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36 Envtl. L. Rep. News & Analysis 10924 (2006)
Flexibility, Clarity, and Legitimacy: Considerations for Managing Nanotechnology Risks

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Copyright © 2006 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.


36 ELR 10924


ELR


12-2006


                                            NEWS&ANALYSIS








Flexibility, Clarity, and Legitimacy: Considerations for Managing
                                     Nanotechnology Risks

                                            by Jonathan M. Gilligan

                   Editors'Summary: Risk assessment is one tool of legal and policy decision-
                   making, and one that may play a large role in establishing nanotechnologypol-
                   icy and regulations. In this Article, Jonathan Gilligan analyzes different meth-
                   ods of risk assessment and applies these methods to nanotechnology. Gilligan
                   challenges the notion that people perceive and react to risk in a logical way,
                   postulating that both experts and laypeople are susceptible to irrationality
                   when it comes to riskperception. He concludes with a determination that a sin-
                   gular approach to risk management of nanotechnology may not be enough;
                   rather multiple risk management methods should be utilized depending on
                   qualitative assessments of different nanotechnologies.


I. Introduction

Environmental hazards associated with nanotechnology
present particularly difficult problems for regulators. The
classic stepwise approach of problem identification, quanti-
tative assessment, and management' provides little guid-
ance because both the quantity and variety of nanomaterials
being produced by industry are growing exponentially and
substantially outpacing our ability to identify potential haz-
ards, much less to measure and characterize their effects. It
is important to establish a risk-management regime that is
flexible enough to achieve its goals in an atmosphere of
great uncertainty and rapidly changing information. Before
addressing the difficulties of identifying and assessing
nanotechnological hazards, we must determine both the
goals of a regulatory regime and the criteria for judging
its success.
  Whatever the goals of a government policy, a primary cri-
terion for success must be public legitimacy. If the public
Jonathan Gilligan is a Senior Lecturer in the Department of Earth and
Environmental Science at Vanderbilt University, where he also serves
as a Fellow of the Center for the Study of Religion and Culture and the
project coordinator for the Transdisciplinary Initiative on Environ-
mental Systems.
  1. COMMITTEE ON THE INSTITUTIONAL MEANS FOR ASSESSMENT OF
    RISKS TO PUBLIC HEALTH, RISK ASSESSMENT IN THE FEDERAL
    GOVERNMENT: MANAGING THE PROCESS 19-20 (1983) [hereinafter
    RISK ASSESSMENT].
  2. DEBORAH STONE, POLICY PARADOX: THE ART OF POLITICAL DECI-
    SION MAKING 285 (Revised ed. 2002):

       Legitimacy is in some sense the political scientist's equiva-
       lent of the economist's invisible hand: we know it exists as a
       force that holds societies together, but we cannot give very
       satisfactory explanations of how to create it or why it is some-
       times very strong and sometimes seems to disappear. Never-


will not accept a policy, then no matter how sound the rea-
soning behind it, the policy will not work. The public may
ignore a rule, change the rule through political pressure on
legislators, or override the rule through referenda or action
in the marketplace.3
  But there is more to making policy than catering to public
taste. Regulatory policy should also aid the smooth func-
tioning of markets. Buyers and sellers require information,
and where important information is not readily available,
regulations may seek to provide it.4 Producers and consum-
ers must be able to plan for the future, so regulations should
create clear and predictable responsibilities and liabilities,
and buffer the effects of surprising new information.
  Markets do well at managing many aspects of voluntary
exposure to hazards, but regulations are necessary to man-
age the hazards of involuntarily exposure both by keeping
the danger within acceptable limits and by ensuring that the
       theless, we can say that rules work best when they are per-
       ceived as legitimate.
    See also CASS R. SUNSTEIN, RISK & REASON: SAFETY, LAW, AND
    THE ENVIRONMENT 294 (2002) ([T]echnocrats tend to ignore the
    fact that to work well, a regulatory system needs one thing above
    all-public support and confidence. This is so whether or not a lack
    of confidence would be fully rational.).
  3. See SHEILA JASANOFF, THE FIFTH BRANCH: SCIENCE ADVISERS AS
    POLICYMAKERS 123-51, 193-207 (1990) [hereinafter FIFTH
    BRANCH]; Sheila Jasanoff, Civilization & Madness: The Great BSE
    Scare of 1996, 6 PUB. UNDERSTANDING SCI. 221, 221-26 (1997)
    [hereinafter Civilization & Madness]; Sheila Jasanoff, EPA's Regu-
    lation of Daminozide: Unscrambling the Messages of Risk, 12 ScI.
    TECH. & HUM. VALUES 116, 116-18 (1987) [hereinafter Regulation
    of Daminozide].
  4. See George A. Ackerlof, The Marketfor Lemons: Quality, Uncer-
    tainty, and the Market Mechanism, 84 Q. J. ECON. 488, 499-500
    (1970); George J. Stigler, The Economics of Information, 69 J. POL.
    ECON. 213, 224 (1961).

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