State involvement is key to emerging tech development

However, other assessments of these existing schemes have concluded that existing federal regulatory schemes are inadequate to assess and respond to the prospective risks posed by nanotechnology.278 Significant regulatory coverage gaps (and in some cases, gulfs) would manifest upon any effort to use existing federal regulatory authority, and only that authority, to regulate nanotechnology.279 These gaps can take multiple forms. For example, some existing environmental statutes (such as the Toxic Substances Control Act (TSCA) and the Resource Conservation and Recovery Act (RCRA)) are triggered based on volume or mass.280 Such measures are inappropriate for nanotechnology regulation.281 Alternatively, the fundamental incapacity to detect and measure nanoscale quantities will make regulation difficult.282 In practice, the experience of state and local regulators can ultimately help the EPA decide which regulatory authority works best.

The discussion of potentially applicable federal statutes should make clear that even if nanotechnology is regulated at a centralized level, coordination difficulties will likely arise because nanotechnology arguably falls within the purview of a variety of different statutes and different agencies.283 Therefore, centralized regulation cannot be justified on the basis of improved coordination.

Similarly, numerous emerging technology scholars have stressed the need for an adaptable scheme that can identify and fill regulatory gaps as time passes and new discoveries and applications for the technology arise.284 A unitary scheme across all jurisdictions would likely come with decreased flexibility, and some have argued that such an outcome is preferable because flexible regulation leads to power imbalances between concentrated corporate interests and diffuse public interests.285 On the other hand, use of the states as ―laboratories‖ would allow increased experimentation and, perhaps, increased responsiveness to developments in the technology.

As noted above, the scientific and technical knowledge gaps will make it difficult to utilize solely centralized federal regulation to govern emerging technologies.286 This is especially true as to the lack of capacity to monitor and control emissions, traditionally a state function.287 On the other hand, widespread involvement of states and local governments could generate significant amounts of data and help to fill these knowledge gaps.