It's Time for the Environmentalists to Think Small--Real
Small: A Call for the
Involvement of Environmental Lawyers in Developing Precautionary Policies for
Molecular Nanotechnology
By:
Paul C. Lin-Easton
Georgetown International Environmental Law Review
Fall 2001
Section: Vol. 14, No. 1; Pg. 107-134; ISSN: 10421858
Abstract:
This paper alerts
the environmental law community of the implications of molecular nanotechnology, especially its
potential for wreaking extreme harm on
the global environment, and to the precautionary measures proposed by
the nanoscience community. It discusses
the environmental implications of this new
technology. The paper also examines risk management measures being
discussed by the nanoscience community
and scrutinizes them under the lens of the
precautionary principle of international environmental law.
Body:
I. Introduction
Molecular
Nanotechnology-that technology related to the manipulation of individual molecules and atoms to build
complex structures with atomic
precision-promises to be the next technological revolution. Applied
to environmental problems, it could
lead to new solutions for sustainable
development and cleaning up the environment. Despite these benefits,
molecular nanotechnology also poses a
potential for global catastrophe rivaled only by nuclear warfare. If this rapidly advancing technology lives up to
its proponents' claims-and many
governments and multi-national corporations are investing millions of dollars on the belief that it will-nanotechnology
could be the next great green issue of
our time.1 Yet, both the environmental and legal communities have largely ignored it.
This paper seeks
to alert the environmental law community of the implications of molecular nanotechnology, especially its
potential for wreaking extreme harm on
the global environment, and to the precautionary measures proposed by the nanoscience community. Section II introduces
molecular nanotechnology. Section III
discusses the environmental implications of this new technology. Section
IV examines risk management measures
being discussed by the nanoscience community
and scrutinizes them under the lens of the precautionary principle
of international environmental law.
This paper concludes with a call for the
involvement of environmental lawyers in nanotechnology policy
discussions.
II. Molecular
Nanotechnology and Its Current State of Development
"Nanotechnology" and "nanoscience" refer to those
fields of science and technology
pertaining to nanometer scale.2 "Molecular nanotechnology"
("MNT") refers specifically
to those technologies related to the mechanical control over the arrangement of atoms.3 The goal of MNT
research is the "[t]horough, inexpensive control of the structure of
matter based on molecule-by-molecule
control of products and by-products."4 Nobel Laureate Richard
Feynman first suggested something akin
to MNT in a talk he presented in 1959, where he introduced the possibility of manipulating matter on an atomic
scale. Physicist K. Eric Drexler, who
theorized the possibility of creating "assemblers," molecular machines able to build other molecular
machines, initiated the first studies on
MNT in the 1970s.6 Furthermore, he envisioned replicators,
assembler-like devices that could
create exact copies of themselves.7 Drexler claimed that self-replicating nanosystems8 would enable
the inexpensive mass production of
whatever materials they are programmed to create.9
Although the
current state of nanotechnology is estimated to be at the level of development of computer and information
technology in the 1950s, a recent study
by the U.S. National Science and Technology Council reports "phenomenal levels" of research and development
activity in nanotechnology worldwide.10 Global competition to develop nanotechnology is building as
governments are beginning to realize
the economic and strategic potential of nanotechnology.11 The most significant nanotechnological
activity is taking place in the European
CommUnity,12 Japan,13 and the
United States. In its final year, the Clinton administration requested an 84% increase in nanotechnology
research and development. 14 President
Clinton argued that federal funding for nanotechnology is essential for America's scientific and economic
leadership, pointing out that Western
Europe outspent the United States in this area in 1997,15 calling
his administration's National
Nanotechnology Initiative a top Administration
priority. 16 The Bush administration has requested US$ 518.9 million
for nanotechnology research, a 23%
increase over fiscal year 2001.17 Other countries with known nanotechnology activity include: Australia,lg China,'9
India,20 Russia,21 South Korea,22 and
Taiwan.23
Multinational
corporations are also spending a significant amount on the research and development of nanotechnology.
At least twenty-four companies around
the world are working in this area.24 Some computer and electronics companies are spending up to half of their
long-term research resources on
nanotechnology.25 Corporate funding of nanotechnology in the United
States is comparable to the level of
U.S. Government funding,26 and has already led to commercially Viable products.27 With the increasing flow of funds
to nanotechnology research,
universities are establishing more courses and programs in nanotechnology.28
It is difficult to
determine from industry and government reports how much of current
nanotechnological research is directed specifically towards the development of
MNT. Most MNT research is currently theoretical. Some companies, such as
Zyvex,29 however, have implemented long term research projects aimed at developing MNT assembler systems.33 Zyvex
claims that although "the timeframe
for achieving MNT is extremely uncertain[,] it might start to be
practical as soon as ten years from
now, or by 2010."31
III.
Environmental Implications of Mnt
MNT research could
provide radical solutions to environmental problems. Enthusiasts claim that, because it would involve very little
waste or byproducts,32 MNT would
provide a sustainable basis for global wealth.33 As it would be far more efficient than the
macro-technologies of today, MNT promises
to drastically reduce resource consumption and chemical pollution.34 In
addition, through MNT, scientists may be able to inexpensively fabricate alternative manufacturing and building
materials, reducing the demand for
natural resources. 35 Drexler claims that MNT will allow the
construction of solar cells that would be
so efficient, cheap, and tough that they could be used to resurface roads and provide affordable
solar energy.36 Water could be
synthesized, purified, and recycled in household nanofactories,
providing clean, affordable water
without depleting natural aquifers.37 The broad ability to rearrange atoms would enable the recycling
of almost any material38 and make it
possible to cheaply clean the soil,39 water, and air of pollutants by
designing nanorobots that search out
toxic substances and break them down into harmless substances.41
These claims have
led some environmentalists to express optimism over the possible environmental benefits of MNT.
Mitch Friedman, founder of the Greater
Ecosystem Alliance, has said that MNT provides perhaps the most hopeful
scenario he has seen for the environment.42 Terrance McKenna, writing in
the Whole Earth Review, called
nanotechnology "the most radical of the green visions."43 Lester Milbrath"points out that because MNT
"emulates nature [it] could be
deployed much more harmoniously with it [than our modern bulk technologies]." Recently the U.S.
Environmental Protection Agency's National
Center for Environmental Research announced a grant for exploratory
research on the application of
nanoscale science, engineering, and technology to environmental problems.46 Noting that "[a]ny revolutionary
science and engineering approach to the
existing infrastructure of consumer goods,
manufacturing methods, and materials usage is sure to have major consequences
on the environment," and
recognizing the many potential positive environmental applications and greener technologies that nanoscience may help
develop, the announcement calls for
"interdisciplinary research on molecular and nanoscale processes that take place at one or more of
the interfaces within nanoscale
structures in natural systems" to anticipate the consequences of
nanotechnology on the environment.47
Many, however, are
skeptical of the optimism of those pushing for MNT development, comparing these
eco-utopian claims to the false promise of nuclear energy.48 Like nuclear power, MNT also raises the specter of
"extraordinary" accidents.49 A common MNT disaster scenario involves
runaway self-replicating nanomachines,
fueled by elements common in the natural environment, which convert biomass into replicas of themselves
("nanomass") on a global basis.50
This scenario, referred to as "global ecophagy,"5' could
destroy the biosphere as we know it.52
MNT researchers, however, claim that it is extremely unlikely that global ecophagy would happen by
accident.53 More likely, such biovorous
nanorobots would have to be malevolently created as military weapons or acts
of terrorism.54 Whether by accident or
by abuse, however, the result is equally
unpleasant. The incredible possibilities for both saving and destroying the environment has been referred to as the
"green double-edge of the MNT knife."55
In a provocative
article published in the April 2000 issue of Wired magazine, Sun Microsystems CEO, Bill Joy, called for
the relinquishment of MNT. He argued
that nanotechnology presents hazards so dangerous that the only safe
course of action for society to take is
to limit the pursuit of knowledge in this area.56 Joy points to biological weapons treaties as a precedent for the
relinquishment of MNT.5" He also
cites missed opportunities for banning the further development and
proliferation of nuclear weapons after World War I1.58 Joy warns that MNT is potentially much more
dangerous, and its potential for
disaster more likely, than the threat of nuclear accidents or war.
Unlike nuclear technology,
nanotechnology can be developed by small-scale activities, using common and inexpensive raw materials.
Nanotechnology, writes Joy, gives the
"ability to cause great damage ... to individuals and small groups in
ways never before possible."59
Some scientists
believe that the technology Joy fears is impossible, and that the dangers he warns of are nonexistent. They
dismiss the possibility of
nanoscientists ever building assemblers6o and belittle work related to
MNT, referring to it as the "silly
side of nanotechnology"61 and the "lunatic fringe,"62 and have criticized Joy's warnings as
"tantamount to quackery."63
Other scientists have responded to such dismissals with a vigorous
defense of the science behind MNT and
the possibility of self-replicating nanomachines.64 These latter scientists believe that the scenario Joy portrays is
possible, but that relinquishment is
unworkable and unethical. Their arguments are discussed in section IV.C.
Whether or not
self-replicating nanomachines are ever developed, nanotechnology still raises concerns over a host of
"ordinary" accidents and
abuse. Like drugs or macro-technologies, design flaws in products
developed through nanotechnology could
still lead to significant accidents.65 For example, some scientists predict that nanotechnology will advance to the
point where complex nanoproducts will
be developed that replace, repair, or incorporate themselves into cellular machinery. This technology, if
it is ever developed, could be used for
medical diagnostics, to deliver drugs and gene therapies to previously inaccessible sites in the body, to create more
durable rejection-resistant artificial
tissues and organs, and to develop new sensor systems that will aid in the early detection of emerging
disease.66 Yet, should these medical nanodevices fail or perform in ways
unexpected, the results could be deadly. For
example, if a self-replicating nanodevice implanted into a human body
were to be or become flawed, it could
create a cancer-like condition that destroys its human host.67 As nanotechnology begins to produce marketable
products, there will be a need to
develop legislation and regulatory mechanisms to protect the public from potential dangers that these new
products could present.68
Perhaps the
greatest short-term risks from nanotechnology could arise from the military
application of nanotechnology. While it is difficult to ascertain the current levels of military research
spending on nanotechnology in the United
States, as much of it is classified, the U.S. Department of Defense is a
major sponsor of nanotechnology
research.69 Nanotechnology could be used to perform similar military functions that biological, chemical, and
conventional weapons play today, yet
there are no treaties currently in force that would clearly regulate their use.70 The development of
nanotechnology for military purposes
also raises the specter of abuse by terrorists and rogue states.71
While the
implications of nanotechnology in general, and MNT specifically, cry out for
the development of new legal regimes to guide these technologies towards their most positive uses and away
from potentially harmful uses, there is
a conspicuous lack of involvement by lawyers and environmentalists in
these discussions."2 For the most
part, environmentalists seem to be unaware of
nanotechnology.73 Pat Roy Mooney, Executive Director of the Rural
Advancement Foundation International,
one of the few environmental organizations that has voiced concerns about nanotechnology, complains, "[I]t's
like talking about bio-technology in
the 70s-people ... say we're crazy."74 Nanoscientists, however, have been writing about the
potential dangers of MNT for nearly two
decades. Numerous scientists and some policy makers-but only a few lawyers
or environmentalists-have argued for
years that discussion of nanotechnology, with
global participation, needs to begin as soon as possible to avoid
potential hazards to world peace and
the environment.75
There is a need
for lawyers to engage in levelheaded analysis of the implications of nanotechnology on environmental law and to take
part in drafting constructive proposals for new or revised regulatory
mechanisms.76 Although researchers and
businesses developing new technologies may not welcome the involvement of environmentalists (much less
of environmental lawyers),77 early
involvement of the environmental community would be in the best interest
of those pushing nanotechnologies. The
current backlash against
biotechnological research is due, in part, to the lack of dialog
between environmentalists and scientists
when these technologies were first emerging.78
Parallels can be
drawn between a potential controversy over nanotechnology research and the controversy surrounding DNA
research, beginning with the 1975
Asilomar Conference. The purpose of the Asilomar Conference was to
evaluate the hazards of new recombinant
DNA techniques and to develop guidelines to control the risks of research involving these techniques.79 The conference
organizers' attempts to avoid public
"interference" unnecessarily polarized the controversy surrounding the emerging issue.80 They were,
as one observer put it, "dealing
with a public health issue and were simultaneously attempting to keep the
public out of it."8' Many in the
public reacted with mistrust, and occasionally in response to the media hype, with outrage. It is likely that
many environmentalists will react to
nanotechnology in a similar fashion, calling for bans on research and bringing lawsuits for injunctive relief. 82
Reactive legal
approaches, however, tend to lead to bad policy, leaving both the research and environmental communities
unsatisfied.83 Nanotechnology promises
to be far more revolutionary than biotechnology or computer technology.84 It
will require completely new forms of regulation 85 and could have a significant impact on national legal
systems as they adapt to the new
challenges this technology will create.86 The law often does not keep up
with fast-changing technologies. The
rapid development of nanotechnology and the
resulting legal lag-time create gaps where mismanagement of new
technologies can occur.87 For future
regulation to work, a proactive approach to changing the law needs to begin now.88
IV. Applying
Precautionary Principles to the Research and Development of Mnt
Most legal
discussions regarding nanotechnology have focused on what measures need to be set in place to allow for the
safe development of this new
technology. While many in the nanoscience community oppose any
regulation as an unnecessary impediment
to development and a threat to the economy, many recognize the need for
precautionary regulation. Furthermore, there is wide agreement among those who have written on the subject that MNT
would need to be regulated on an international
level as a MNT disaster could easily have a global impact.89 There has, however, been little discussion on the
application of the precautionary
principle of international environmental law to MNT. The precautionary principle is already being
applied internationally to a wide range
of activities that raise environmental concerns, including
biotechnology research and
development,90 the transportation of ultrahazardous waste,91 activities that accelerate climate change 92 and ozone
depletion.93 It is certain to play an
important role in the development of any international scheme regulating MNT.94 But how strictly it
should be applied, and what form it
would take in international legal instruments pertaining to MNT, are
questions that remain unexamined.
A. The Elements of
the Precautionary Principle
The
"precautionary principle" remains only vaguely defined in
international environmental law.95
Underlying the precautionary principle is the notion that "decision-making in the face of extreme
uncertainty and ignorance is a matter of
policy and political considerations."96 It arose out of the
understanding that scientific certainty
is often achieved too late for the development of effective legal policy responses to environmental
threats and that scientific uncertainty,
therefore, should not be used as a reason for delaying measures to
prevent environmental harm.97 The
international trend towards a preventative, rather than remedial approach" to environmental risk has grown so
strong that some argue it is now part
of customary international law.99 In laying out the elements of the precautionary principle, this paper
draws upon various international
instruments and formulations of the precautionary principle by
private organizations. l00
The various
formulations of the precautionary principle in international law generally include some or all of the
following components. First, the proponents
of a potentially hazardous activity have the burden of showing that
their activities will not harm human
health or degrade ecosystems.101 Second, an
evaluation of the possible effects and full range of alternatives to the
proposed action is required. 102 Some
formulations of the precautionary principle require serious consideration of taking no action at all as
an alternative.103 Third, it requires
taking anticipatory action to avoid potential threats.104 Finally, it requires that the decision-making process be
open to public scrutiny and
participation.105
As applied to
nanotechnology, these four elements can be restated as follows: (1) proponents
of nanotechnology bear the burden of proving its safety, rather than opponents
having to prove its harmfulness; (2) before nanotechnology is used, all alternatives must be examined,
including, perhaps, the alternative of
"no action" (i.e. relinquishment); (3) governments, businesses,
and individual researchers have a duty
to take anticipatory action to prevent harm
from nanotechnology; and (4) the process of applying the precautionary
principle must be "open, informed
and democratic,""6 and must include all parties that will be affected by nanotechnology. 107 This
provides a useful framework for
scrutinizing the safety measures and regulatory proposals that have been advanced for nanotechnology to see whether
they comport with the precautionary
principle of international environmental law.
B. Bearing the
Burden of Proof: Can Mnt Be Proven Safe?
The precautionary
principle places upon the proponents of MNT the burden of proving that their research activities and
the products they produce will not
cause undue harm to human health or the ecosystem."8 This also
entails holding those governments and
companies developing and applying MNT responsible for any harm they cause. This responsibility
includes financial responsibility in the
form of assurance bonds and tort liability, and a duty to
"routinely monitor their impacts,
inform the public and authorities when a potential impact is found, and [to] act upon that
knowledge."109
This is a burden
that will not be borne gladly. It is this shifting of the burden of proof that makes the precautionary
principle such a contentious issue,
often pitting developers of new technologies against environmentalists. Opponents of the
precautionary principle note that nothing
can be proven completely safe, and that a "guilty until proven
innocent" attitude will impose a
great barrier to progress."l10 Proponents of the precautionary principle argue that precaution need not lead to
categorical denials and bans, but that
it "does redefine development to not only include economic well-being but also ecological
well-being, freedom from disease and
other hazards."111 Furthermore, environmentalists believe that by
requiring those proposing potentially
harmful technologies or activities to demonstrate their safety up front, "there will be many incentives to
create new technologies that will make
it unnecessary to produce and use harmful substances and processes."112
The irony of
applying the precautionary principle to MNT is that of all new technologies, MNT holds the greatest promise
for not only eliminating the production
of harmful wastes and by-products, but also for fixing much of the damage already done to the environment. Not
allowing MNT research and development
to move forward may result in the continued pollution and unsustainable consumption of the earth's
natural resources.' 13 Yet, it will be
exceedingly difficult to prove that MNT research activity directed
towards the development of green
technologies could never be used in environmentally harmful ways.' 14 Application of the precautionary
principle's burden of proof to MNT is a
thorny issue, which is as likely to divide those within the environmental community, as it is to divide MNT
researchers and environmentalists. Questions
requiring much more discussion include: what levels of safety assurance will
be required, how possible is it to
separate "safe" MNT research from "hazardous" research, and is any level of risk
acceptable considering the potential ##threats?
C. Relinquishment:
The Alternative of Doing Nothing
"Relinquishment" of nanotechnology, as advocated by Bill Joy,
can be reframed as the strict
application of the precautionary principle. Relinquishment is included in some formulations of the
precautionary principle as an alternative
("no action") that must be considered before engaging in an
activity that raises the threat of harm
to the environment or human health. 115 International treaties containing the precautionary principle' 16 generally do
not explicitly require that
"taking no action" be considered before taking actions that may harm the environment.' 17 This requirement
is implied, however, as taking no
action may be the only reasonable precautionary measure available in
cases involving extreme hazards, where
no effective safeguards have been developed.
Because many in
the nanoscience community believe that there is a possibility that advances in nanoscience could lead, by
accident or by abuse, to a global
catastrophe rivaled only by full-out nuclear armageddon, application of the precautionary principle will likely lead to
increasingly shrill calls for banning
the development of certain nanotechnologies (e.g. self-replicating assemblers and certain military
applications), or even a broad ban on
nanotechnology altogether. The fact that scientists disagree on the
potential dangers of nanotechnology is
not relevant. Scientific uncertainty is precisely what the precautionary principle was designed to address. It
removes lack of scientific certainty as an excuse for not taking measures to protect the environment,118 especially
where the potential harm is
irreversible, which destruction of the biosphere most certainly would be.
Proposals to ban the development of
nanotechnology to avoid the potential of
extraordinary environmental harm, however, have been met with derision
by many in the nanoscience community,
some labeling such a strict application of the
precautionary principle as a form of "eco-fascism."119 Putting
such inflammatory rhetoric aside, most
proponents of nanotechnology argue that relinquishment is not possible and therefore is not really an
alternative, or that it is the worst
possible alternative. Even if MNT could lead to new weapons capable
of destroying the biosphere, they
argue, relinquishment would not only be a bad
idea, but would be impossible.12" Considering the possible economic
and strategic gains of nanotechnology, it is highly unlikely that all nations
would agree to a development ban. 121
The United States, for example, has shown little support for the inclusion of the precautionary principle in
international agreements and has
resisted binding targets and timetables for the reduction of greenhouse gasses.122 Also, as discussed
above, the United States has recognized
the importance of nanotechnology to its economic and military
competitiveness 123 and is no more
likely to support bans on nanotechnology development than it is to support reductions on its carbon
emissions.124
Even if it were
possible to establish such a ban by international treaties, they would be nearly impossible to enforce,
as illegal activity would be easy to
hide. 125 Bans on nanotechnology might only push the research
underground, giving rogue nations the
economic and military advantages it offers. 126 Attempting to stop nanotechnology, Drexler argues, means losing
control, and perhaps guaranteeing the
very disasters that the bans were created to prevent. 127 Glen Reynolds, a professor of law at the
University of Tennessee, points out
that no attempt to ban a weapon from existence has worked in the past,
and that those countries that have
implemented such bans have suffered at the hands of countries that didn't implement bans taking advantage of the
relinquishing countries'
vulnerabilities.128 Placing strict limits on the development of nanotechnology, Reynolds argues, would only
lengthen the window of a relinquishing
nation's vulnerability. 129 Rather than ban nanotechnology, proponents argue the imperative that open
societies accelerate the development of
advanced technologies in an environment of informed public discussion. 130 This best enables public policy to be guided
towards the safest course of action.
131
Not only is
relinquishment of nanotechnology seen as unworkable, many scientists see it as
unethical. Nanoscientists portray bans on nanotechnology as turning our backs on the poor and
suffering.132 New medical technologies that
could cure disease and increase the human lifespan would not be
developed.133 Neither would
technologies that improve the living standards of the world's poor.134 We would also relinquish opportunities
to reverse damage done to the
environment and to develop more sustainable technologies.135 In
addition, because nanotechnology is an
"enabling technology" that cuts across many scientific disciplines, a large fraction of current scientific
research would be effectively
banned.136 Other arguments for pushing advanced technologies, such as MNT, are that it is an historical
imperative to transcend existing human
limitations 137 and that the acquisition of knowledge is of utmost
importance.138
Because of the
economic and security issues discussed above, it is at best unlikely that any government will agree to
the strict application of the
precautionary principle to nanotechnology in the form of relinquishment.
The next section therefore focuses on
precautionary measures other than
relinquishment, as proposed by the nanotechnology research community,
with particular attention given to the
Foresight Guidelines on Molecular
Nanotechnology.
D. Anticipatory
Action: Preparing for the Challenges of Mnt
Most of those who
have addressed the need for precautionary measures in the development of MNT have been scientists.
Their focus has been on the need for
planning technical safeguards long before MNT becomes a serious threat
to human health or the environment.
Discussion regarding the regulation of MNT,
therefore, has for the most part focused on policies that would
facilitate the development of
safeguards, while holding the development of potentially destructive MNT applications
at bay until such safeguards are in place. Drexler, for example, has written that the chief purpose of regulating
nanotechnology is to "buy time for
peaceful development of ecosystem protectors and sophisticated immune machines for medicine."139 A
general characterization of most existing
proposals for MNT regulation might be: MNT safety devices and systems
will eventually be developed to negate
destructive MNT devices or systems, and until
that time, certain types of MNT research must be strictly regulated,
while other areas of MNT research
should be allowed to develop relatively unhindered.
This
characterization seems borne out by the Foresight Guidelines on Molecular Nanotechnology (Foresight
Guidelines), published by the Foresight
Institute, a nonprofit educational organization founded and chaired by
Drexler, "to help prepare society
for anticipated advanced technologies."'40 The guidelines are
"intended to provide a basis for responsible development of molecular nanotechnology."141
Interestingly, Bill Joy took part in the
development of the most recent version of the guidelines, 142 and some
of his suggestions were incorporated
into the document. 143
In its preamble,
the Foresight Guidelines recognize that "[t]he future capabilities of MNT ... raise an
unprecedented set of military, security and
environmental issues,"144 but states that "[e]xperimenters and
industry should have the maximum safe
opportunities to develop and commercialize the molecular manufacturing industry."145 In general,
the Foresight Guidelines favor a
regulatory approach that is "protective in development and liberal
in production."146 It also recognizes
the need to restrict the misuse of MNT "in the international arena," without endorsing "any
specific initiative to address MNT
safety and security concerns through treaty arrangements."147
Security threats posed by
selfreplicating nanomachines would warrant strict controls over the transfer of development capabilities.
Any international restrictions on MNT
products, however, should be limited to situations in which global
security is threatened. The Foresight
Guidelines otherwise espouse unrestricted access to MNT end products.144 Potential risks are to be managed with a
series of development principles and design guidelines. Unlike early protective
measures proposed by Drexler and
others, discussed below, the Foresight Guidelines contain no mention of developing defensive MNT systems. Instead,
the document emphasizes safety-design principles.
Although many of
the principles and guidelines contained in this document could be considered precautionary, the words
"precaution" or "caution" are not used. Rather, it refers to "risk management" as a basic
principle to be applied to the
development of MNT.149 This may indicate a preference for the process of "risk assessment," the favored
approach of most industry scientists and government agencies for making policy
decisions in the face of scientific
uncertainty.lso This interpretation seems likely when compared to other writings produced by the MNT community that are
critical of the precautionary principle.
Risk assessment
can be distinguished from the precautionary principle by the faith it places "in the ability of science
to model and predict harm in extremely complex ecological and human
systems."151 Proponents of risk assessment claim it to be the "sound science" approach to decision
making, based on what can be
quantified. 152 Environmentalists have challenged this claim, noting to its reliance on "policy and scientific
assumptions, which are frequently
unscientific or subjective."153 Among the specific criticisms of
the risk assessment approach to
policy-making include: its assumption of "assimilative capacity"; its susceptibility to model
uncertainty; its allowance of dangerous
activities to continue, based upon assumptions of acceptable risk; its undemocratic nature (it often precludes
participation of those most affected and
is easily manipulated for political purposes);154 and its use of
cost-benefit analysis, which creates a
"false dichotomy between economic development and environmental protection."155 Some
environmentalists see a place for risk
assessment within the precautionary principle, as one of many tools that
can be used for environmental
policymaking,156 but most feel strongly that, by itself, it is insufficient to adequately protect the
environment from risks posed by new
technologies. Differences in philosophy between environmentalists and
MNT researchers over risk have the
potential to be as divisive as similar debates
now raging over biotechnology.
The Foresight
Guidelines represent a nascent attempt at self-regulation by the MNT research community, initiated to
avoid potential government
overregulation in the future. For years the Foresight Institute has
facilitated discussion about how the
risks of nanotechnology can be effectively managed. Both preventative and remedial measures have been proposed.
Preventative measures focus on the safe
design of nanotechnologies, and remedial measures focus on how to respond to harmful nanodevices.
Several design
principles and guidelines are now generally agreed upon as essential to the safe development of MNT; most
of these are represented in the
Foresight Guidelines. Most regulatory proposals involve guidelines
for constraining autonomous
self-replication, evolutionary capabilities, and data corruption. Most researchers agree that artificial replicators
should be incapable of replicating in a
natural, uncontrolled environment.157 Robert Freitas, a research scientist with the Zyvex
Corporation, has called for an "immediate
international moratorium on all . autonomous foraging
replicators."158 Disallowing any
replication in natural environments, however, could prevent or seriously limit many useful applications of
MNT. One proposal for safe replication
is to design MNT devices that are dependent upon broadcast transmissions for replication. 159 Because
device "blueprints" would be in a
central computer and broadcast to the devices, simply stopping the
transmission would remove the devices'
ability to replicate. In addition, researchers agree that any nanodevice capable of replication should never be
designed to use an abundant natural
compound as fuel.160
Closely related to
controls on nanodevice replication is the principle that "[e]volution within the context of
self-replicating manufacturing system is
strongly discouraged."161 Designing sex into artificial
self-replicating systems would make
such systems unpredictable, and could lead to unforeseen accidents. Therefore, some scientists have proposed
that legislative constraints be put on
artificial evolution, including any kind of sexual inheritance
mechanisms, except for legitimate
research needs. Such research should be done under tight constraints and with a great deal of
caution. 162 Some scientists, however, are
worried that such tight restrictions will impede research on MNT replication.163
The Foresight
guidelines require that "[a]ny replicated information should be error free."'6 MNT researchers see
"zero emissions of polluting data" 165 as necessary to avoid accidents. Therefore, if a nanosystem fails,
it should fail completely. For example,
Ralph Merkle proposes that a nanosystem's instructions for building copies of itself should be
crashed if a single bit error occurs.
166 The foresight guidelines have adopted this as a design principle.167
Many scientists in
the field recommend a regulatory approach that categorizes MNT products by process-oriented or
functional categories.168 The most important
categorization would be those nanodevices capable of replication, and
those that are not. Self-replication
should only take place in a factory, not in a human body or the natural
environment. 169 Drexler has proposed the concept of sealed assembler laboratories, where MNT researchers could
research and develop new MNT devices.
Everything would take place in a completely concealed environment; only information would leave. Such labs should be
militarily secure from outside access
and internally secure so that only authorized products get out.170 Researchers would also be able to
engage in remote experimentation
through communication networks. 171 Other prevention-oriented proposals,
not specifically addressed by the
Foresight Guidelines, include enacting of national premanufacturing notice and product-approval requirements similar
to those used in the U.S. Toxic
Substances Control Act,172 and the establishment of international agencies to actively seek out those developing MNT
in secret 173 and restricting
scientists from doing research in countries without similar regulations.
Recognizing that
design guidelines are useless unless followed, MNT researchers have also proposed various remedial safeguards for
responding to malevolently designed
nanodevices. Generally, these take the form of nanodevices deployed to protect the environment or the human
body from other nanodevices. Because
malevolently-programmed, self-replicating nanorobots could cause an incredible amount of damage in a very short
time, these "ecosystem protectors"
and "immune devices" would need to be in place before an
accident or attack occurs. The corner
stone of such a MNT defense policy would be the creation of a MNT biosphere defense shield.174 First
proposed by Drexler,175 such a "shield" would be an automated defense system consisting of nanomachines
programmed to search out and destroy
dangerous replicators. Such ecosystem-protectors seem to conflict with the Foresight Guidelines
restricting a nanodevice's ability
operate autonomously in nature. 176 Bill Joy has criticized this
proposal, expressing concern over a
possible "auto-immunity problem."177 If the shield mistakenly attacks natural materials, or benign
synthetic materials, it may be worse
than what we are shielding against.
The Foresight
Guidelines have been criticized as being naive for depending too much on an honor system. 178
Environmentalists will most likely find that
the guidelines tip the balance in favor of unrestricted development.
The precautionary measures suggested in
the Foresight Guidelines may be sound, but
are given no teeth. They shy away from recommending any real
enforcement mechanism. Instead, the
guidelines raise the specter of rogue nations
endangering the national security of those countries that enact
overly restrictive regulation. Many
environmentalists will not be assured by the
Foresight Guidelines' emphasis on "risk management."
Experience has shown environmentalists
that risk assessment schemes, advocated by governments and corporations, often fail to prevent damage
to the environment and human health.
Under the lens of
the precautionary principle, the Foresight Guidelines contain great gaps and are unable to contain the risks that many
see on the MNT horizon. Remedial
proposals, which are not addressed in the Foresight Guidelines, need more discussion. Drexler's biosphere defense
shield proposal would require such an
advanced level of MNT that dangerous applications are likely to be created long before such a defense system could be
implemented, if it can be developed at
all. Even if it could be developed in time, such a complex system could malfunction and cause the very damage it was
created to prevent. While these
guidelines and proposals are necessary first steps towards ensuring the safe development of MNT, much
wider participation in these discussions is needed to tighten the proposed
guidelines and to address the necessary
regulatory mechanisms that will be required to implement them.
E. Public
Participation and the "Weapon of Openness"
One point upon
which both environmentalists and MNT researchers seem to agree is that nanotechnology needs to be developed
in the open and that a wide range of
interests should take part in discussions of policy choices related to its development and use. Arthur
Kantrowitz,"79 in a paper presented at the First Foresight Conference on Nanotechnology, argues that openness in
the form of public access to the
information needed for making public decisions180 is the best weapon of a democracy and that MNT and
other new technologies will require
even more openness. 181 He draws an analogy between Darwinian evolution and technological and social advancement. Just
as the process of trial and elimination
enhances the ability of a species to survive in nature, "[o]pen societies evolved as the fittest to survive
and to reproduce themselves in an international jungle.""82 The reason for this, Kantrowitz argues, is
that secrecy weakens theories and policies
by sheltering them from the challenge of competing views and technical criticism. Furthermore,
secrecy serves as an instrument of
corruption by making it easier for decisions to be based upon selfish
interests, rather than sound science or
the public interest.183 Both Kantrowitz and Drexler have advocated the establishment of "science courts,"
"fact forums," or some
similar "due process institution[] for airing technical
controversies." 184 Margaret Mead,
speaking in favor of such a new institution, criticized existing science policy-making as "totally
unsatisfactory," in many cases involving "a prostitution of science and a prostitution of the decision making
process."185
This should strike
a chord with environmentalists. The Rio Declaration calls for the discussion of environmental issues
to include the "participation of all
concerned citizens" and for states to "facilitate and
encourage public awareness and
participation by making information widely available."186 An agreement
on the necessity for open discussion
about MNT can be a foundation for building the
cooperation between environmentalists and MNT research scientists that
is necessary for the development of
sound MNT policy.
V. Conclusion
Nanotechnology is
developing rapidly, with hundreds of millions of dollars being spent by governments and
multi-national corporations in a new
technological race. Yet, it is a race towards an uncertain destination
and it is being run under rules
designed for another course. While there is disagreement over what the limits of this new technology
are, many in the field warn of the
potential for unparalleled natural disaster. The environmental and
legal communities, however, are for the
most part oblivious to the implications of
nanotechnology.
Why should busy
environmental lawyers devote time to this issue given all the other fires they have to put out? Because of
the extraordinary nature of this new
technology, it has the potential to affect, for good or for evil, every arena of environmental concern. Like
advances in nuclear science, biotechnology, and computer/information
technology, nanotechnology promises to have a
revolutionary impact on society. It will eventually invade every aspect
of our lives. Moreover, nanotechnology
will allow us to manipulate the natural world in ways never before possible. Whether we use this new-found power
over the environment to heal the damage
we have already caused, and to lessen future
negative human impacts on, the natural world, or misuse this power to
cause great harm, depends in large part
on the foresight we bring to bear on the potential risks today. The environmental community woke up to biotechnology
too late and could only react to the
potential dangers they saw; there was little time for reflection. With nanotechnology, however, there is still time
for environmentalists and researchers
to engage in dialog regarding the implications
of this rapidly developing technology.
The nanoscience community should welcome
early public involvement. Unless the
scientific community engages the public openly, the public response is
more likely to be overly reactive-as
the biotechnology industry learned in the 1970s. Fortunately, the nanoscience community has shown a willingness to
engage in-has sought out
even-interdisciplinary dialog. The current Foresight Guidelines are a step in the right direction. The development
of these guidelines is open to public
scrutiny and public input is encouraged. One question on which more input is needed is what role the precautionary
principle should play in future
guidelines and regulations governing nanotechnology research and
development. The current guidelines
will likely be unacceptable to environmentalists who feel that they place too much trust in the
discretion and good faith of government and industry researchers. It is certain that there will be calls
for stricter precautionary measures to
be applied to nanotechnology. It is equally certain that the nanoscience research community will resist these calls.
The resulting debate is likely to be
contentious, but dialog needs to start now, so that proactive precautionary social and legal controls can be
developed while this new technology is
still in its early development, rather than rushing to rash reactive policies in response to a rude
awakening thirty to fifty years from
now, if not sooner.
Paul C. Lin-Easton: Class of 2001, University of Hawaii, William S.
Richardson School of Law. The author
will be working at the Law Offices of Richard Turbin, starting this fall. The author thanks Douglas A. Codiga
(Adjunct Professor, William S. Richardson School of Law) for his comments on
the first draft of this article. The
author also wishes to thank M. Casey Jarman (Professor, William S. Richardson School of Law) and Denise E.
Antolini (Assistant Professor, William S. Richardson School of Law) and Jon M.
Van Dyke (Professor, William S. Richardson School of Law) for making my studies
of environmental and international law
so rewarding,
GRAPHIC: IMAGE TABLE, CONTENTS; IMAGE FORMULA; IMAGE
FORMULA; IMAGE FORMULA; IMAGE FORMULA;
IMAGE FORMULA; IMAGE FORMULA; IMAGE FORMULA; IMAGE FORMULA; IMAGE FORMULA; IMAGE FORMULA; IMAGE FORMULA; IMAGE
FORMULA; IMAGE FORMULA; IMAGE FORMULA;
IMAGE FORMULA; IMAGE FORMULA; IMAGE FORMULA; IMAGE FORMULA; IMAGE FORMULA; IMAGE FORMULA; IMAGE FORMULA; IMAGE
FORMULA; IMAGE FORMULA; IMAGE FORMULA;
IMAGE FORMULA; IMAGE FORMULA