Law and the Environment : Environmental Lawyer & Attorney : Foley Hoag Law Firm : Boston, Washington D.C.

As I have previously noted, Cass Sunstein, now head of the Office of Information and Regulatory Affairs at OMB under Obama, has called the precautionary principle “deeply incoherent.” Why? Because, as Sunstein notes, “costly precautions inevitably create risks.”

I hope that Sunstein is as troubled as I am by the news, reported recently by Inside EPA, that Mathy Stanislaus, head of EPA’s Office of Solid Waste & Emergency Response, has said that implementing the precautionary principle is a key to EPA’s environmental justice efforts.

When Stanislaus says that “we can’t wait until we have all the conclusive interpretive science to make a decision,” I agree with him, but that’s not the precautionary principle, that’s just a willingness to regulate under uncertainty, which has been a bedrock of environmental law.

However, the precautionary principle is something different and much more insidious. It’s not “regulate in spite of uncertainty” – it’s “regulate because of uncertainty.” It seems to stem from an almost Luddite fear of new technology and, as Sunstein points out, a philosophical view that nature is good and man-made is bad.

Stanislaus is head of OSWER. Is he going to oppose use of new cleanup technologies based on nanotechnology, because the precautionary principle says that we don’t know that nanomaterials are safe?

Stanislaus wants to “operationalize the precautionary principle.” Be worried, be very worried.

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Earlier this month, EPA released its semi-annual regulatory agenda. True policy wonks can review the agenda here. There are always some nuggets buried in the agenda. This agenda includes two proposed rules governing nanotechnology. They are:

A reporting rule under § 8(a) of TSCA. The rule would require persons who manufacture nanoscale materials to notify EPA of information concerning production volume; methods of manufacture and processing; exposure and release information; and available health and safety studies.

A test rule under § 4(a) of TSCA. The proposed rule would apply to “certain multi-wall carbon nanotubes and nanosized clays and alumina.”

Since the entire point of nanomaterials is that they act differently than the same materials as sizes beyond the nanoscale, it is certainly conceivable that such differences could include impacts on human health and the environment. EPA can therefore reasonably propose rules such as described in the regulatory agenda, requiring testing and reporting. My concern is that EPA not leap to conclusions. EPA often has to regulate under uncertainty; I just don’t want the agency to regulate simply because of uncertainty. Nanomaterials hold the promise of contributing to the solution of numerous environmental problems, even aside from their overall economic promise. 

If EPA were to obstruct the development and use of nanomaterials on the basis of the precautionary principle, the environment, as well as the economy, would likely suffer. Since Cass Sunstein, head the Office of Information and Regulatory Affairs at OMB, has called the precautionary principle “deeply incoherent,” let’s hope that EPA will proceed cautiously, gathering information necessary to determine if regulations are necessary, but not rushing willy-nilly to throw roadblocks in the way of such promising technology.

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As a confirmed optimist and believer in technology, I’ve long thought that we can meet the challenge posed by global climate change – as long as we implement the right policies to provide incentives to develop the necessary technologies. Having the wide engineering knowledge that being a lawyer – as well as one of six political science graduates from MIT my year – provides, I have assumed that nanotechnology would play a substantial part in whatever the ultimate solution turns out to be.

Climate change is a big problem and we’re not there yet – especially since the incentives aren’t yet in place. Contaminated site remediation presents a more manageable set of problems, and nanotechnology finally does seem to be making significant headway in the remediation arena. According to a report just published in Environmental Health Perspectives, in-situ nanotechnology can reduce soil and groundwater remediation costs, as well as help to reach the cleanup end point more quickly. The study identifies a number of nano-scale materials that are being used for remediation, but the most common at this point and the one discussed in most detail in the study is zero valent iron.  The study is not definitive, but is based on a review of 45 sites at which nanotechnology has been used or is in process.

In conjunction with the study, the Project on Emerging Nanotechnologies has also produced a map showing the location of sites at which nanotechnology has been used as a remediation technology and providing some information about each site.

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