The Triumph of Technology-Based Standards
Wendy E. Wagner | 2000 U. Ill. L. Rev.
In the following article, Professor Wagner chooses a heretofore unpopular approach to pollution control, technology-based stan-dards, as her favorite innovation in environmental law. In selecting technology-based standards, Professor Wagner has chosen to focus on the fundamental or base innovations at the core of environmental programs rather than secondary or tertiary approaches that merely fine-tune existing regulatory controls.
The Environmental Protection Agency creates technology-based standards to control air, water, and land pollution. Only after deter-mining the capability of currently available technologies to meet con-gressional goals with regard to an industry will the Agency set its standards for that industry. Professor Wagner argues that this proce-dure provides a moral imperative for regulated entities to do their best when public health and the environment are at stake. She also con-tends that the ease of promulgation, superior enforceability, even-handedness in application, and eminent adaptability of technology-based standards all serve to enhance their desirability as a founda-tional regulatory program.
Professor Wagner responds to the critics of technology-based standards by showing that these standards are generally more efficient as base innovations than alternative approaches, such as cost/benefit- or market-based controls. In addition, she argues that, rather than freezing technology, the standards can create incentives to pioneer the development of new technologies. Finally, Professor Wagner points to the untapped capabilities and potential breadth of the future appli-cations of technology-based standards as reasons to embrace these standards as a trustworthy approach to environmental protection.
* Professor, Case Western Reserve University School of Law and Weatherhead School of Management.