November 08, 2012

Nanotechnology Project

The Section of Environment, Energy, and Resources (SEER) has been at the forefront of nanotechnology law and policy. In 2006, it began its Nanotechnology Project, which consists of two phases. Each is described below.

Phase I

In early 2007, the Section offered to brief representatives of the U.S. Environmental Protection Agency (EPA) Office of General Counsel (OGC) and pertinent other EPA representatives in EPA program offices on legal and regulatory issues arising in connection with the application of existing statutory and regulatory authorities available to EPA to engineered nanoscale materials. Specifically, the Section formed teams which prepared detailed briefing documents on each of the six core environmental statutes (CAA, CERCLA, CWA, FIFRA, RCRA, and TSCA), and a briefing document on innovative governance mechanisms, that identify key legal and regulatory issues EPA can be expected to encounter as it considers how best to address issues likely to arise in connection with nanotechnology.

Representatives from each of the seven teams presented their findings to then EPA General Counsel Ann Klee and other EPA representatives in seven separate 90-minute meetings. These papers collectively provided the first comprehensive, scholarly review of the core federal environmental statutes with a view toward assessing the utility of each in addressing the legal and regulatory issues pertinent to EPA’s jurisdiction presented by nanotechnology. In general, the papers concluded that the core environmental statutes were found to provide EPA with sufficient legal authority to address adequately the challenges EPA is expected to encounter as it assesses the enormous benefits of and potential risks associated with nanotechnology. Please note these papers were solely the product of the ABA SEER, and did not purport to represent the opinions of EPA.

These briefing papers formed the basis of Nanotechnology: Environmental Law, Policy, and Business Considerations. Contributors to this volume have sought to identify regulatory, governance, and business issues of ongoing - and evolving - importance in this challenging arena. The book discusses nanotechnology in relation to the country's key environmental statutes: TSCA, FIFRA/FQPA, CAA, ESA, RCRA, CERCLA, CWA, and NEPA. It also considers the need for a systematic and multifaceted approach to governance that includes performance and product standards, economic instruments, public dialogue, information collection and reporting, a proactive approach to liability, and corporate self-regulation; initiatives in developing nanotechnology standards and consensus led by industry standard-setting organizations, government agencies, and the public sector; and the types of risks and potential liabilities facing companies in the business of nanotechnology, as well as the need for those organizations to be aware of and in compliance with securities law reporting issues, Generally Accepted Accounting Principles, and a high degree of due diligence.

Phase II

Phase II of this project addressed important legal topics not covered in the original seven briefing papers of Phase I. They include:

  • The Food Quality Protection Act (FQPA)
  • The National Environmental Policy Act (NEPA)
  • The Endangered Species Act (ESA)

Phase II analyzed these statutes for three reasons. First, lawyers within EPA and others have inquired about whether SEER intends to prepare briefing documents on these laws and have noted a need for them. Second, SEER believes that briefing documents on these statutes are particularly important given the direction the legal debate has taken over the past several years. Third, we expect Congressional interest in several areas, including ESA reauthorization (in addition to TSCA reauthorization, addressed under Phase I) and believe the Section, through its Congressional Relations Task Force, could play an important role in identifying legal, regulatory, and policy issues, contributing to the body of law in these areas.

Next Steps
Lynn Bergeson and Mark Duvall serve as co-chairs of this project.

Nanotechnology is a core issue the Committee on Chemical Regulation, Pesticides and Right-to-Know tracks. If you are interested in nanotechnology and other aspects of chemical regulation, we would be pleased to discuss this with you further. Please contact Lynn Bergeson or Mark Duvall to learn more about how you can become more involved with the Committee.

Lynn L. Bergeson
Bergeson & Campbell, P.C.


Mark N. Duvall
Beveridge & Diamond, P.C.