Environmental Federalism and Effective Regulation of Nanotechnology

Abstract

Nanotechnology has been called the “Next Industrial Revolution” because of its extraordinary impact on diverse fields such as medicine and health care, energy, electronics, optics, and even environmental remediation. By 2020, nanotechnology is expected to be a multi-trillion dollar industry. Despite this staggering economic impact, no unified nanotechnology regulatory framework exists, and environmental regulators are struggling to understand and manage the potential impacts of nanotechnology on human health and the environment.

This Article first analyzes the history of the general debate over environmental federalism to explore the question of whether regulation of emerging technologies should always take place at a centralized (federal) or decentralized (state and local) level. The Article concludes that in lieu of either monolithic approach, a contextual analysis is preferable because it provides the latitude to craft a regulatory approach that is customized to the variability of individual technologies.

Second, the Article applies the contextual analysis to nanotechnology and concludes that it reveals significant knowledge gaps at nearly every stage of the regulatory process. Finally, the Article concludes that state and local governments can play a critical role in filling those knowledge gaps more quickly than could the federal government working alone. As an example of the role that state and local governments can play in the initial regulatory process, the article describes one city’s efforts to establish a municipal health and safety policy for nanotechnology, including provisions related to information gathering, public outreach, and technical assistance.

Keywords: nanotechnology, environmental law