An Integrated Approach to Nanotechnology Governance

Abstract

I. INTRODUCTION II. GOVERNANCE CHALLENGES PRESENTED BY NANOTECHNOLOGIES A. Industry Growth B. Technological Diversity C. Lack of Knowledge and Public Awareness D. Competitiveness E. Potential Benefits F. Risks G. Ethical, Legal and Social Issues III. THE EVOLUTION OF ENVIRONMENTAL GOVERNANCE IV. NANOTECHNOLOGY GOVERNANCE A. Government Regulation 1. Adaptive Regulations 2. Information Requirements B. Public Engagement 1. A National Nanotechnology Governance Dialogue 2. Upstream Public Involvement 3. Engaging Citizens C. Corporate Responsibility D. Codes of Conduct E. Liability F. Individual Decisionmaking V. CONCLUSION I. INTRODUCTION The rapid emergence of nanotechnologies presents significant challenges for environmental and public health governance systems. The unique risks nanomaterials pose because of their size and reactivity, together with a lack of information about the health and environmental effects of these materials, limit the value of traditional risk assessment tools. Further, existing regulatory programs are widely seen as moving too slowly to keep up with innovations in nanotechnologies. Although some nanochemicals and nanopesticides fall under the jurisdiction of the Toxic Substances Control Act (1) or the Federal Insecticide, Fungicide and Rodenticide Act, (2) these statutes only address a small slice of the nanotechnology universe. Even if nano-specific regulatory legislation is enacted, which does not appear likely in the near term, the breadth and rapid development of nanotechnologies will require the use of governance tools in addition to traditional regulation: only this combination will achieve an appropriate balance between the societal benefits of nanotechnologies and the potential risks of at least some of these technologies. This Article suggests the need for an integrated system of environmental and public health governance that relies on a combination of approaches including: an adaptive regulatory system; wider and earlier access to information; deployment of additional public engagement mechanisms; use of voluntary programs as a transitional tool; encouraging broader adoption of corporate social responsibility (CSR) policies; adoption of voluntary codes of conduct; retention of civil liability; and informed individual decisionmaking. In 1999, President Clinton's Council on Sustainable Development concluded [e]nvironmental progress will depend on individual, institutional, and corporate responsibility, commitment, and stewardship. (3) Today's complex environmental challenges such as climate change, fisheries depletion, estuary restoration and oversight of nanotechnology development cannot be solved using only regulatory tools; instead, they require all sectors--governments, companies, institutions, nongovernmental organizations (NGOs) and individuals--to assume responsibility for achieving desired outcomes. Responsibility is a simple term--the legal or ethical accountability for the care or welfare of another (4)--but a complex concept in the context of environmental and public health governance. Over the last thirty plus years, responsibility for environmental and public health management has been seen as primarily a function of government. However, realizing the benefits that new technology's promise while minimizing the risk that some of these technologies may pose requires an approach that also relies on companies, universities, civil society organizations and individuals assuming some responsibilities for careful management of technology research and the life cycle impacts of products. Further, because technological developments are moving rapidly, any governance approach will have to be flexible, allowing the system to adapt as new information becomes available. The United Kingdom's Royal Commission on Environmental Pollution recently observed [C]ontemporary society is characterized by the accelerating pace of the proliferation of new technologies. …