A smart mix of legal instruments is not new, but green building (GB) compliance is. As a way to environmental compliance in general, the mixing of instruments may also work to overcome the challenges facing GB compliance. The mix can be justified by the failings of government regulation, liability, and self-regulation. Therefore in theory, a smart mix of instruments makes sense, since each of the above instruments may be subject to imperfect information, private interests, the inaccuracy of measurement, and/or ineffectiveness. In practice, instrument mixes have been around in the U.S. GB laws. The theory and the U.S. case law indicate that, first, GB compliance may owe its survival to self-regulation in early times, but over time law and policy will play a big role. Second, in pursuit of GB compliance, governments can make the most of self-regulation by incorporating industry-based certifications into statutory mandates. Apart from the traditional carrots and sticks, governments eventually can enlist private information as behavioral interventions to encourage GB compliance.
Yayun Shen & Michael Faure,
Smart Instrument Mixes to Promote Green Building,
29 Duke Environmental Law & Policy Forum
Available at: https://scholarship.law.duke.edu/delpf/vol29/iss1/2