The Woodrow Wilson International Center for Scholars’ Project on Emerging Nanotechnologies (PEN) recently published S. Keiner’s, "Room at the Bottom? Potential State and Local Strategies for Managing the Risks and Benefits of Nanotechnology," March 2008. Readers can see some of our prior posts regarding local nano-regulation in Berkeley here, here, here, here, here, here, and here; Cambridge here and here; and Wisconsin here.

At the outset, the article acknowledges that there have been "no known cases of people or the environment being harmed by nanomaterials." At the same time, the paper maintains that all 50 states have university labs, government labs, and/or commercial entities working with nanoscale materials. Despite no extant injuries due to nanotechnology, the paper clearly recommends a precautionary principle assuming such injuries are likely given the purported commercial prevalence of nanoscale materials.

David Rejeski, Director of Woodrow Wilson’s PEN opens the article with a preface in which he suggests "states and municipalities can serve as a ‘spark’ for action at the federal level . . . and can act as ‘laboratories of democracy’ that may be more responsive and more attuned to the needs of local populations and businesses." Like Mr. Rejeski, Ms. Keiner believes the federal government is failing to adequately address nano-related EHS issues, therefore state and local governments should step in and fill the nanotechnology regulatory gap.

. . . the time is ripe for states and localities to explore action for managing nanotechnology risks and benefits because there seems to be very little interest or urgency among U.S. federal agencies in initiating a nationwide approach to overseeing the potential environmental and public health impacts of nanotechnology.

On the other hand, Ms. Keiner recognizes the potential “patchwork” nature of such an approach, and therefore suggests it could be used as an "interim measure." The article could benefit from a more detailed analysis of the practical ramifications and associated costs of such a “patchwork” regulatory scheme, even if only used as an interim measure pending comprehensive federal regulation.

Ms. Keiner also spends several pages explaining how certain federal laws allow states and municipalities to enact their own nano-regulated EHS laws, even if federal laws are later enacted. She highlights examples where states have promulgated their own regulations concerning air, waste, water, labeling, and worker safety. Ms. Keiner then suggests four specific routes of possible state action concerning potential nano-related EHS concerns:

1. Require disclosure of potential health, safety, or environmental hazards (like Berkeley);
2. Adopt standards that are expert driven by standard setting bodies;

3. Stakeholders should pressure states to act; and

4. States may collaborate on joint regionally standards or approaches. Also draft model laws, rules, and/or ordinances.

While Ms. Keiner recognizes that these approaches may be made moot if the federal government chooses to regulate in this area, she notes that it is still important for states to act because they can enact more restrictive regulations than the federal government. Accordingly, she argue such regulation will not be redundant.

The paper concludes that a lack of federal initiatives leaves plenty of room at the bottom for states and municipalities to regulate nanotechnology. While the paper notes the difficulty in regulating when the science is still uncertain, the author suggests abandoning what she considers a past “reactionary approach” to environmental issues by the states. She further “predicts” California, Michigan, Minnesota, Massachusetts, New York, and New Jersey are the states most likely to enact their own nano-related EHS laws.

All in all, the article fails to acknowledge that many states already realize they have power to act in this arena, but that they lack the necessary scientific consensus on (i) whether exposure to certain nanoscale materials indeed poses EHS risks, (ii) how to properly mitigate any such risks, and (iii) how to regulate in an environment of such uncertainty. Several states will undoubtedly determine that in the interim, it is most appropriate to wait for a science-based consensus to develop while closely monitoring the commercialization of nanotechnology in their borders.

Finally, the paper makes no effort to explain Woodrow Wilson’s prior efforts to get various municipalities and states to adopt nano-EHS regulations in lieu of nano-specific federal action (specifically Berkeley, California; Cambridge, Massachusetts; California state; Wisconsin state; Madison Wisconsin; and perhaps others). This lack of transparency should be remedied so that the reader accurately understands the publisher’s viewpoint.