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. Increasingly, it will be impossible to settle questions about the environmental and human health impacts of nano- and many other new materials consistently and in a timely fashion using traditional risk-based regulatory frameworks ... We are therefore faced with an instance of what David Collinridge described as the "technology control dilemma." In the early stages of a technology we do not know enough to establish the most appropriate controls for managing it. But by the time the problems emerge, the technology is too entrenched to be changed without major disruptions. The solution to this dilemma is not simply to impose a moratorium that stops development, but to be vigilant with regard to inflexible technologies that are harder to abandon or modify than more flexible ones. Thus, the key questions are how difficult would it be to remediate problems if problems arose? These considerations of trans-science, world views and the control dilemma suggest that nanomaterials, like other emerging areas of technology, require an adaptive governance regime capable of monitoring technologies and materials as they are developed and incorporated into processes and products. (5) The nature of the governance system required for the nanotechnologies is not markedly different from the approach needed to address other major environmental and public health problems, such as ecosystem restoration or greenhouse gas mitigation. As Daniel Fiorino noted in his book The New Environmental Regulation, the European literature on social-political governance is asking the question
How can dynamic, complex, and diverse social-political systems be governed more democratically and effectively? Their answer is to think in terms of entirely new conceptions of governance, owing to the limits of traditional, hierarchical ideas about governance in a rapidly changing world. For these writers, "the growing complexity, dynamics, and diversity of our societies, as 'caused by social, technological and scientific developments,' puts governing systems under such new challenges that new conceptions of governance are needed." Social-political governance involves new patterns of interaction among government and others in society. These patterns are not temporary, but are built into the structures and processes of governance. Distinctions between the public (the state, regulatory agencies) and the private (society, markets) are blurred as the boundaries between them become more fluid and permeable. Government acts not on but with nongovernmental and commercial entities. There is a shift from governance as one-way traffic toward two-way traffic [if we are to expect people to take on responsibility they must know why, how, they must have information, they must have a role in design and oversight] in which "aspects, qualities, problems, and opportunities" of those governing and of those being governed are considered. (6) Don Kettl has identified five imperatives for a new and more effective governance strategy: (1) a policy agenda that focuses more on problems than on structures; (2) political accountability that works more through results than through processes; (3) public administration that functions more organically, through heterarchy, than rigidly through hierarchy; (4) political leadership that works more by leveraging action than simply by making decisions; and (5) citizenship that works more through engagement than remoteness. (7)
Each of these perspectives makes clear that the nature of today's environmental and public health problems requires a fundamental rethinking of governance structures. The emergence of nanotechnologies creates particularly difficult governance challenges.
GOVERNANCE CHALLENGES PRESENTED BY NANOTECHNOLOGIES
The rapid emergence of nanotechnologies and their penetration into the marketplace present significant governance challenges. Among the most important of these challenges are: (1) the speed at which the industry is developing and the expected scale of the industry; (2) the diversity of technologies involved; (3) the low levels of public awareness about nanotechnologies; (4) the race to be the first to the market with new products in a competitive global economy; (5) the potential extraordinary social benefits of some nanotechnologies; (6) the nature of the risks that may be created by some nanotechnologies; and (7) the ethical, legal and social issues associated with some of the technologies.
August 2008 statistics from the Project on Emerging Technologies showed 803 nanotechnology-related products on the market, produced by 439 companies in twenty-one countries. (8) The majority of these products were cosmetics, personal care items, sunscreens, clothing, sporting goods and filtration devices. The nanomaterials most frequently involved are metals (silver, zinc, titanium and gold), carbon fibers, and silicon/silica. (9) These products are primarily passive (steady function) nanomaterials--what the International Risk Governance Council refers to as first generation or Frame I materials. (10) Waiting in the development wings are second, third and fourth generation "active" or Frame II nanotechnologies. These materials could change their state during operation (second generation), could bio-assemble allowing, for example, the development of artificial organs (third generation), or could produce molecular nanosystems that function in a manner similar to natural biosystems (fourth generation). (11) Some second generation nanotechnologies are now reaching the market and fourth generation nanotechnologies are expected as early as 2015. (12) Estimates of the scale of nanotechnology market vary widely but may be as high as $2.6 trillion (13) by 2015 and are, of course, affected by the current worldwide economic downturn. The International Risk Governance Council notes that
Nanotechnology has the potential to become one of the defining technologies of the 21st century. Based on the ability to measure, manipulate and...
An integrated approach to nanotechnology governance.
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