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October 1, 2007
The following paper is published in the Springer journal
NanoEthics: Ethics for Technologies that Converge at the Nanoscale,
August 2007, Number 2: 105-122.
DOI:
10.1007/s11569-007-0012-9
Nanotechnology Bound: Evaluating the Case for More Regulation
By Patrick
Lin
Abstract
In continuing
news, there is a growing debate on whether current laws and regulations,
both in the US and abroad, need to be strengthened as they relate to
nanotechnology. On one side, experts argue that nanomaterials, which are
making their way into the marketplace today, are possibly harmful to
consumers and the environment, so stronger and new laws are needed to ensure
they are safe. On the other side, different experts argue that more
regulation will slow down the pace of business and innovation in
nanotechnology, or that self-regulation is the answer, or other opposing
positions. This paper will draw out the core issues behind the debate and
explain that there is more at stake than merely environmental, health and
safety (EHS) worries or business interests, as it first appears. We will
also suggest an alternative solution to stricter laws, since stricter laws
would face formidable practical challenges, even if they are warranted.
__________________________________________________________
Whether
or not current laws and regulations can accommodate nanotechnology – a
science that researchers as well as legislators are still trying to
understand – is a fierce debate that came to the forefront last year with
the January 2006 report by the Woodrow Wilson International Center for
Scholars (WWICS) that argued for stricter policies in the US.[1] This paper
will help make the debate more understandable by laying out the major
positions as well as suggesting a simpler, more politically-feasible
alternative to stricter laws.[2]
While the aforementioned report dealt exclusively with US laws, the
underlying debate is parallel to ongoing investigations around the world;
the concern is the same. Because this paper does not refer to any
particular law or regulation, our discussion here can be applied equally
well to those investigations outside the US.
Finally, the risks we address here are environmental, health and safety (EHS)
risks as opposed to, e.g., the risk that there is no democratic
control over the technologies, which does not appear as urgent as EHS risks
but nonetheless is an entirely separate issue deserving of its own
investigation.[3]
1 The
Stricter-Law Argument
While we have
not yet seen anyone or any organization clearly articulate or formalize the
argument for stricter laws in nanotechnology, as opposed to implying the
argument, it can be characterized as the following:
While more and more nanotechnology products are introduced into the
marketplace, some studies have already suggested that engineered
nanomaterials may be harmful, for instance, causing brain damage in
animals.[4] As a specific example, the carbon nanotube – a nanomaterial
that consists of carbon atoms precisely arranged, like connected Lego
blocks[5], and is estimated to be anywhere from 20 to 100+ times stronger
than steel of the same weight, with chemical bonds stronger than that found
in diamonds – happens to resemble the whisker-like asbestos fiber. This is
troubling because the shape of asbestos fibers is what makes them so
difficult to dislodge from one’s lungs. Further, nanoparticles are so
small, by definition, that they might easily and undetectably slip into a
person’s body and cells to undetermined effects.[6]
There are also unknown environmental impacts of nanomaterials. Because they
are created to be more durable than existing materials, it begs the question
of how long they will persist in our landfills.[7] If nanoparticles can be
taken up by cells, as studies have shown, then they could slip into our food
chain and eventually to us – which conjures up the related scenario of food
poisoning from shellfish that had fed on toxic algae and other lessons in
bioaccumulation, e.g., involving the pesticide DDT.[8] Again, the
effects of nanoparticles on our biology are still unknown, so food poisoning
may be the least of our worries, with genetic damage and death as other
possibilities.[9]
So the problem is this: for many people, it seems to be commonsensical that
if there are real questions about the EHS impact of nanotechnology products
or any other product, then we should investigate them further before these
products enter our marketplace. Society has learned that from past lessons
involving such hazardous products as asbestos or lead paint or DDT into the
public space.
Of course, there are laws and regulations already in place that – in theory
– should prevent harmful products from ever reaching the marketplace, such
as the Toxic Substance Control Act (TSCA) and Occupational Safety & Health
Act (OSHAct) in the US. But are these laws really equipped to handle
nanotechnology? We will not attempt to make that determination here,
particularly given the comprehensive analysis offered by the WWICS report
and subsequently by other organizations[10], but we will point out that
there is good-faith reason to believe that current laws are not perfect,
which suggests a real possibility that they cannot account for the
nanomaterials in question.
Even if one doesn’t know much about the relevant laws, it is understood that
laws are created based on the available facts and circumstances of the time
and foreseeable future. They continue to evolve, be refined and even be
repealed over time, as it should be. And given how little we know about
nanotechnology – but that we know nanomaterials have novel and unpredictable
properties – it would be difficult to see why we should expect current laws
to not need updating (or an overhaul) as we learn more about
nanotechnology. At any rate, it’s better to be safe than sorry, i.e.,
to be open to the possibility that we need stricter laws rather than to risk
damaging our health and environment, or so the “stricter-law” argument goes.
At this point, the argument would conclude that it must be a failure of
current laws, such as those in the US, to prevent such products from
entering the marketplace, since if there are serious and continuing
questions about a product’s safety, then commonsense – or some version of
the Precautionary Principle, which we will discuss later – would require the
product is not released into the marketplace until its safety is more
convincingly established.
In the case of the 2006 WWICS report, the recommendation is to strengthen
existing laws and regulations as well as to enact new ones. The report also
provides an analysis of the legislation relevant to nanotechnology,
including: the Toxic Substances Control Act, the Occupational Safety and
Health Act, the Food, Drug and Cosmetic Act, and the major environmental
laws such as Clean Air Act, and Resource Conservation and Recovery Act.
Again, in this paper, we will not look at that analysis to determine whether
or not these acts really are equipped to deal with nanotechnology, but we
will focus more on the supporting reasons behind the (implied) arguments to
evaluate their soundness and consistency.
Calling for stricter laws, of course, is not the only possible response to
the alleged failure of current laws. Some have already proposed a
moratorium or full ban on nanotechnology research and products until EHS
risks are better understood and mitigated as needed.[11] We will also not
investigate this particular position here, since if the argument for
stricter laws cannot be defended, then it seems unlikely that an argument
for a moratorium, which we take to be a significantly more extreme position,
can also be defended. Further, the lack of support for a moratorium, other
than from the few groups that have proposed it, may indicate that this
position is an over-reaction, all things considered – again, so the
stricter-law argument might go.
2 Learning
from History
If the
stricter-law argument sounds a bit far-fetched or paranoid, we can look at
recent US history to see where our laws have failed us in protecting the
public, including industry workers, from commercial hazards. There does not
need to be an elaborate conspiracy theory that such laws had been poorly
designed, perhaps as a result of misinformation, corporate influence or
political haggling. Rather, it is a plain fact that people are fallible,
both scientists and legislators alike, especially when it comes to
predicting the future – in this case about the adequacy of existing
regulations to protect the public and the safety risk posed by new
materials.
Asbestos, lead paint and DDT are frequently-cited case studies, as well as
diet drug “fen-phen” and other pharmaceuticals. In each case, these
materials made their way into the marketplace and into our homes, only to be
discovered later that they are hazardous to our health and/or environment.
However, one can object that these incidents, having occurred years or
decades ago, are an unfair comparison to today’s risk in nanotechnology. It
may be offered in defense of current regulations that we have since evolved
our laws and our thinking to more rigorously test new products, ever mindful
to prevent such incidents from occurring again.
But why should we believe the evolution of our product and environmental
safety laws have reached an end point now? Are we really that clever as to
have finally created a system of safeguards to protect us from every
conceivable EHS risk? Rhetorical questions aside, the following is a
current example of the apparent failure of EHS regulations in 2006 alone.
Just last year, the US Environmental Protection Agency urged companies,
including DuPont and 3M, to phase out their use of a chemical (Perfluorooctanoic
Acid, or PFOA) used to make Teflon®, the non-stick material found in
everyday items such as cookware, carpeting, clothing, food packaging and
thousands of other products.[12] In use for more than 50 years, the
chemical is linked to cancer and organ damage in laboratory animals. It is
so ubiquitous in our environment that it is now found in the blood of nearly
every American. One Teflon manufacturer has already paid more than $100
million to settle lawsuits from residents who live near its factory,
including claims of birth defects.
“The science on [Teflon] is still coming in, but the concern is there, so
acting now to minimize future releases of PFOA is the right thing to do for
our environment and health,” explained an EPA official.[13] Environmental
watchdogs support the EPA move, explaining: “It would be hard to imagine a
chemical that is more widespread in our environment. It is found everywhere
from babies in the womb to whales in the ocean. And beyond that, it is
indestructible in the environment. It lasts forever.”[14]
So given this
current and apparent failure of US regulations to discover or account for
EHS risks posed by Teflon – never mind other continuing controversies, such
as currently-available pharmaceutical drugs that might unknowingly cause
severe health problems – a similar failure with respect to nanotechnology is
not just possible but highly plausible.
Of course, it is perhaps unreasonable to expect that we can guarantee
that commercial products, particularly emerging technologies, are completely
safe. But it seems backwards to release a product into the marketplace and
then conduct EHS testing needed to answer basic questions surrounding the
product. For instance, there are continuing questions on whether mobile
phones may cause a generation of people to have brain cancer, infertility or
other health problems.[15] Also last year, a group in Finland announced
that it is studying the effects of mobile phone radiation on human skin,
given that previous tests have shown cellular shrinkage which may degrade
our bodies’ ability to filter out toxins and other dangerous proteins.[16]
As with Teflon, this is the exactly the kind of scenario that we want to
avoid by now discussing regulation in nanotechnology. It would be a
catastrophe on many levels if mobile phones are shown to be hazardous to our
health, since we have already been using such devices for more than a
decade. If they are hazardous, we would hope that risk would have been
caught by EHS processes designed to protect against this contingency. But
since real, basic questions are still open surrounding mobile phones, as
just one product, many suspect that EHS regulations today need to be
repaired, independently of any special risks posed by nanomaterials.
Returning to nanotechnology, the “commonsense” we referred to in
constructing the argument above has been formally called the Precautionary
Principle (PP), and it is worth discussing here briefly, since it plays a
critical role in the argument. The PP, or at least one version of it,
essentially states: if an action might possibly lead to
an unacceptable consequence, then we should refrain from that action until
that risk is mitigated.[17]
As it applies here, the PP seems to dictate that if introducing
nanotechnology products into the marketplace now might possibly lead to the
unacceptable consequence of serious harm to people or the environment, then
we should refrain from that action until that risk is mitigated – in this
case, by implementing stronger laws and regulations. Note that for the PP
to work, the risk needs to be credible and not just a bare or logical
possibility. Given previous and ongoing research, it is a credible claim to
say that, at best, we are uncertain whether nanomaterials are safe, and at
worst, there is good evidence to show they are not.
In the case of the Teflon chemical, even though studies have not
definitively proven that it is harmful to humans in the amounts present in
our everyday lives (otherwise a much stronger and immediate ban perhaps
would have been proposed), there is enough data to suggest a real risk to
the environment and our health. So the EPA seems to be guided by the PP or
something similar in concluding that companies should produce less of this
chemical, in case that its presence in consumer goods and in manufacturing
emissions is truly harmful. In other words, the EPA decided that the best
course of action is to err on the side of precaution, even though a $2
billion-a-year business is reputedly at stake.[18]
3
Objections to the Stricter-Law Argument
If we take the
preceding as an accurate characterization of the stricter-law argument, then
we might (loosely) formalize the argument as the following set of premises
(P) and conclusions (C):
(P1) Some prima
facie evidence exists that some engineered nanomaterials may be harmful
to EHS interests.
(P2) Current laws may
be inadequate in accounting for EHS risks in nanotechnology (as a general
liability of any law that is now relevant to an area that did not previously
exist or was not properly/fully considered during the legislative or
regulatory process).
(C1) Therefore, there is a possibility that nanotechnology, as it advances and
absent stricter laws, may lead to EHS harms.
(P3) EHS harms are an
unacceptable consequence, especially since our laws and some governmental
agencies exist specifically to protect us from those harms.
(P4) Commonsense
suggests we should adopt the Precautionary Principle in this case, which
states that: if an action might possibly lead to an unacceptable
consequence, then we should refrain from that action until that risk is
mitigated.
(C2)
Therefore, we should refrain from allowing nanotechnology to proceed without
taking some action to mitigate nanotech’s EHS risk.
(P5) We can mitigate
nanotech’s EHS risk by either enacting a moratorium or implementing stricter
laws.
(P6) A moratorium on
nanotechnology research or commercialization has limited support and may be
an over-reaction, so it is not a viable or reasonable option.
(C3)
Therefore, the action we should take, if we want nanotechnology to proceed,
is to implement stricter laws.
There
has been much debate over the conclusion of the stricter-law argument. The
objections, both actual and possible, to that argument include the
following, in order of the weakest to strongest, as we see them:
(a)
Ordinary Material Objection: Nanomaterials are not any more harmful
than other materials, so they need no special regulations;
(b)
Status Quo Objection: Current regulations are enough to safeguard the
public from these harms;
(c)
Precautionary Principle Objection: The Precautionary Principle should
not apply here, so the entire argument that rests on it is flawed;
(d)
Self-Regulation Objection: Self-regulation, not more governmental
regulation, is the answer;
(e)
Other Harms Objection: Stricter regulation would stunt the growth of
a nascent nanotechnology industry;
(f)
Future Harms Objection: More than the usual, near-term economic harms
cited in (e), there may be more serious harms in the future if the
nanotechnology industry were hindered now; and
(g)
Better-Us-Than-Them Objection: Increasing regulation only puts that
nation at a disadvantage with others that may then develop and reap the
benefits of nanotech first.
Though some of these objections can be and have been combined, we will
consider each separately in the following. The last few objections are the
most compelling, so we will spend more time on those positions than others
in our discussion.
(a) Ordinary Materials Objection
This
objection asserts that existing laws and regulations are adequate to account
for nanotechnology, because nanomaterials are essentially the same kinds of
substances that we have been using for decades. That is to say, a carbon
nanotube is still only made up of carbon, and nano-sunblock is still only
made up of zinc or titanium oxide – and these are materials that current
regulations have proven sufficient to handle. In some cases, nanomaterials
are simply much smaller versions of the familiar thing. In other cases,
they are the same material with a different molecular arrangement.
Therefore, we do not need stricter laws to account for nanotechnology.
In
fact, nanotechnology is something that has arguably existed since the
beginning of the world, if not earlier: “Nanostructures – objects with
nanometer scale features – are not new nor were they first created by man.
There are many examples of nanostructures in nature in the way that plants
and animals have evolved. Similarly there are many natural nanoscale
materials….. catalysts, porous materials, certain minerals, soot particles,
etc. that have unique properties particularly because of the nanoscale
features.”[19]
Analysis
In
the formalized argument stated above, this objection disputes either premise
P1 or P2, or both, and therefore conclusion C1 as well as the dependent
conclusions C2 and C3. However, the objection seems scientifically naive at
best and contradictory at worst. First, it is precisely the different
molecular arrangement of the same materials that creates different
properties. In a certain arrangement, carbon can be made into pencil lead
and useful for writing; in another arrangement, it is a diamond; in yet
another, it is a carbon nanotube that, for example, is useful in building
lighter cars or aircraft. Therefore, it is not so much the issue that
nanotechnology works with common materials, but rather that by manipulating
these materials at the nanoscale, we can create uncommon results – results
that today’s laws and regulations could not have anticipated.
Second, it is not just the molecular arrangement that gives nanomaterials
their unique properties; it can also be their size. For instance, aluminum
is often considered an everyday, safe element, e.g., soda cans are
made from it. But if aluminum is ground up fine enough into dust, it can
spontaneously combust in a highly energetic reaction with air. Further,
nanoparticles are, by definition, so small that existing air and water
filters would be unable to prevent their escape from manufacturing
facilities – opening the possibility for toxic emissions that affect workers
and the outside environment.[20]
Given
their size, nanomaterials may also be able to slip by current methods of
testing for safety and health risks. In other words, current regulations
that require such testing may not be enough, if the testing methods they
require cannot catch nanosized materials. Recognizing this challenge,
researchers at UCLA, for instance, last year announced devising a new
approach to nanotoxicology.[21]
Finally, the Ordinary Materials Objection also seems to be a case of
“wanting to have your cake and eat it too.” The allure of nanotechnology in
the first place is that the materials we are creating have novel and useful
properties that we are still trying to understand and exploit. So it would
be inconsistent to say that these nanomaterials are nothing special that we
need to worry about, when the entire point is that they are extraordinarily
special. As something special and unpredictable, it would be reasonable to
think that they might be more (or less) hazardous or toxic that ordinary
materials of the same element or chemical – which is exactly the concern
that is prompting calls for more regulation.
(b) Status Quo Objection
This
objection to the stricter-law argument asserts that, as a matter of fact,
current regulations are enough to safeguard the public from these harms.
They have served us well over the years, and without definitive proof that
nanomaterials are actually harmful in consumer products or manufacturing, it
is premature to subject the nanotechnology industry to more regulations.
Analysis
This
objection disputes premise P2 in our formalized argument, thereby throwing
into question all conclusions from C1 to C3. Our evaluation of this
objection has already been discussed in the preceding section, where we
pointed out that today’s controversy over Teflon, as just one example, shows
that current laws and regulations are fallible and probably do not fully
protect us from EHS risks in all consumer products or their manufacturing.
Further, even if current laws are adequate to account for nanomaterials in
production today and in the near future, the industry is still learning
about the science and working on new materials, and these materials may slip
past existing laws. Either way, it is also prudent to believe that the
processes we have established to regulate business in general are imperfect
and will continue to be a work in progress, as long as businesses and
research organizations continue to innovate. Therefore, we should be open
to the possibility that current laws and regulations are not enough,
particularly when the consequences of their failure may be catastrophic.
This objection, therefore, does not appear to be defensible against the
stricter-law argument.
(c) Precautionary Principle Objection
This
objection maintains that the Precautionary Principle (PP) is not an
obviously-correct or commonsense rule that we should follow, and therefore
the stricter-law argument falls apart, since it depends critically on the
PP. The most serious criticism we examine here is that the PP represents a
risk-averse strategy that is too conservative, at least as it applies to the
considered case of nanotechnology where the EHS risk is still unclear.[22]
Risk
aversion, the argument goes, is not the only workable strategy in life,
business or politics. After all, if Americans never took unnecessary or
perhaps unreasonable risks, then we never would have accomplished such
things as expanding the country westward to California, inventing the
airplane and putting a man on the moon. In fact, America was built on the
backs of explorers and frontiersman, such as Christopher Columbus and
Captain John Smith, who risked and sometimes lost everything. And many
other nations can say similar things about their forebearers, pioneers and
inventors.
Such
may be the case with nanotechnology: it is a new frontier in science that,
while admittedly contains unknown danger, also holds much promise. However,
if we were to follow the PP, we may lose a great opportunity to develop a
science that has been called “the Next Industrial Revolution.”[23]
Analysis
This
objection attacks premise P4 in the formalized argument, evoking powerful
emotions of national pride and adventure, so it may appeal to many.
However, it is unfair to compare our current debate on strengthening laws
relevant to nanotechnology with, say, the Wright Brothers’ debate on whether
they should jump off a cliff on what amounts to a bicycle-powered deathtrap,
or with any of the other situations cited above.
One
reason is that the individuals associated with above events, from
Christopher Columbus’ crew to Neil Armstrong, presumably had consented to
such risks. Their decisions more or less directly affected only their own
lives. But in our considered debate surrounding nanotechnology, countless
people may be put at risk without their consent. Indeed, surveys have shown
that most Americans are unaware of what nanotechnology is or have not even
heard the word before, so it would be impossible for them to give informed
consent anyway, even if asked.[24]
The
issue of rights might be relevant here. Our basic human right to not
be unjustifiably harmed plausibly entails a right to not have one’s life
unjustifiably endangered or otherwise put at risk of significant harm. That
is, not only are we morally barred from harming others without just cause,
but we should also not put others at risk of such harm or even cause
theoretical or statistical harm. Without their consent to be subjected to
such risk, ignoring the PP in the case of nanotechnology may violate this
right.
Of
course, one possible reply to this is that by participating in a democratic
system such as that in the US, we are in effect “consenting” to the outcomes
of elections, ballot propositions as well as any legal actions of the
leaders we elect. So if an elected legislative body were to pass some
measure or law that runs contrary to the PP, then it can be said that we had
consented to such a decision by electing politicians prone to such
aggressive policies. If current laws and regulations are allowed to stand
as they are, that is a decision by which the public must abide (or seek to
reverse through the established political channels).
However, political theorists have pointed out that we cannot consent to
unjustifiably lay down our lives or submit to unreasonable harms, since that
would defeat the very purpose of government in the first place.[25]
So extending this line of reasoning to our discussion here, it may be argued
that we also cannot consent or countenance policies that lead to harm to our
persons.
At
any rate, it does not seem unreasonable to suggest that if the stakes are
high enough – as apparently is the case with nanotechnology, where real
human and animal lives as well as the environment are at risk – then
minimizing risk should be a guiding principle, rather than, say, the pursuit
of profits, adventure or glory. Individual actors may arrive at a different
conclusion, depending on their tolerance for risk and what value they place
on their own welfare. But if the decision involves risking the welfare of
countless others, it may be irresponsible to not adopt something like the
Precautionary Principle – in which case the stricter-law argument again
survives.[26]
(d) Self-Regulation Objection
This
position opposes more governmental regulation as a way to mitigate EHS
risks. Rather, it advocates self-regulation as an alternative, such that if
any additional regulation is needed, it should be left up to the industry to
decide what measures are appropriate.
There
are several reasons why this view is attractive to many.[27]
First, it promotes a smaller governmental footprint in business and
individual lives, so it instantly appeals to libertarians and some
conservatives. Also, it may make more sense for the nanotechnology
industry, that presumably knows its field the better than lawmakers do and
have a real stake in its work-processes, to devise and implement any
regulations, rather than some distant bureaucracy whose edicts are
inevitably borne from political compromise. By monitoring one’s own work,
self-regulation fosters a sense of responsibility within the industry.
Further, self-regulation seems to work, as evidenced by any number of
professional code of ethics.
Analysis
A
persistent criticism to the idea of self-regulation is that it seems to let
the proverbial fox guard the hen-house, or in other words, there is a
sizable conflict of interest.[28]
Can we trust an industry – any industry – to make its own rules when money
is involved? Can they fairly create processes that protect EHS interests of
the public, even at the expense of their own interests, financial or
otherwise?
Some
have called it a pragmatic paradox to ask a person or organization to obey
the law and, at the same time, be the law.[29]
Because there is no real separation between those enforcing regulations and
those subject to the regulations, the door seems to be open for self-imposed
regulations to be selectively enforced and for potentially covering up
illegal or unsafe practices.
Of
course, an enlightened company might see that it is in their best interest
to deliver only safe products, since harming one’s own customers is
counterproductive to one’s reputation and business as well as opens the
company to possible litigation. But will every company arrive at the same
conclusion, ignore short-term gains for long-term interests and follow the
rules? For self-regulation to work, nearly every industry actor needs to
comply, since all it takes is one clever company to sidestep
industry-imposed regulations for possible catastrophe to occur, i.e.,
the EHS risks may still exist and are not sufficiently mitigated by
self-regulation.
The
diagnosis of why actors fail to cooperate even though it is in their better
interests to do so – also known as a “Prisoners’ Dilemma” – is well covered
in literature.[30]
As groups such as OPEC have shown – whose members are notorious for ignoring
their own self-imposed quotas for oil production, even though compliance
gives them a means to control greater oil prices – it is a real challenge to
get organizations to do what they have committed to, even if breaking that
commitment will make them worse off in the long run.
Further, if governmental regulations are believed to be imperfect because
they contain political compromise, it is unclear why matters should be
different with self-regulation. An industry coalition is merely comprised
of companies, research organizations and individuals of varying influence
and interests – collectively representing a government of sorts, albeit a
smaller and more direct model, with the same tendencies and weaknesses.
In
nanotechnology, the problem is worse, since there is no single “industry”
that encompasses all the possible or even current applications in
nanotechnology. Unlike associations for architects, engineers, lawyers or
medical doctor, there is no such group for nanotechnologists, because their
work and interests are so varied – cutting across myriad industries and
companies, from Applied Materials to BMW to L’Oreal to Merck to Zyvex and
countless others. In fact, discussions about nanotechnology are usually
prefaced with the disclaimer that “nanotechnology” itself is a misnomer and
properly should be “nanotechnologies” to reflect the different lines of
research and applications.
Given
the above concerns, it is not apparent that self-regulation is a more viable
or desirable alternative to governmental regulation. Further, we should
note that this objection does not dispute the soundness of the stricter-law
argument: it agrees that something should be done to mitigate risk
associated with nanotechnology. That is to say, it does not dispute any of
the premises or logic in the formalized argument. It does not even dispute
any of the conclusions, including C3 that mandates stricter laws; rather,
the objection merely prefers self-regulation to governmental regulation.
Even if the reasons given for self-regulation over governmental regulations
are defensible, they appear irrelevant to attacking the stricter-law
argument; therefore, the stricter-law argument survives this objection.
At most, the objection might highlight the stricter-law argument, as
formulated in this paper, as incomplete: further argument is needed to show
that the stricter laws need to be mandated by government agencies as opposed
to by an industry coalition, which would then be the point of attack for
this objection.
(e) Other Harms Objection
This
objection, perhaps the most popular of the seven considered, suggests that
if stricter laws were imposed, there would be unacceptable costs or harms to
the nanotechnology industry now. Few objectors have specified these costs,
but we can imagine what some might be. If tougher regulation makes it more
difficult for a nanotechnology product to be delivered to market, e.g.,
due to extended product testing cycles or more comprehensive environmental
impact reports, then a business can reasonably expect to generate less
revenue over a given period, since they no longer or won’t as quickly have
that product on the shelves.
This
also means businesses might not be able to afford to keep the same number of
researchers or other employees on staff, leading to a loss of jobs. Without
as many active researchers – including those in academic or other
non-business labs, to the extent that these new laws affect their work –
nanotechnology will not advance as quickly as it might otherwise have. And
if other nations do not have the same stringent restrictions that we do, the
US may suffer a real competitive disadvantage globally. (We will discuss
other potential costs later, but these seem to be the primary ones
associated with this objection.)
Indeed, a recent report from Cientifica argues that today, even without the
stronger regulations proposed, the pace of funding, research and development
in the US is not fast enough to sustain business efforts and compete with
other nations.[31]
The report warns that not enough government spending in nanotechnology is
focused on areas of immediate commercial impact. And accessing this funding
is a slow process, taking an average of two to three years before it even
reaches the lab. The report also finds that, as a proportion of its gross
domestic product, the Japanese government spends three times as much on the
technology than the US does. As it applies to the Other Harms Objection,
this report would lend defense to the claim that the nanotechnology industry
needs more support, not more hurdles that would slow it down further.
Analysis
This
objection disputes premise P3 in our formalized argument above. By itself,
it does not deny that there may be EHS harms from nanotechnology (i.e.,
it does not dispute conclusion C1), but it asserts that EHS harms are not
an unacceptable consequence if stricter laws would cause greater harm,
thereby questioning conclusions C2 and C3.
The
objection – that an action will have burdens on the business side – is a
common response to nearly any proposal to introduce new tax or regulations.
For instance, a higher minimum wage would mean that some businesses will
need to spend more on payroll and perhaps pass along that expense to
customers in higher prices. And considering that some of these companies
might be barely profitable, it seems reasonable to predict that some may go
out of business. They simply cannot afford to spend more, without somehow
increasing revenue – and if they knew how to do that, they probably would
have done it already. (Though even in hindsight, it is not clear how many,
if any, legitimate businesses have closed as a direct result of paying a
higher minimum wage.)
But a
loss of jobs and revenue by itself is not necessarily a bad thing, if there
are other redeeming results. For instance, even if nanotechnology products
were allowed to reach the marketplace unhindered by new or strengthened
laws, their success would inescapably cause other sectors and companies to
lose jobs, just as word processing software displaced workers in the
typewriter industry. A nano-paint company whose products are more durable
and scratch resistant than traditional paint may likewise displace
competitors, so a loss of jobs and revenue by somebody may be unavoidable.
This is an illustration of “economic Darwinism”, presumably a desirable
situation where new, better innovations and businesses replace older, less
efficient or less effective ones. In the nanotechnology regulation debate,
the economic harms potentially caused by stricter nanotechnology laws may be
offset by the lives, animal and human, that the stricter laws potentially
save.
So
while we can empathize with the Other Harms Objection, it appears to be
one-sided and ignores the fact that there must be a tradeoff. Every
proposal has its costs, and there seems to a necessary downside for
somebody. But there is also an upside or benefits too; otherwise, the
proposal would have not been worth making in the first place, even if there
were no costs. The challenge is not just to identify these costs, but also
to evaluate the costs and benefits to determine whether the proposal is
worthwhile overall.
For
instance, we know that for every bridge or skyscraper that is built, a
certain number of construction workers can be expected to die or be
seriously injured on that job. This is not a trivial concern – but should
it be enough to derail a bridge or skyscraper project? We loathe to put a
price tag on a person’s life, such as in making a cold, utilitarian
calculation of lives lost versus economic benefits from the bridge. But the
fact is that such calculations must happen in real-world projects.
As it
applies to the issue at hand, the benefit of stricter regulations is that we
reduce the risk that nanotechnology may pose to the public, industry workers
and the environment. Does reducing that risk justify the potential loss of
profit, jobs and competitive advantage in the nanotechnology industry?
Finding the answer to this question depends on additional considerations:
How much would these new regulations reduce the risk – a substantial or an
incremental amount? How much burden exactly would these regulations put on
the industry? If we could quantify likely and worst-case scenarios, how
many consumers might be harmed – and what kind of harm – without new
regulations, and how much would the industry lose in jobs and profits?
These are questions that will require more research to answer, although a
common intuition might be that people should be valued more than profits, no
matter how much is at stake for an industry – a point we will not take up in
this paper.
However, matters can quickly become more complicated without debating that
point, when one considers the role of rights in this discussion. If we have
a basic human right not to be unjustifiable harmed and the government has an
obligation to protect its citizens (from internal and external threats,
including unsafe commercial products), then it seems that stricter
regulations are needed to protect this right and fulfill the government’s
obligation.
But
on the business side, it is less clear what rights would be violated by the
introduction of stronger laws. Do we have a right to the jobs that might be
lost in nanotechnology? Do businesses have a right to develop products that
are in compliance with existing laws (or is there a corporate moral
responsibility to employees and customers, beyond what is required by law)?
Even
if we answer “yes” to these questions and others, it may be useful to note
the types of rights at stake. Our individual right to not be unjustifiably
harmed is a “negative” right, meaning that it requires others from not
interfering from an action.[32]
But any business-related rights seem to be “positive” rights in that they
require some good or service to be provided.[33]
As other examples, our right to free speech is a negative right, since it
requires that others refrain from preventing us to speak our minds. In
contrast, our right to education is a positive right, since it requires that
we are provided with access to learning.
The
relevance of this distinction is that negative rights, it has been argued,
are stronger than positive rights.[34]
Negative rights can be observed by, for instance, simply not interfering
with someone else’s speech or not harming a person unjustifiably; no action
is needed. But positive rights are more difficult to respect, since they
require an action or series of actions that may take some effort, for
instance, hiring teachers and building classrooms in order to provide a
public system of education. Because negative rights take less effort to
respect, it is less forgivable to violate a negative right.[35]
So
even if the jury is still out on whether the cost to business and industry
is really worth the reduction in EHS risk from stricter laws, there seems to
be prima facie reason to favor stricter laws on grounds that it
protects our negative right to not be harmed, which must take precedent over
any positive rights of the nanotechnology industry – and it is not even
clear what rights are at stake in business and industry. Another prima
facie reason for some individuals may be based on the aforementioned
“people over profits” intuition.
We
should note that the Other Harms Objection, by itself, does not dispute the
soundness or logic of the stricter-law argument. Rather, it attempts to
show that P3 should not be accepted by shifting the focus to a contest
between benefits and harms, suggesting that more damage than good will be
caused by stricter laws – which we are taking here to be, at best, an open
question or stalemate. Therefore, in our analysis, the stricter-law
argument appears to survive this objection for the time being.
Further, we should also note here that the Self-Regulation Objection and the
Other Harms Objection are incompatible, i.e., it is logically
inconsistent to hold that stricter regulation would hinder a fledgling
nanotechnology industry and that self-regulation is the answer. Any
self-imposed regulations nevertheless represent more regulations than which
currently exists. But if it also believed that more regulation would stunt
industry growth, then self-regulation too must impede industry progress –
unless self-regulating is a hollow or token gesture to appease regulators
and the concerned public.
(f) Future Harms Objection[36]
If
there is something reasonable, but not completely convincing, about the
Other Harms Objection, then we can perhaps strengthen it here by pushing its
time-horizon farther out, giving the argument more consideration. In doing
so, we can suggest that the preceding objection really did not consider
enough harms: it looked only at immediate or short-term harms associated
with stricter laws. But nanotechnology is something that is forecasted to
give humanity profound benefits once it matures, and we have yet to consider
those goals in pursuing nanotechnology. If we slow the industry down today,
will that prevent or hinder us from realizing these benefits later –
benefits that may plausibly outweigh EHS risks that exist either today or in
the future?
In
the following, we will briefly present some of the risks of moving too
slowly in nanotechnology that could be advanced by the Future Harms
Objection, which is not an objection we commonly see but is a view held or
implied by at least some nanotechnology advocates. Taken together, these
risks raise the stakes involved in the stricter-law debate and may present a
more compelling challenge.
(i)
Economic Benefits
Nanotechnology is predicted to be a trillion-dollar industry by 2015.[37]
While other countries – including Brazil, China, South Korea, India, Israel,
Russia and many European nations – proceed at full speed ahead, the US and
any other nation may lose significant economic benefits if it is not among
the leaders in nanotechnology. Depending on the scale of economic benefits
a nanotechnology industry or industries can provide, many lives in the US
may be saved or made better, given that poverty is one of the greatest
determinant of life expectancy. Further, the jobs that stricter US laws
might deprive might not simply be as a result of preventing new lines of
business from being created, but those are jobs that now might be lost
overseas, if another country or countries take the lead and develop those
commercial innovations.
So the problem is that, while the US may pride itself for being
democratic in recognizing and considering various interests among its
population, from business owners to environmentalists, other governments may
not be constrained by this guiding principle and can push nanotechnology
research and products ahead, unencumbered by laws and regulations that may
be stricter in the US. This may lead to a loss of economic benefits on a
larger scale than previously considered, since in this scenario,
jumpstarting the nanotechnology products industry then would take more than
firing the research and manufacturing facilities back up; we would then need
to play catch-up in competing with other nations who may have a significant,
potentially insurmountable, head start.
(ii) Military Implications
Nanotechnology promises to have significant military applications, and
indeed the military is a key driver of nanotechnology research for many
nations, including the US. These predicted innovations include new
offensive capabilities (such as energy, robotic and stealth weapons) and
defensive (such as stronger armor and better detection and jamming
capabilities). The military is also leading the charge to develop medical
advances that can be used on the battlefield and better information systems
used for intelligence gathering as well as control and command centers.
With nanotechnology, production speed of military assets can be increased to
give a sizable advantage in numbers alone, let alone their efficiency.
Nanotechnology, then, has the potential to take a military force into the
next generation and beyond. And to the extent that a balance of military
powers around the world is needed to maintain some semblance of global
security or peace, nanotechnology could disrupt this balance, if it is
developed unevenly by current military powers. Never mind how a nation
would feel to lose its position or influence in global affairs, a more
worrisome question to many is: what would be the effect of a non-democratic
government having the most advanced nanotechnology capabilities or
developing them first? Would that subject the nation to a foreign attack
that cannot be answered in kind? The potential loss of security and lives
needs to be added to the list of harms, if stricter laws are also applied to
or affect military developments.
(iii) Reversing Environmental and Health Risks
The
current debate over stricter laws is grounded in concerns that
nanotechnology products today may be harmful to the environment and our
health. But it is also important to note that nanotechnology is also
expected to enable us to reverse many conditions that afflict our
environment and health. Nanotechnology is being applied, for instance, to
create better filters that can provide clean water and air, which can help
Third World countries that need it the most.
Likewise, it can help ameliorate the large environmental impact of dirty
industrial processes, including those having to do with energy generation.
New and additional sources of energy, such as cost-effective solar energy,
will reduce or eliminate pressure on current natural resources. Chevron
recently announced working on nanotechnology that can convert tar found in
sand into useable oil, which would serve a dual purpose of cleaning up the
environment.[38]
In the distant future, nanotechnology may be able to rebuild our depleting
ozone layer or create nanobots that can “eat” oil spills and other
contaminants.
Beyond environmental benefits, nanotechnology is being applied to
agriculture to better feed the hungry and to medicine to save more lives.
So if we are worried today about EHS risks in nanotechnology products, we
should also keep in mind the EHS risks they could mitigate or solve with a
sufficient time horizon, including today’s risks.
Analysis
This
objection is more robust that the preceding one for a number of reasons.
First, it adds longer-term benefits (or harms from not pursuing nanotech) to
the list of those that should be considered for a more complete picture of
nanotechnology’s social and economic impact. This, in turn, lends support
to the Precautionary Principle Objection: given these other considerations,
risk aversion seems less to be a reasonable strategy, to the extent that
potential benefits seem to far outweigh potential harms in aggressively
pursuing nanotechnology.
But
if this is such a compelling argument, why do we not see more people
(explicitly) advance it? One reason seems to be that this sort of objection
requires making mid- and far-term speculations about nanotechnology, which
is always risky business, especially if it also raises other ethical and
societal concerns. For instance, nanotechnology’s role in the military
might resurrect questions from the Cold War about mutually-assured
destruction and first-strikes. And many of the more interesting predictions
about nanotechnology revolve around “molecular manufacturing” – an advanced
form of nanotechnology that involves building designer objects one molecule
at a time, raising the possibility of creating virtually any object we want,
from food to weapons; however, this is very much an area that many or most
mainstream scientists are reluctant to speculate about or openly dismiss.[39]
And if molecular manufacturing were more widely predicted to be plausible,
it may open a Pandora’s Box of potentially disruptive and harmful effects on
global trade and therefore politics, all complex questions that would then
need to be addressed. Again, all this is speculative, so it is unclear what
the possible far-term harms are and their probability, even if we are
confident about far-term benefits.
The
Future Harms Objection also forces us to confront the unpleasant question of
what the limits are to our right not to be unjustifiably harmed: is it
morally permissible to risk the health of, say, 1,000 or even 10,000
manufacturing workers and consumers today, if we can save 100,000 or
1,000,000 other lives later through the aggressive pursuit of
nanotechnology? (These numbers, of course, are very difficult to forecast
and are used merely as examples here.) Also, speaking of future
generations, if federal funding is a zero-sum game, i.e., funding
nanotechnology now takes away from the budget in another area, what about
lives today that could have been saved with the funding currently diverted
to nanotechnology, which is more an investment in tomorrow? These are
questions that have no simple or universally-accepted answer, much less one
that a legislator would want to tackle.
As
such, this particular objection, as with the Other Harms Objections, again
depends on other factors, namely rights, that cannot easily be reconciled on
an accounting ledger of benefits versus harms. So if we are to extend the
time horizon in the Other Harms Objection to make the Future Harms
Objection, then it seems only fair that we must consider long-term harms of
not having stricter laws as well – again, leading us back to a
probable stalemate in the debate.
Though the Future Harms Objection appears to be stronger than its
predecessor, the numbers involved are too difficult to quantify and
forecast, as well as difficult to process in the framework of human rights.
Further, though this objection is related to the Other Harms Objection, the
objectors seem to represent very different positions: to the extent that
mainstream scientists and nanotechnology executives support the Other Harms
Objection, they may be reluctant to speculate about nanotechnology’s promise
beyond the near future, fragmenting support for the Future Harms Objection.
Of
course, none of this speaks to the objection’s soundness or logic. If
we can reasonably project overall benefits and harms across time, and
if the benefits sufficiently outweigh the harms, and if the
relevant human rights are not unjustifiably violated, then the Future Harms
Objection could be defensible. But these variables are perhaps too
speculative to nail down with much confidence; therefore, the premise P3
that it was designed to attack seems to survive, or at least it has not been
convincingly shown that it should be rejected.
(g) Better-Us-Than-Them Objection
The
final objection we will consider in this paper is not one we see explicitly
in nanotechnology-related literature, but it is one we have heard
anecdotally. It might start by pointing out that many democratic nations,
such as the US, occupy a fortunate position in the world where they can
afford to be reflective about matters of ethics and philosophy. We have
that luxury, but many other countries do not; they are embroiled in a more
desperate fight for survival. And if the means became – and at some point
will become – available to them, chances are good that they will pursue and
exploit nanotechnology without such strict regulations, if any regulations
at all, to impede research and development, perhaps for the base reasons of
national glory or military superiority and even at the expense of their own
citizens and environment.
Do we
really want nanotechnology to be dominated by other nations of whom we are
already suspicious? Even if we can take the higher moral ground and lay
aside our national prejudices, it does not change the fact that the other
country will probably not – and not care. Imagine then how the world and
beyond might look, if that foreign country were to be the ones who control
nanotechnology, which could be the key to controlling literally everything.
So if
not only for this reason, we must keep our lead in developing
nanotechnology; we don’t want to live on Planet Kim Jong-il. For the same
reason, even if we think our nano-future is bleak anyway, it could be worse
if the wrong nations were to be the ones who shaped it the most.
So we
must “own” nanotechnology and proceed full speed ahead, without stricter
regulations to impede us; and when we do, we can take a rest and become
reflective again, returning our attention to EHS matters. By deferring that
moment of moral questioning from now to then, we would then be in a time and
a place when we can do something about our angst and any harm previously
caused. We can give nanotechnology to other countries, if we’re so
concerned about justly distributing tools that can help humanity. We can
try then to build that utopia we had only read about. Even if we can’t do
any of this, this possible world seems much nicer that the one where, say, a
non-democratic country had its way with the world, to the extent that our
utopia is more utopian and our values more valuable (to us at least).
That’s why we – and by “we”, I mean your respective nation – need to
dominate nanotechnology research, even if some problems are caused along the
way, which appear to be smaller problems within a much larger picture. Now,
this is not the ideal scenario, but it is a rationale one. We would rather
not be in a dangerous competition with another country or countries; but the
fact remains that we are. And that’s the difference between philosophy
ethics and real-world ethics. Or so this objection might go.
Analysis
As
with the previous two objections, this one disputes premise P3 in our
formalized argument. It does not deny that there may be EHS harms from
nanotechnology (i.e., it does not dispute conclusion C1), but it
asserts that EHS harms are not an unacceptable consequence if
stricter laws would cause greater harm, thereby questioning conclusions C2
and C3. In fact, it argues that greater harm would be caused by not
aggressively pursuing nanotechnology and allowing other nations to take the
lead; therefore, EHS harms are the lesser of two evils and should be
preferred and accepted over the alternative.
This is a very pragmatic –
and forgivable – position to take on the role of ethics in society and
especially in a democracy. But where risk-aversion may not always be the
best strategy as the previous objection asserted, being pragmatic also might
not be the best course of action or the right thing to do.
For instance, consider the
ban on human cloning that exists in some countries. It would be pragmatic
to argue that at some point, somewhere in the world, someone will clone a
human being. If this is an inevitable event, then it would be better if we
(our nation) were the ones who cloned a human first; we could at least
ensure that safeguards were in place, that the clone could be treated
humanely, that we would put any knowledge we gained to good use, etc. But
if this line of reasoning fails to work in human cloning (as well as other
cases such as an arms build-up), then it seems to suffer from the same
condition when applied to nanotechnology.
Further, as we discussed in the previous two objections, this objection
ignores the role of human rights, the rights of citizens today to not be
harmed; or it at least is willing to sacrifice these rights for a future
benefit, which is a controversial position to adopt.
Finally, there is no guarantee or even reasonable assurance that if we
pursue nanotechnology without restriction, then our nation will have the
lead; it is very much still an open field. So without some safeguards in
place at the national level if not also globally (such as treaties to limit
the threat of mutually-assured destruction, in the case of an arms
build-up), there is still potential for catastrophe to occur, especially if
we move forward recklessly. And a more sensible or alternative solution to
the situation posited by the objection seems to be that we should advocate
greater regulations and oversight – or at least cooperation as a first step
– on a global scale, if stricter regulations only at the national scale
would impede that particular nation.
The
belief that something is inevitable, whether nanotechnology or Armageddon,
does not seem to be a good enough reason to rush towards it, especially if
we can buy some time by moving a bit slower – precious time needed to
perhaps develop safeguards to mitigate any associated negative impacts.
4 An Interim Solution?
A
full defense or analysis of the preceding objections, particularly the last
three, is beyond the scope and goals of this paper, but there seems to be
enough reason to believe that they are not entirely without merit. At the
same time, there does not (yet) seem to be enough there to believe that the
stricter-law argument should be rejected. So an interim or compromise
solution may be needed now to cover both contingencies.
Moreover, even if stricter laws and regulations are ultimately justified,
there are good reasons to think that they cannot be enacted anyway, or at
least face stiff resistance with lawmakers and regulatory agencies,
particularly in the US. Clarence Davies, the author of the Woodrow Wilson
International Center report that sparked today’s stricter-law debate, even
admits that: “In the U.S. political system, it has never been easy to pass
new laws regulating commercial products. In the current political climate,
it is close to impossible.”[40]
Changing regulatory policy is likewise a formidable challenge.
That
is to say, the US legislative and regulatory systems are notorious for being
complicated and mired in debate, so barring an urgent need – which many
believe has not yet been established for nanomaterials – it does not seem
optimistic to think that new laws or stronger regulations can be enacted in
the near future, even if needed. But perhaps we can suggest a simpler
solution here.
Running Faster to Catch Up
There
is a sense with many that nanomaterials found in today’s products have not
been established yet as a clear and present danger, which may be part of
public, legislative and regulatory hesitation to propose dramatic changes to
current rules. Under this reasoning, rushing new laws or regulations
through until more facts are revealed may be the same kind of mistake as
rushing nanotechnology products into the marketplace without fully
considering their impact on health, environment or even society and ethics.
But
we can acknowledge this position while at the same time be prepared
to adopt new regulations if and when more studies show that nanomaterials
are indeed harmful and that new laws are warranted. That is to say, even if
we are not ready to call for stricter policies now, we can and perhaps
should have a contingency plan or “Plan B” developed, discussed and ready to
be implemented, should more compelling evidence be presented in favor of
stricter laws. (The trick here, of course, is to specify the details of
such a “Plan B”, which too is beyond the scope and goals of this paper.) If
we adopt a wait-and-see attitude towards nanomaterials, then it is incumbent
upon us to aggressively conduct safety testing.
However, a critical point in the nanotechnology regulatory debate is that
current testing methods may be inadequate against nanomaterials and
products, so it is not clear that more testing will get us far if we do not
improve those methods; therefore, it is also incumbent upon us to
aggressively develop new testing methods in order to conduct EHS testing
effectively.
The
proposed solution, then, is rather than slowing the nanotechnology industry
down through more regulations, as some claim they would, regulatory planning
as well as EHS testing and research need to run faster and catch up – just
as experts have called upon ethics to do.[41]
Starting a serious dialogue today with policymakers would help compensate
for the slow time-to-action for creating new laws, particularly if we are
just idly waiting for more research to come out that would compel action.
And continuing to support and fund research into nanomaterial safety is
critical to evolve the safety standards that exist in current laws and
regulations. Progress is being made in this area, as the aforementioned
UCLA researchers last year, and others since then, showed by developing a
new testing model to evaluate the safety and health risks of engineered
nanomaterials.
Further, if we can improve testing methods, then we may not need new laws or
stronger regulations, at least in the meantime. Where current laws and
regulations require materials to pass certain safety and health standards,
we may be able to simply evolve and raise those standards as scientific
understanding and testing methods evolve, as opposed to erecting new
regulations. This would only require that current policies recognize
and utilize the latest advances in safety and health testing, which is a
reasonable expectation.
[Note:
The WWICS report criticizes some of the relevant regulations as being
unclear or having loopholes or failing to apply to critical industries, such
as cosmetics, so improved materials testing admittedly would not solve those
deficiencies. However, those problems exist independently from
nanotechnology: they are not specific to nanomaterials and have been issues
for some time now. As such, they present a broader challenge in the field
of a regulatory reform and therefore are not so much addressed in our
discussion here.
Without developing new testing methods, it does not seem that new or
stricter laws can address risks posed by nanomaterials anyway, if current
methods fail us. Therefore, incorporating these new standards is the
salient point in the recommendation to create stricter laws and
regulations. Or to put it another way, if current testing methods are
inadequate to show that nanomaterials are harmful, and we know that they are
harmful at least in some cases, then any new or stronger law that is still
based on these current methods does not seem to add much value, just more
barriers to business.
For
instance, would harsher civil and criminal penalties or more detailed
environmental impact reports cause company executives to act any
differently, if no different methods were available to support or refute
previous claims of product and materials safety? They would most likely run
more of the same tests to arrive at the same conclusion. This would seem to
be an instance of GIGO or “garbage-in-garbage-out”, where without new
testing methods, we are using inadequate processes that inevitably generate
inadequate conclusions.
If it
makes sense to push harder for better testing methods, that still leaves a
problem of a stop-gap measure in the meantime, since new funding takes a
significant amount of time to disburse and research often proceeds slowly as
well. One solution is to accept the proposal for the nanotechnology
industry to regulate itself, as an alternative to doing nothing. To repeat
a key point in our discussion of the Self-Regulation Objection above, the
objection itself does not dispute the soundness of the stricter-law
argument. In fact, it agrees that more regulations are needed, but that the
nanotechnology industry should be the one to create and implement them,
since the industry knows nanotechnology the best and has a direct interest
in sustaining the field.
At
best, self-regulation will eliminate EHS risks in nanotechnology to at least
some degree; at worst, it seems that it would not create any additional EHS
risks but at least represents a good-faith effort to mitigate those risks.
If and when governmental regulations are needed, that process can be
informed by the prior exercise of self-regulation.
Open Questions
Of
course, the interim solution proposed above is a conceptual framework, and
many real-world details still need to be worked out. For instance, are
there any examples of “Plan B” approaches to suggest that such a proposal
can actually work? What are the specific steps we would need to take to
strengthen pre-regulatory planning, methods for testing materials, and
toxicology testing? Do we need (paradoxically) a legal basis for ensuring
that this greater focus on EHS risks and testing actually occurs, for
example, by stipulating that some percentage of all nanotechnology research
funds will go towards these areas?
How
do we know that more and faster study of the EHS aspects of nanotechnology
can keep up with the full-throttle research and development (R&D) and
commercialization of nanotechnology in not just the US but also abroad? And
how much more funding is needed for ethics and risk to catch up with R&D?
If other nations do not focus as much on EHS risks, would the US (or any
other nation that adopts such an interim solution) need to compensate with
even more funding, given that nanotechnology ultimately knows no national
boundaries and impacts the entire world, especially given a global economic
ecosystem?
And
if additional funding is warranted, where would that come from? Would it be
diverted from other programs that are working on current cures for current
ills, outside of nanotechnology’s risks (which seem to be future risks, as
opposed to actually harming people or the environment right now)?
These are all good questions, and we do not intend to present a complete
solution here; but we merely hope to provide a starting point for discussion
towards a feasible solution while the nanotechnology regulation debate rages
on. Moreover, to the extent that nanotechnology is a highly
interdisciplinary area, we would expect that collaboration among lawmakers,
scientists, ethicists, economists, and so on would be needed to account for
the complicated issues arising from nanotechnology – more than just what a
few ethicists can achieve here.
5 Conclusion
Though we would like to avoid the difficult comparison of nanotechnology’s
possible benefits with its possible harms in this paper, it seems that what
is known now – and not just speculation, albeit educated – is that
nanotechnology products today provide only incremental value or
changes to existing products, i.e., they represent “better
mousetraps” and not yet the revolutionary products predicted. On the other
hand, the risks that nanomaterials pose today may be severe, possibly
including death of animals and people.
Therefore, we conclude that there is reason to think that current laws do
not fully account for nanotechnology, if potentially-hazardous
nanotechnology products are reaching the marketplace. Nanotechnology,
though technically not a “new” science, nevertheless introduces new
materials that may defy current testing and safety standards not designed
with nanosized particles in mind. And research already indicates that
nanomaterials are hazardous to the environment and human health, which is
made all the more troubling considering that some nanomaterials come into
direct contact with human beings, such as that in sunblock rubbed into one’s
skin.
But
here’s an important caveat: even if current laws are inadequate, would new
or stronger laws be enough to fill that gap? In other words, the regulatory
debate has been centered on the question of whether we need more
regulation; but the more relevant question may be, why are current
laws ill-equipped to deal with nanotechnology? The answer, or at least the
complete answer, might not be that we are missing some law or process, but
that the testing methods and standards built into existing laws have not
caught up with the pace of nanotechnology.
While
cleaning up and streamlining our maze of regulatory processes would
certainly be helpful in general, unless we can quickly advance methods to
more effectively test for environmental, health and safety risks in
nanomaterials, new or stricter laws may serve to only slow down the industry
through procedural changes rather than to improve our evaluation of
nanomaterials through substantive or qualitative changes in how we approach
such materials.
So
our suggestion is, rather than causing the nanotechnology industry and
business to slow down now – which risks being a knee-jerk reaction to create
more laws in the face of a problem – other areas can be stimulated to
quickly catch up. Regulatory pre-planning needs to catch up with the
growing number of studies that confirm nanotechnology’s EHS risks, in case
new laws are ultimately needed. And testing methods and standards need to
catch up to better confirm the safety of nanomaterials, which could occur
within the framework of existing laws, and screen out the products that are
hazardous to our environment, health and safety. At the same time, we can
take the nanotechnology industry up on its offer to regulate itself; there
does not seem to be any harm in that, especially if the alternative is to do
nothing.
There
are several advantages of such a solution. First, while benefits today in
nanotechnology (i.e., better sunblock, better sports equipment,
better pants, etc.) might not justify its risks, this might not remain the
case in the future. And overburdening the nanotechnology industry with
regulation, though well intended, may ultimately cause more damage than
good. So we need to find a reasonable balance that responsibly promotes
innovation in nanotechnology while at the same time safeguards EHS interests
– in addition to other interests that nanotechnology may run up against as
the field matures, such as privacy.
Second, a compromise may be needed anyway, once we recognize that there are
significant challenges in creating new laws or regulations, and that there
is presently little public awareness of these issues that might apply
pressure to policymakers. Neither business interests nor EHS interests will
be going away any time soon, nor do we really want either to. But we have
seen the undesirable effects of placing too much focus on either business or
EHS, so finding a balance between these legitimate interests is needed,
particularly in a democracy that values a diversity of opinions.
Third, such a solution may serve to accelerate the industry
responsibly – giving us new confidence that our nanoproducts are safe or
identifying the ones that are not. Research into new testing methods would
also give us new insights into nanomaterials, perhaps even new applications.
In
Greek mythology, Prometheus – the titan of forethought – gave fire to
mankind as a gift (though he was summarily punished by the gods with
unending torture). In nanotechnology, we also have a rare gift that can
enable us to profoundly change our world. But just as we should not play
with fire before we learn how to control it or its risks, commonsense
requires the same for nanotechnology. With more effective regulations and
new safety testing methods, we can help ensure that nanotechnology does not
burn our world down.
__________________________________________________________
Patrick Lin is
the director of The Nanoethics Group—a non-partisan organization focused on
the social and ethical impact of emerging technologies, especially
nanotechnology. He is a visiting assistant professor in the philosophy
department at California Polytechnic State University, San Luis Obispo, and
also holds academic appointments at Dartmouth College as well as Western
Michigan University. Dr. Lin earned his B.A. from University of
California at Berkeley and his M.A. and Ph.D. from University of California
at Santa Barbara.
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[1] J.
Clarence Davies, “Managing the Effects of Nanotechnology”, a report
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[2] In this paper, we will use “laws” and “regulations” interchangeably for
the sake of simplicity, though we recognize a distinction between the two,
which is not material to this discussion.
[3] For instance: Sheila Jasanoff, Designs on Nature: Science and
Democracy in Europe and the United States, Princeton: Princeton
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[4] Eva Oberdörster, “Manufactured Nanomaterials (Fullerenes, C60) Induce
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[5] Ralph Merkle, “It’s a Small, Small, Small, Small World”, MIT
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[6] Vicki Colvin and Mark Wiesner, “Environmental
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[7] Lawrence Gibbs and Mary Tang, “Nanotechnology: Safety and Risk
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[8] Ibid.
[9] Ibid.
[10] For instance: David Berube, “Regulating Nanoscience: A Proposal and a
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[11] For instance: Australian Green Party, “Call for moratorium on
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[12] U.S. Environmental Protection Agency, “EPA Seeking PFOA Reductions”,
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[13] Ibid.
[14] Brian Ross/ABC News, “Government Moves to Curb Use of Chemical in
Teflon”, January 25, 2006.
[15] For instance: Ashok Agarwal, et al., “Effect of cell phone usage on
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23, 2006.
[16] Reuters News, “Testing Cell Phone Radiation on Human Skin”, March 3,
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[17] For various formulations, see for instance: John Weckert and James
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[18] Brian Ross, ibid.
[19] U.S. National Nanotechnology Infrastructure Network website, accessed
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Lutz Mädler and Ning Li,
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[22] Cass R. Sunstein, “Cost-Benefit Analysis and the Environment”,
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[23] “National Nanotechnology Initiative: Leading to the Next Industrial
Revolution”, a report published by US National Science and Technology
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[24] Jane Macoubrie, “Informed Public Perceptions of Nanotechnology and
Trust in Government”, a report published by Woodrow Wilson International
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[25] For instance: Thomas Hobbes, Leviathan (1651), chapter 14,
section 8; and many other subsequent political scientists.
[26] For a more complete discussion of the Precautionary Principle, see
Weckert and Moor, ibid.
[27] William J. Witteveen, “A Self-Regulation Paradox: Notes Towards the
Social Logic of Regulation”, Electronic Journal of Comparative Law,
January 2005, vol. 9, issue 1.
[28] Ibid.
[29] Ibid.
[30]
Robert Axelrod, The Evolution of Cooperation, New York: Basic Books,
1984.
[31] “Where Has My
Money Gone? Government Nanotechnology Funding and the $18 Billion Pair of
Pants”, a report published by Cientifica, January 2006.
[32] Leif Wenar, “Rights”, The
Stanford Encyclopedia of Philosophy,
Winter 2005 edition, Edward N.
Zalta (ed.).
[33] Ibid.
[34] Ibid.
[35] Ibid.
[36] Research assistance for this section provided by Tihamer Toth-Fejel,
M.S.E.E., General Dynamics Advanced Information Systems.
[37] Mihail C. Roco and William Sims Bainbridge (eds.), “Societal
Implications of Nanoscience and Nanotechnology”, a report published by the
US National Science Foundation, March 2001: 3.
[38] Jack Uldrich, “Nanotech of the North”, The Motley Fool, March
26, 2006.
[39] Rudy Baum, “Nanotechnology: Drexler and Smalley make the case for and
against ‘molecular assemblers’”, Chemical & Engineering News,
December 1, 2003, vol. 81, no. 48: 37-42.
[40] J. Clarence Davies, “Managing the Effects of Nanotechnology”, a report
published by Woodrow Wilson International Center for Scholars, January 2006:
10.
[41] Anisa Mnyusiwalla, Abdallah S. Daar and Peter A. Singer, “’Mind the
Gap’: Science and Ethics in Nanotechnology”, Nanotechnology, March
2003, vol. 14, issue 3: R9-R13.
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