Nudging towards sustainability? A critical perspective on behavioral economics

Modern environmental law has failed to curb the threat of ecological degradation. At present, environmental regulations are insufficient to significantly modify destructive daily behaviors. The concept of Homo occonomicus, a cornerstone of mainstream economic analysis, portrays the human individual as obeying to perfect rationality. The failure of environmental law stems from a reliance on the premise of Homo occonomicus, as environmental legal orders that regulate individuals as rational, utilitymaximizing,and self-interested economic agents. The underlying assumption of rationality seeks to influence individual interests to their change decisions and behaviors. Environmental law, in particular, consists of regulations obligations or prohibitions and financial incentives such as taxation and subsidies to promote eco-friendly behavior. Behavioral economics challenges the assumption at the heart of neoclassical economics, by identifying a series of limits to human rationality. These limits pertain to human decisions, which behavioral economists show, are partly the result of automatisms, emotion, social norms, and psychological biases. Environmental law should be revisited on premises closer to the behaviors and biases of Homo sapiens rather than a purely theoretical Homo occonomicus. This paper explores a new generation of behaviorally informed legal instruments for environmental protection. The new legal instruments, rather than rely on the Interventionist State (e.g., to impose eco-friendly lifestyles), the Nudging State could facilitate it through "green nudges" can leverage cognitive biases to elicit sustainable behaviors more efficiently. Additionally, this paper takes a critical perspective on behavioral economics and its potential for the ecological transition. By targeting individual behaviors, rather than systemic reform, the behavioral approach promises ecological redemption without threatening the commercial and political status quo. It is insufficient to address environmental issues that are deeply politically and structurally embedded. Nudging may be useful to drawforth a cognitive evolution in our legal instruments, however it cannot become the new legal paradigm of environmental law.