The Environmental Law Institute, The George Washington Journal of Energy and Environmental Law, and The George Washington Environmental Law Association co-sponsored the J.B. and Maurice C. Shapiro Environmental Law Conference on Environmental Governance at the Leading Edge of Technology on March 23-24, 2011. On the second day of the conference was a Round Table discussion on New Approaches to Government Oversight. LeRoy C. Paddock, Associate Dean for Environmental Law Studies and Professor of Law, The George Washington University Law School, moderated the event. Panelists included the following:

• Gary Marchant, Lincoln Professor of Emerging Technologies, Law, and Ethics, Sandra Day O’Connor College of Law

• David Rejeski, Director, Science and Technology Innovation Program, and Director, Project on Emerging Nanotechnologies, Woodrow Wilson International Institute for Scholars

• Michele Garfinkel, Policy Analyst and Associate Professor, J. Craig Venter Institute

• Dan Fiorino, Director, Center for Environmental Policy, Department of Public Administration, American University

• Tracy Hester, Assistant Professor of Law and Director of the Environment, Energy, and Resource Center, University of Houston Law Center

• Annie Petsonk, International Counsel, Climate and Air, Environmental Defense Fund.

The panelists discussed a variety of topics government regulation in the area of emerging technologies; I highlight a few of these below. Please note, the contents of this summary are based on the author’s notes from the panel discussion.  As such, certain statements made in this summary may contain inaccuracies, and should not be understood as representing the precise statements or views of the panelists.

In his opening remarks, Mr. Rejeski noted that bureaucracies by nature often have limited peripheral vision; they have difficulty thinking contextually and seeing advanced warnings.  In order for bureaucracies to govern at the leading edge of technology, one challenge will be for them to develop better peripheral vision.  Mr. Marchant discussed some interesting work that governments and corporations are doing on “horizon-scanning,” i.e. deliberate efforts to define the unexpected.  Some major corporations such as Shell have frameworks in place to “horizon-scan” and develop a vision for the direction in which new technologies may head, but government agencies have to date been limited in their capacity to create this kind of vision.

Ms. Petsonk pointed out that, even when corporations or nongovernmental organizations develop a larger peripheral vision, it is frequently difficult to communicate this vision in a way that is relevant to policymakers.  It is therefore important to frame issues and data in terms of the risks and time horizons that are important for policymakers.

The discussion then turned to how governments should make hard choices regarding emerging technologies.  For example, should government regulators purposefully allow technologies to develop un-regulated and thereby risk a multiplicity of technologies that are difficult to integrate?  Or, should governments attempt to provide direction and support for certain technologies in order to encourage consistencies within the market?  Mr. Marchant noted the difficulty that governments have in picking the “correct” technologies for the future.  For example, California in the early 1990s decided to mandate electric vehicles rather than hybrid vehicles.  As a result, American companies scaled back their hybrid vehicle development programs, and in the meantime Japanese vehicle makers were able to take the lead on hybrid vehicle development, which has resulted in significant profits for these Japanese companies relative to American companies.

Several panelists noted that the U.S. Environmental Protection Agency has recently relied more on regulation than on voluntary programs, in part because of staffing shortages and a lack of expert understanding of how industry makes decisions.  The panelists noted the importance of developing programs to work with industry to share information and develop a framework that will protect health and the environment while simultaneously encouraging growth.  Some private-sector partnering has developed as between Dupont and the Environmental Defense Fund on the issue of risk management in nanoscale materials, but government regulating agencies have to date shown little flexibility in encouraging and participating in such partnerships.

The panelists also noted some optimism that U.S. government agencies will begin to think more broadly about emerging technologies and to regulate in smarter ways.  They mentioned the March 11, 2011 memorandum issued jointly by John P. Holdren, Assistant to the President for Science and Technology, Cass R. Sunstein, Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget, and Islam A. Siddiqui, Chief Agricultural Negotiator, U.S. Trade Representative.  The memo sets forth various principles to guide federal agencies in developing regulation and oversight that protects safety, health, and the environment without “unjustifiably inhibiting innovation, stigmatizing new technologies, or creating trade barriers.”  This memorandum demonstrates the importance of the area of emerging technologies to the Obama Administration, and Administration is well-advised to consider the valuable insights that the panelists in this discussion provided when shaping the future of federal regulation in the area of emerging technologies.

-Sarah McKim, Senior Articles Editor