risk Regulation Research Paper No. 08-26), available at http://ssrn.com/abstract=1017189
289. [hereinafter Kahan et al., The Second National Risk and Culture Study].
290. E.g., Kahan et al., The Second National Risk and Culture Study, supra note 137.
291. Id. at 3.
292. Id. at 4-6.
293. Vandenbergh & Steinemann, supra note 26, at 1717.
294. See generally Kahan, The Cognitively Illiberal State, supra note 137, at 145 (suggesting that laws be explained in terms that appeal to divergent worldviews through a process of "expressive overdetermination").
295. Vandenbergh & Steinemann, supra note 26, at 1729, 1731-32 (observing that "public information campaigns will need to reflect a sophisticated understanding of how information is received, processed, and used by individuals," and describing research identifying factors important for communicating information to effect behavior change)
296. see also Sunstein, supra note 52, at 950 (observing that "reactions to information turn a good deal on how the information is framed" and providing as an illustration that "energy conservation programs are far more effective if they point to the dollars lost through failure to conserve than if they point to the dollars saved through conservation").
297. Lin, supra note 26, at 1158-59 (describing how difficulties in communicating information may frustrate efforts to activate norms relevant to climate change).
298. See Babcock, Achieving Broader Changes, supra note 26, at 16 (describing a series of challenges to educating the public).
299. Babcock, Assuming Personal Responsibility, supra note 6, at 167-70 (describing the complexity of structuring environmental information campaigns)
300. See generally Stern, Proenvironmental Consumer Behavior, supra note 84, at 467-68 (discussing strategies for communicating information to change behavior and observing that "[w]hat makes information effective is not so much its accuracy and completeness as the extent to which it captures the attention of the audience, gains their involvement, and overcomes possible skepticism about its credibility and usefulness for the recipient's situation").
301. See generally Vandenbergh, From Smokestack to SUV, supra note 4, at 621 ("For some issues, states and localities may be better positioned to tailor public information campaigns and other informational regulatory efforts to local populations.").
302. Babcock Assuming Personal Responsibility supra note 6, at 167
303. (citing P. Wesley Schultz & Lynette Zelezny, Reframing Environmental Messages to be Congruent with American Values, 10 HUM. ECOLOGY REV. 126, 134 (2003).
304. John C. Dernbach, Harnessing Individual Behavior to Address Climate Change: Options for Congress, 26 VA. ENVTL. L.J. 107, 157 (2008) (suggesting that Congress "requir[e] or allow[ ] states to adopt individual or public engagement plans . . . . [that] would allow states to tailor individual engagement efforts to their own economic, geographic, and demographic situations")
305. Peterson, McKinstry Jr. & Dernbach, supra note 46, at 265-66 (2008). If a locale harbors conflicting values or sentiments, one strategy is to offer different justifications for the law grounded in these competing worldviews
306. See Kahan, The Cognitively Illiberal State, supra note 137, at 145-46 (describing a process of "expressive overdetermination" wherein political actors "self-consciously construct[ ] a discourse of overlapping dissensus comprisin a plurality of justifications distinctive of the plural and opposing worldviews held by society's members" (emphasis omitted)). This should not be taken to suggest that local governments are the sole source of knowledge about community values and norms. Proxies (such as voting trends) or other methods (such as surveys) could likely be developed to identify the presence of relevant norms or values in a community without relying on the input of local government. However, care would need to be taken to avoid reliance on inaccurate proxies.
307. E.g., Ela, supra note 26, at 100 (commenting on the commonsense utility of a national approach).
308. This is similar to Kahan's concept of "expressive overdetermination." Kahan, The Cognitively Illiberal State, supra note 137, at 145.
309. Carlson, supra note 55, at 1263, 1287-91 (describing how mandates, face-to-face communication, and feedback on group performance promote recycling behaviors).
310. Id. at 1287-91 (summarizing the results of several studies of curbside recycling programs).
311. Id. at 1288-89.
312. The Sacramento Metropolitan Utility District has begun a pilot program to reduce residential energy use through indirect feedback that compares residential customers' energy consumption to that of their neighbors. This approach is supported by behavioral science research showing that individuals are highly motivated by perceptions of what others find acceptable. MINN. DEP'T OF COMMERCE, OFFICE OF ENERGY SECURITY, RESIDENTIAL ENERGY USE BEHAVIOR CHANGE PILOT 18 (2009), available at http://www.state.mn.us/mn/externalDocs/Commerce/ Franklin-Energy-Behavioral-Programs-Report-050809034016-ResEnergyBehavior.Pdf
313. see also, Workje Abrahamse et al., The Effect of Tailored Information, Goal Setting, and Tailored Feedback on Household Energy Use, Energy-related Behaviors, and Behavioral Antecedents, 27 J. ENVTL. PSYCHOL. 265 (2007) (reporting on a study that exposed one group to an internet tool providing information on efficient energy use while the control group was not given any information and discovering that "[a]fter 5 months, households exposed to the combination of interventions saved 5.1%, while households in the control group used 0.7% more energy.")
314. Uwe Dulleck & Sylvia Kaufmann, Do Customer Information Programs Reduce Household Electricity Demand? - The Irish Program, 32 ENERGY POL'Y 1025 (2004) (describing an empirical study showing that the Irish program, by providing information on increasing efficient energy use, reduced household electricity demand by 7%).
315. Carlson, supra note 55, at 1290.
316. See McAdams, The Origin, Development and Regulation of Norms, supra note 51, at 355-75 (setting out an esteem theory of norms).
317. Id. at 381 ("Without internalization, one obeys the norm to avoid external sanctions . . . . After internalization, there is yet another cost to violating a norm: guilt. The individual feels psychological discomfort whether or not others detect her violation.").
318. Carlson, supra note 55, at 1289-90 (describing how the "norm of cooperation" may explain the efficacy of face-to-face communication and feedback in influencing recycling behaviors).
319. Id. at 1290
320. see also Sunstein, supra note 52, at 945 ("Experimental work shows that . . . agents are willing to cooperate, and hence to solve collective action problems without coercion, if most people are seen as cooperators.").
321. Vandenbergh, Order Without Social Norms, supra note 26, at 1118-19.
322. Carlson, supra note 55, at 1290. Large-number, small-payoff collective action problems occur when many individuals contribute to a problem, but only a small benefit would accrue to each individual by solving the problem. Individual emissions of greenhouse gases and resulting climate change are considered a large-number, small-payoff collective action problem
323. See generally Green, Norms, Institutions, and the Environment, supra note 26, at 115 (concluding that while small-number, large-payoff problems "may be relatively amenable to the development of social norms because members can frequently interact with each other, observe compliance, and punish non-compliance," large-number, small-payoff problems create conditions where "social norms preserving the common resource are less likely to develop, or to be effective").
324. See ELLICKSON, ORDER WITHOUT LAW, supra note 53, at 182. For an interesting take on this point
325. see Ela, supra note 26, at 97-98 (noting the general view that "when it comes to social norms solving collective action problems, it seems that size matters: smaller groups are better, while the largest ones may be hopeless," but arguing that "large collective action problems can always be broken down into - or analyzed in terms of - smaller groups").
326. McAdams, Origin, Development and Regulation, supra note 51, at 389.
327. Ela, supra note 26, at 121 (noting that even where "the highest-level group in a collective action problem - world citizenship - may on the whole appear to be 'loose-knit,'" subgroups offer opportunities for norms to influence behavior).
328. Id.
329. ELLICKSON, ORDER WITHOUT LAW, supra note 53, at 177-78 (reasoning that norms will be strongest in "close-knit" groups where "informal power is broadly distributed among group members and the information pertinent to informal control circulates easily among them").
330. The SWITCH Project, MOONTOWN FOUND., http://www.moontownfoundation.org/? page-id=32 (last visited Oct. 28, 2010) (on file with Harvard Law School Library). Irvine, California similarly implements a Community Energy Partnership program credited with achieving a reduction of approximately one million pounds of GHG emissions per year. Personal interaction with citizens is viewed as a labor-intensive but critical component of the program's success
331. See ICLEI, Irvine, Calif., Wins Flex Your Power Award for Education and Media (12/08), http://www.icleiusa.org/success-stories/outreach-and-engagement/ irvine-califwins-flex-your-power-award-for-education-and-media-12-08 (last visited Oct. 28, 2010) (on file with Harvard Law School Library).
332. Our Swell Neighborhoods, SUSTAINABLE LAWRENCE, http:// sustainablelawrence.org/swell.html (last visited Oct. 28, 2010) (on file with Harvard Law School Library).
333. Indeed, when it comes to comparing GHG-emissions, such comparisons are likely to be more salient the more homogenous and localized the group.
334. Ela, supra note 26, at 135-36 (proposing a "localized billing community program" that would compare energy use between "relatively localized and homogenous 'billing communities' - like single blocks or apartment buildings - so that users can compete against small numbers of similar users" and noting that "[c]itywide averages . . . are less than ideal because they include customers of such a wide variety of social classes and lifestyles"). Alexandria, Virginia, for example, coordinates with utility companies to provide customers with data comparing their energy consumption with that of average users in Alexandria in their category (residential, office, restaurant, etc.).
335. See CITY OF ALEXANDRIA, VA, ECO-CITY ALEXANDRIA: ENVIRONMENTAL ACTION PLAN, EPC DRAFT at 36 (2009), available at http://www.alexandriava.gov/ uploadedFiles/tes/oeq/Environmental% 20Action%20Plan%20Phase%20II(2).pdf.
336. McAdams, Signaling Discount Rates, supra note 78, at 665.
337. Robert Cooter's work suggests another intriguing advantage to smaller groups. He posits that "officials in large states are remote from most citizens," and thus have difficulty "[i]nferring character from behavior" in order to reward or punish character and encourage the internalization of values. Cooter, Do Good Laws Make Good Citizens?, supra note 51, at 1597. Cooter's model raises at least the possibility that local governments, with more "intimate knowledge" of their residents, may be able to directly "reward people for acquiring civic virtue" and thereby succeed at instilling values where state or national governments cannot.
338. Id 173 As described above, for example, the communities where we live and work offer the opportunity to observe behavior and trigger the reciprocity and conformity norms. Of course, this can also reify undesirable behaviors
339. See Babcock, Assuming Personal Responsibility, supra note 6, at 153-54 (explaining how the conformity norm can cause "a norm of bad environmental behavior [to] take hold, for example, if people observe other people wasting water or electricity, driving SUVs, or littering").
340. Communities may also be very large, in the case of urban centers. However, even New York City is small compared to the entirety of the United States - the "group" targeted by national norm campaigns. Moreover, local governments are in a good position to identify discrete communities within their jurisdiction (boroughs or city council districts, for example) and structure norm campaigns accordingly. Norms may in fact function quite differently in small communities and urban centers. Karen S. Cook and Russell Hardin argue, for example, that mutual assistance in small communities is premised on collective norms "enforced through individual-level incentives of the threatened sanction of exclusion," while in urban areas norms develop in "networks of ongoing relationships that are embedded within the much larger context" and "are enforced dyadically." Karen S. Cook & Russell Hardin, Norms of Cooperativeness and Networks of Trust, in SOCIAL NORMS 327-34 (Michael Hechter & Karl-Dieter Opp eds., 2001). This characteristic underscores a potential benefit of structuring norm campaigns with reference to variables such as community size and the dominant method of norm activation.
341. Sunstein, supra note 91, at 2032 (observing that in this capacity, "legal mandates . . . take the place of good norms, by requiring certain forms of behavior through statutory requirements accompanied by significant enforcement activity").
342. McAdams, Origin, Development and Regulation, supra note 51, at 398-99
343. Sunstein, supra note 91, at 2031 (describing the expressive function of law and observing that one "goal is to reconstruct existing norms and to change the social meaning of action through a legal expression or statement about appropriate behavior").
344. Cooter, Three Effects of Social Norms on Law, supra note 83, at 159-60
345. McAdams, Origin, Development and Regulation, supra note 51, at 399
346. see also Sunstein, supra note 91, at 2032 ("[S]uch laws are rarely enforced through the criminal law, but they have an important effect in signaling appropriate behavior and inculcating the expectation of social opprobrium and, hence, shame in those who deviate from the announced norm. With or without enforcement activity, such laws can help reconstruct norms . . . .")
347. Sunstein, supra note 52, at 958-59 (observing that even laws that are rarely enforced shape social norms and meanings "because there is a general norm in favor of obeying the law" and because the laws "inculcate both shame and pride").
348. But see Scott, supra note 61, at 1626-31 (arguing that the expressive effects of law are unproven, but recognizing that, under traditional rational choice theory, unenforceable mandates may influence behavior by increasing the possibility of informal sanction).
349. McAdams, Origin, Development and Regulation, supra note 51, at 400
350. see also Cooter, Three Effects of Social Norms on Law, supra note 83, at 10 (arguing that law works in an expressive manner by "influencing people's beliefs about what others will do" and can thereby give rise to the belief that more than 20% of individuals will obey the norm incorporated into the law and cause others to comply).
351. McAdams, Origin, Development and Regulation, supra note 51, at 400.
352. Sunstein, supra note 91, at 2032.
353. Cooter, Do Good Laws Make Good Citizens?, supra note 51, at 1581.
354. McAdams, Origin, Development and Regulation, supra note 51, at 407.
355. Lessig, The Regulation of Social Meaning, supra note 53, at 1010-12.
356. David Richardson, NYC Says "Cool It" to Air-Conditioning the Sidewalk, MILLERMCCUNE, Sept. 11, 2008, available at http://miller-mccune.com/ science-environment/nycsays-% E2%80%9Ccool-it%E2%80%9D-to-air-conditioning-the- sidewalk-694.
357. Press Release, Natural Res. Def. Council, Mayor Bloomberg Signs First-of-its-Kind Energy Conservation Law (Sept. 3, 2008), available at http://www.nrdc.org/media/2008/0809 03.asp.
358. See, e.g., Clyde Haberman, When Shops Keep Doors Agape, Think of Cold Air at $140 a Barrel, N.Y. TIMES, June 17, 2008, at A1, available at http://www.nytimes.com/2008/06/17/nyregion/17nyc.html?-r=1.
359. N.Y.C. ADMIN. CODE, tit. 20, § 20-910(b) (2008) ("[I]t shall be unlawful to keep open any exterior door of a commercial building or structure while an air conditioner or central cooling system is operating that cools the area adjacent to such door, except as needed to permit the ingress and egress of people and the delivery and shipping of goods.").
360. Press Release, Natural Res. Def. Council, supra note 185.
361. McAdams, Origin, Development and Regulation, supra note 51, at 358-60, 400-07 (explaining the importance of public knowledge of a consensus to norm creation and describing how law can signal consensus)
362. Green, Norms, Institutions, and the Environment, supra note 26, at 118-19 ("[An unenforced] law prohibiting littering may lead to a change in behaviour . . . because individuals may view the law as an expression of societal disapproval of littering. They may then not litter either because they internalize this disapproval or because they fear external sanction . . . .").
363. McAdams, Origin, Development and Regulation, supra note 51, at 407.
364. See Lessig, The Regulation of Social Meaning, supra note 53, at 1008-11 (describing semiotic techniques for changing social meaning).
365. See infra notes 200-06 and accompanying text.
366. Vandenbergh, Environmental Command and Control, supra note 5, at 191.
367. Vandenbergh, From Smokestack to SUV, supra note 4, at 600 ("In sum, although command and control measures are unlikely to be effective as the exclusive instrument for steering individual environmentally significant behavior, their expressive effects, in combination with informational regulation and other measures, may be quite important.")
368. Vandenbergh, Barkenbus & Gilligan, supra note 26, at 1727 (describing research suggesting that public education campaigns "may function better in conjunction with laws that exact penalties for excessive idling").
369. Green, Norms, Institutions, and the Environment, supra note 26, at 118 (2007) (describing the connections between formal laws and norms).
370. Cooter, Three Effects of Social Norms on Law, supra note 83, at 15-16 ("For example, fines can supplement the shame associated with being a tax cheater.").
371. Vandenbergh, From Smokestack to SUV, supra note 4, at 600, 613-14 (describing the expressive function of command and control regulation as applied to individual behavior and observing that "[e]nactment of command and control measures may signal a social consensus regarding a particular behavior, and thus may influence personal or social norms").
372. Carlson, supra note 55, at 1299-1300.
373. Ela, supra note 26, at 142 (conceding that for some inherently low-visibility behaviors "interventions to change these behaviors must be designed to work with little, if any, assistance from social influences")
374. see also Vandenbergh & Steinemann, supra note 26, at 1724.
375. Vandenbergh, From Smokestack to SUV, supra note 4, at 598.
376. E.g., HUNTER, SALZMAN & ZAELKE, supra note 72, at 66 ("[G]overnment control of our consumption choices requires intervention far more coercive and intrusive than modern Western democracies will readily accept.")
377. Babcock, Achieving Broader Changes, supra note 26, at 5-6 ("Efforts to detect and ultimately enforce against environmentally harmful individual activities, many of which occur in and around the home, would be costly for the government to carry out and would trigger enormous political resistance because of the interference with individual liberty and invasion of privacy.")
378. Lin, supra note 26, at 1152 ("Often, command-and-control regulation of individuals is politically infeasible because of its perceived intrusiveness . . . . Command-and-control regulation of individuals also can be inefficient and costly to enforce because of the large number of regulatory targets, their dispersed nature, and the difficulty of detecting environmental harms." (footnotes omitted)).
379. The (related) failed attempts to impose a federal implementation plan to achieve the Clean Air Act's National Ambient Air Quality Standards in the Los Angeles Basin provide another well-known example. For a good description
380. see Alan C. Waltner, Paradise Delayed - The Continuing Saga of the Los Angeles Basin Federal Clean Air Implementation Plan, 14 UCLA J. ENVTL. L. & POL'Y 247, 254-63 (1996).
381. John Quarles, The Transportation Control Plans - Federal Regulation's Collision with Reality, 2 HARV. ENVTL. L. REV. 241, 244-45 (1977).
382. Id. at 245.
383. Id. at 245-49.
384. Id. at 250-55.
385. Vandenbergh, From Smokestack to SUV, supra note 4, at 599
386. Ela, supra note 26, at 130 (commenting on the advantages of local anti-idling ordinances).
387. Vandenbergh, From Smokestack to SUV, supra note 4, at 599; Ela, supra note 26, at 130.
388. Oren, supra note 32, at 196.
389. Id. at 242 (discussing the trip reduction efforts of Portland, Oregon).
390. Sunstein, supra note 52, at 949-52 ("The most intrusive kind of government action is of course straightforward coercion.").
391. Babcock, Assuming Personal Responsibility, supra note 6, at 123.
392. Id.
393. Id. at 130 (describing the power of habit).
394. RULES OF THE CITY OF NEW YORK tit. 34, § 4-08(12)(iii)(B)(d) (2009).
395. RULES OF THE CITY OF NEW YORK tit. 34, § 4-04(b)(2) (2009).
396. ALBION, N.Y., CODE § 74-2 (2008) (prohibiting noise from "[r]adios, televisions, record players, tape players and/or other like devices [that is] reasonably likely to annoy or cause discomfort to surrounding neighbors").
397. ALBION, N.Y., CODE §§ 45-1 to 45-6 (2008).
398. N.Y.C. ADMIN. CODE § 16-120(c) (2009).
399. TWIN FALLS, IDAHO, CODE § 6-5-2(B) (2010).
400. TWIN FALLS, IDAHO, CODE § 10-9-9(E) (2010).
401. Vandenbergh, From Smokestack to SUV, supra note 4, at 599 n.321
402. see also, e.g., N.Y.C. ADMIN. CODE § 24-163(a) (2009) ("No person shall cause or permit the engine of a motor vehicle, other than a legally authorized emergency motor vehicle, to idle for longer than three minutes . . . .")
403. N.Y. COMP. CODES R. & REGS. tit. 6, § 217-3.2 (2007) ("No person who owns, operates or leases a heavy duty vehicle including a bus or truck . . . shall allow or permit the engine of such heavy duty vehicle to idle for more than five consecutive minutes when the heavy duty vehicle is not in motion . . . .")
404. Rules Of The City Of New York tit. 16, § 1-08(g) (2009) ("Residents of residential buildings shall: (1) separate from other materials designated recyclable materials that are required to be recycled and shall place such separated materials in the appropriate containers . . . ."). The City of Burlington, Vermont, has launched a "No Idling Campaign" with public outreach, education, and policy advocacy efforts. No Idling Campaign, Burlington Legacy Project http://www.cedo.ci.burlington.vt.us/ legacy/no idling.html (last visited Dec. 1, 2010) (on file with Harvard Law School Library). Signs have been installed in Burlington that read "No Idling: Idling Pollutes and Is Illegal - Per Burlington Code of Ordinances, Sect. 20-55E."
405. Id.
406. see also BURLINGTON, VT., CODE § 20-55(e) (2009) ("No person shall leave idling for more than three (3) minutes any motor vehicle in any area of the city [with certain limited exceptions].").
407. It is estimated that if half of all households in the U.S. lowered the temperature setting of their water heaters by twenty degrees Fahrenheit, it would reduce annual CO2 emissions by between twenty-eight and thirty-nine million tons. Vandenbergh, Barkenbus & Gilligan, supra note 26, at 1746.
408. See, e.g., Uniform Fire Prevention and Building Code, N.Y. COMP. CODES R. & REGS. tit. 19, §§ 1219-1228 (2007).
409. As discussed supra note 45 and accompanying text, I do not consider whether municipalities currently possess the authority to enact this and other measures discussed, but presume that they could be afforded that authority
410. See Bruce Babbitt, Federalism and the Environment: An Intergovernmental Perspective of the Sagebrush Rebellion, 12 ENVTL. L. 847, 853 (1982) (explaining the movement's desire to have federal lands in the West turned over to the States and observing that "the considerable support that the Sagebrush Rebellion has gained in the West reflects a deepseated frustration with what is perceived to be heavy-handed, arbitrary, and unreasonable federal regulation of public lands"). The Tea Party movement also appears to evince anti-federal sentiment. The Contract from America, for example, encourages congressional candidates and elected officials to "[c]reate a Blue Ribbon taskforce that engages in a complete audit of federal agencies and programs, assessing their Constitutionality, and identifying duplication, waste, ineffectiveness, and agencies and programs better left for the states or local authorities." Contract from America, http://www.thecontract.org/the-contract-from-america (last visited Dec. 1, 2010) (on file with the Harvard Law School Library).
411. ALBION, N.Y., CODE § 45-5 (2004).
412. Ela, supra note 26, at 130 (recommending that anti-idling laws be enacted "at the most local level possible," in part because local governments could use local knowledge to designate no-idling zones in areas that would "improve compliance and chances for adoption, by reducing the laws' intrusiveness")
413. See generally Craig N. Oren, How a Mandate Came from Hell: The Making of the Federal Employee Trip Reduction Program, 28 ENVTL. L. 267, 328 (1998)
414. (charting the failure of the federal trip reduction mandate and questioning "the utility of any uniform trip reduction requirement [because] . . . even communities with a historic interest in ridesharing might resist any national mandate because of different local needs and preferences").
415. Sunstein, supra note 52, at 951-52 (discussing, in particular, policy tools for changing norms).
416. James Salzman & Jedediah Purdy, Corn Futures: Consumer Politics, Health, and Climate Change, 38 Envtl. L. Rep. (Envtl. Law Inst.) 10851, 10854 (2008).
417. Irvine, California, for example, implements a Community Energy Partnership program that includes a standards-based science curriculum for fourth grade students focused on energy conservation. Awards and Distinctions, CITY OF IRVINE, CAL., http://www.ci.irvine.ca.us/about/awards-and-distinctions/ default.asp (last visited Nov. 23, 2010) (on file with Harvard Law School Library).
418. Brattleboro, Vermont's Climate Action Plan recommends developing an education program on climate change to be incorporated into the public school curriculum. TOWN OF BRATTLEBORO, VT., THE CLIMATE ACTION PLAN 31 (2003), available at http://www.brattleboro.org/vertical/Sites/%7BF60A5D5E-AC5C-4F97- 891A-615C172A5783%7D/uploads/%7B8E554F52-EB49-422F-8E2A-C90242FDF15B%7D.PDF.
419. Saul Levmore, Norms as Supplements, 86 VA. L. REV. 1989, 2010 (2000) (discussing the work of Paul Robinson and Robert Cooter).
420. Gary C. Bryner, Policy Devolution and Environmental Law: Exploring the Transition to Sustainable Development, 26 ENVIRONS ENVTL. L. & POL'Y J. 1, 31 (2002).
421. McAdams, supra note 64, at 373
422. see also Ellickson, Evolution of Social Norms, supra note 51, at 60-61 (observing that local residents may "follow the lead" of local officials as norm makers "because a city resident is apt to sense that local elected officials possess better social knowledge than ordinary citizens do").
423. McAdams, supra note 64, at 374.