The purpose of this Article is not to anticipate whether or how the Fourth Amendment might apply to specific efforts to collect information about environmentally significant individual behaviors. The purpose is to discern the considerations that have proven salient in balancing environmental regulation and privacy to date that may likewise be relevant to navigating privacy concerns that arise with respect to policy directed to environmentally significant individual behaviors.
In this regard, the Article’s survey suggests that neither the fact that environmentally significant individual behaviors must be aggregated to produce environmental harm nor the fact that individuals, as opposed to commercial entities, experience the privacy intrusions involved dictates that privacy concerns will override the needs of regulation. As evidenced by nuisance law, that individuals impose an environmental externality can be a strong basis for minimizing privacy interests. As evidenced by the hunter enforcement cases, even where aggregation is required and individuals are the subject of regulation, privacy balancing can favor regulation. Notably, however, the articulation of state interest in the hunter enforcement cases is clear and strong. Those contemplating, crafting, and implementing policies addressed to environmentally significant individual behaviors should take care to articulate the strongest case possible that the information sought furthers an important state interest. Privacy concerns need not derail the development of sophisticated policies aimed at reducing harms arising from environmentally significant individual behaviors, but a concerted effort will be required to demonstrate the environmental value of limiting harms from environmentally significant individual behaviors. A concerted effort will also be required to demonstrate that information about environmentally significant individual behaviors is important to effect policies directed to those behaviors and that privacy balancing should therefore favor disclosure to enable regulation.
Kuh, Katrina F.
Utah Law Review: Vol. 2015:
1, Article 1.
Available at: https://dc.law.utah.edu/ulr/vol2015/iss1/1