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2000 U. Ill. L. Rev. 83 (2000)
The Triumph of Technology-Based Standards

handle is hein.journals/unilllr2000 and id is 93 raw text is: THE TRIUMPH OF TECHNOLOGY- BASED STANDARDS Wendy E. Wagner* In the following article, Professor Wagner chooses a heretofore unpopular approach to pollution control, technology-based stan- dards, as her favorite innovation in environmental law. In selecting technology-based standards, Professor Wagner has chosen to focus on the fundamental or base innovations at the core of environmental programs rather than secondary or tertiary approaches that merely fine-tune existing regulatory controls. The Environmental Protection Agency creates technology-based standards to control air, water, and land pollution. Only after deter- mining the capability of currently available technologies' to meet con- gressional goals with regard to an industry will the Agency set its standards for that industry. Professor Wagner argues that this proce- dure provides a moral imperative for regulated entities to do their best when public health and the environment are at stake. She also con- tends that the ease of promulgation, superior enforceability, even- handedness in application, and eminent adaptability of technology- based standards all serve to enhance their desirability as a founda- tional regulatory program. Professor Wagner responds to the critics of technology-based standards by showing that these standards are generally more efficient as base innovations than alternative approaches, such as cost/benefit- or market-based controls. In addition, she argues that, rather than freezing technology, the standards can create incentives to pioneer the development of new technologies. Finally, Professor Wagner points to the untapped capabilities and potential breadth of the future appli- cations of technology-based standards as reasons to embrace these standards as a trustworthy approach to environmental protection. Although many features of U.S. environmental law have been justly criticized, the one feature that seems safe from reproach is the number * Professor, Case Western Reserve University School of Law and Weatherhead School of Man- agement. Many thanks to Thomas McGarity, Kevin Snape, and Michael Walker for helpful comments on an earlier draft of this article and to Tanya Aure, Ana Katic, and Christina Tuggey for invaluable research assistance.

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