Technology Assessment: An Idea Whose Time Has Come

Timothy B. Atkeson, General Counsel, Office of Technology Assessment

This year a new entry will appear in the legislative branch section of the U.S. Government Organization Manual; the long awaited Congressional Office of Technology Assessment (OTA) is now in business. Like the Library of Congress' Congressional Research Service or the General Accounting Office, OTA is an arm of the legislative branch. Its assignment is to help congressional committees better assess the impacts of new technologies which Congress is called upon the regulate or finance. The Office is headed by former Congressman "Mim" Daddario, who pioneered what is now the legislation establishing OTA (the Technology Assessment Act of 1972, P.L. 92-484). Twelve Senators and Congressmen serve as OTA's Board of Directors, under the bipartisan leadership of Chairman Senator Edward Kennedy and Vice Chairman Congressman Charles Mosher.

The Office of Technology Assessment is expected to build a staff including a core staff in which I serve as General Counsel and project teams whose expertise is related to the areas of the technology assessments to be performed by the office. In the current fiscal year, six or seven assessments in the areas of health, energy, food, materials, transportation and marine affairs are likely to get underway. These pending studies involve:

a review of the grounds for finding bioequivalence of drugs for purposes of the proposed Medicare policy to finance the cheapest generic medicines - for which the study panel is already at work;

an assessment of developing systems for solar generation of electricity;

a continuing examination of relative priorities in energy research and development;

an assessment of the adequacy of the information system supporting our decisions on agricultural policy;

studies of the requirements for greater energy conservation in the processing of materials;

an assessment of automatic train control systems in urban mass transportation; and

assessments of aspects of the proposal to expand outer continental shelf oil and gas production and of the impacts of such activity in the coastal zone.

To help the staff perform these assessments, the office will have funds for contract studies. Two million dollars have been appropriated. Five million dollars have been requested for next year.

Technology assessment has been defined as "the systematic study of the effects on society that may occur when a technology is introduced, extended, or modified with special emphasis on the impacts that are unintended, indirect and delayed." For the purposes of the Technology Assessment Act "technology" was broadly conceived in the legislative history. The Senate report included a wide variety, including the SST, the Northeast Transportation Corridor experiment, weather modification, desalinization of seawater, nuclear power development, the Alaskan pipeline, trace-metal poisons, food supplies, pesticides, antibiotic stock feed, development of an electric auto engine, strip mining techniques, sea-bed mineral resources development, medicare, computerized information and education, genetic control and biomedical engineering. The Appendix to the Senate Report further suggested that "technology" may communicate too limited a notion of what is included in technology assessment. "… 'Technology' includes the so-called 'soft' or social inventions along with the more commonly thought of physical objects and materials."

To give a concrete illustration of how technology assessment for the Congress may work, let us consider the case of the President's proposal to accelerate leasing of oil and gas on the outer continental shelf ten fold. Both the House Judiciary Committee and the Senate Interior Committee which authorized the Outer Continental Shelf [4 ELR 50141] Lands Act twenty years ago are holding hearings to consider whether further legislation is needed. OTA has been asked to help make sure that Congress has before it the essentials of a technology assessment of the proposed OCS accelerated development. This would include:

an identification of the primary (e.g., oil spills) and secondary (e.g., build up of related industries along the coast) impacts of this technology and its supporting systems;

an identification of alternatives both in the form of alternative techniques to develop the Outer Continental Shelf and in alternative sources of energy supply or conservation;

a comparison of the impacts likely to follow from the Executive Branch proposed OCS program compared with alternatives that should be considered;

an identification of problem areas needing further research; and

a presentation of the completed analysis.

Fortunately for the public interest, Congress and OTA, technology assessment is a concept that has been maturing for some years and many of the ingredients of a full technology assessment on OCS development are available. There are already very significant forces working toward a technology assessment type analysis in the Executive Branch and existing law. As a result, all three branches of government can be seen to be evolving toward requiring a decision-making process for both government and the private sector by which the impacts of, and alternatives to major technoogical development are much more carefully, and explicitly assessed. Let me illustrate what some of these forces are by reference to the OCS development proposals Congress will be considering.

First, I would cite the Executive Branch's own recognition that a careful technology assessment is going to be necessary to win acceptance of major decisions such as that to expand OCS operations. In part the Executive Branch has been brought to this state of enlightenment by other forces — including bad memories of the Santa Barbara blowout, successful citizen environmental litigation holding up oil and gas leasing in the Gulf of Mexico until an adequate NEPA environmental impact statement was filed (NRDC v. Morton)¹ and the serious concern expressed by Members of Congress and Governors about extending the area of OCS operations until the impacts of this action were thoroughly assessed. The result is that the Executive Branch has done a great deal of homework on OCS technology and operations since 1971. The National Science Foundation has actually financed a technology assessment of OCS operations (by a group at Oklahoma University whose report is entitled Energy Under the Oceans), the Interior Department has obtained studies from NASA and others, and the Council on Environmental Quality has just finished a very useful, year-long, $1 million study of the environmental, economic and other impacts of extending OCS operations to the Atlantic Coast and the Gulf of Alaska. This is, in fact, an unusual amount of looking before leaping for the Executive Branch, but it illustrates a growing trend. The National Science Foundation Research Applied to National Needs (RANN) program is already financing more technology assessments than OTA itself can consider for some time to come. The CEQ study is perhaps unusual in the size of its funding and scope, but it indicates a capacity in the Executive Branch to do excellent technology assessment studies where the will to do so is present.

To a considerable extent, the National Environmental Policy Act is helping to reinforce this will. A NEPA environmental impact statement and a technology assessment are not the same thing, — the technology assessment is more likely to look at a broader range of economic and social impacts and environmental impact statement is triggered by a much wider range of governmental actions than those calling for a technology assessment, but, for a crucial range of up coming government decisions about our future energy supply, our handling of our national forests and agricultural policy and our transportation system, environmental impact statements and technology assessments will be very close in substance and purpose.

The fact that the D.C. Circuit has now held as a matter of law that NEPA requires a broad impact statement from the lead federal agency involved, on the projected consequences of implementing major new technologies likely to affect the environment, while still at the research and development stage is the second of the background factors promoting technology assessment. The decision in Scientists Institute for Public Information (SIPI) v. AEC,² arose in the context of AEC's long term program to bring the Liquid Metal Fast Breeder Reactor research and development to a demonstration of commercial feasibility by 1980. AEC contended that individual impact statements on its two pilot plants should suffice. Plaintiffs sought a programmatic impact statement now on the cumulative impacts of commercial deployment of the breeder reactor before the investment in developments of this new technology, already at over $100 million a year, foreclosed other alternatives. Judge Skelly Wright, in an opinion having applicability to all major federal research and development programs, held that

"NEPA requires impact statements for major federal research programs, such as the Commission's LMFBR program, aimed at development of new technologies which, when applied, will significantly affect the quality of the human environment."

In response to AEC's recitation of the difficulties of projecting impacts ahead the Court set a "rule of reason."

"Statements must be written late enough in the development process to contain meaningful information, [4 ELR 50142] but they must be written early enough so that whatever information is contained can practically serve as an input into the decision making process."

The Court went on to suggest:

"The first function of judicial review in this area should be to require the agency to provide a framework for principled decision making. Agencies engaging in long-term technology research and development programs should develop either formal or informal procedures for regular, perhaps annual, evaluation of whether the time for drafting a NEPA statement has arrived."

CEQ, in its revised NEPA Guidelines issued last August, has gone a considerable distance toward incorporating technology assessment concepts into the impact statement requirement:

the SIPI v. AEC ruling has been generalized for all agencies (Guideline § 1500.7(d)(2));

there is greater encouragement for "program" statements, examining impacts common to a series of agency actions such as Interior's 5-year advance schedule for OCS leasing (Guideline § 1500.7(d)(1)); and

there is an explicit requirement that secondary or indirect consequences be addressed, including population and economic growth impacts (Guideline § 1500.8(a)(3)(ii)).

While mentioning the contribution of the impact statement requirement and the NEPA guidelines to technology assessment, I should also mention two other sections of NEPA likely to figure in any future litigation about federal development, financing or regulation of new technology.

Section 102(2)(A) of NEPA requires that federal agencies "utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision-making which may have an impact on man's environment," and

Section 102(2)(B) calls upon federal agencies to develop "methods and procedures which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decision making along with economic and technical considerations."

These sections have a strong potential for requiring something very close to technology assessment. The first section has already been held to make "the completion of an adequate research program a prerequisite to agency actions." Environmental Defense Fund v. Hardin.³ Coupled with the SIPI opinion and the requirement that an impact statement deal with responsible opposing scientific views (Committee for Nuclear Responsibility v. Seaborg),⁴ these NEPA provisions point to a much more extensive treatment in future cases of a requirement for technology assessments by federal agencies as a matter of law.

It is significant that many of the studies and proposals concerning expanded OCS development rely on programmatic impact statements on long-term schedules for OCS leasing as a tool for continuing technology assessment. The NSF financed study by Oklahoma University, Energy under the Oceans, the CEQ report on Atlantic and Alaska Gulf OCS prospects, and the Jackson-Metcalf bill (S. 3221) all utilize this mechanism. Program impact statements are seen as a method to involve all the federal agencies and the different levels of federal, state and local government in the planning for OCS decision, as a means to invite public participation in a more focussed process, and as a means for periodic re-examination of the environmental impacts and technological alternatives available.

One of the devices available to assist the Congress as it addresses the question of relative priorities in energy research and development should be the increasingly sophisticated NEPA impact statements that will be required in this area. AEC has now done a program statement on the Breeder Reactor Program, Interior has done extensive statements on oil shale and geothermal development, and important analyses of coal gasification, use of solar energy for heating and cooling, offshore power plants, and liquified natural gas transportation are in the works. In addition to the services of OTA, Congress can give force to the NEPA requirement that legislative proposals, in this case the very substantial appropriations requested for these new energy technologies, be accompanied by impact statements.

One of OTA's contributions can be to given Congress a critical analysis of these forthcoming impact statements; where technology assessment is involved and perhaps to furnish some guidance on what impact statements prepared for the Congress should contain. Our aim must be to make maximum use of assessment requirements and capacities already in being, with the possible bonus that the billions now spent by the Executive Branch on research and development can be made more useful and intelligible to Congress and to the public.

In addition to the current policies of Congress and the Executive Branch and the requirements of NEPA, a third force at work promoting the trend toward technology assessment is a general trend in other federal legislation and in the common law of torts. Two recent examples of such federal legislation are the provisions in the 1972 Federal Water Pollution Control Act Amendments (§ 311) providing for strict liability for oil and hazardous material spills and in the Alaska Pipeline legislation (Trans Alaska Pipeline Authorization Act, P.L. 93-153, § 204) providing for strict liability for damages arising from operations of the pipeline system (including its Alaska to West Coast marine transportation link). I submit that rules of strict liability for installation of a new technology lead to more careful examination of its likely impacts and a much more extensive exploration of techniques [4 ELR 50143] and alternatives for design to mitigate these impacts. By the force of a rule that the new technology must in all cases internalize costs of damage, law sets in motion pressures from the insurance industry, suppliers and competitors to develop fail safe technology. Private sector decisions about the design and operations of tankers to be used in the Alaskan oil trade, the design of vessels carrying liquified facilities should all feel the influence of these provisions. Another pending piece of federal legislation, the Toxic Substances Control Act now in conference, approaches the need for technology assessment from a different perspective. It would cause EPA to issue protocols for testing of the environmental effects of new chemicals before they could be marketed, supplementing the requirements of our Food and Drug legislation, with respect to the safety and efficiency of items directly consumed.

I have mentioned that a provision in legislation for rules of strict liability for a new technology works to the same end as technology assessment. The same process is at work in the common law. It is interesting to note that, quite apart from the new federal statutory rule of strict liability for oil spill cleanup costs first adopted in 1970, the California courts have been developing a similar rule as part of the development of their common law (Green v. General Petroleum Corp.),⁵ which has been invoked in litigation arising out of the Santa Barbara spill.

An examination of the trend of decisions on the common law involving nuisance, strict products liability and liability for harm from abnormally dangerous ativities shows a tendency to internalize social costs into the industries involved and a spur to management to follow the elements of technology assessment to reduce these costs. (For an excellent treatment of these cases, see Milton Katz, "The Function of Tort Liability in Technology Assessment.")⁶

I have labeled these remarks "Technology Assessment: An Idea Whose Time Has Come." I believe it is hopeful and important that we can begin to claim for technology assessment the power of an idea whose time has come, but I am as aware as you are that there is nothing inevitable about progress in this direction and that we have much to learn about how to do technology assessments. Accepting these limitations, as a lawyer, I take special interest in a process to which the law has made such an extensive and, on the whole, useful contribution. There is just over a century between the decision of the House of Lords in Rylands v. Fletcher,⁷ developing a rule of strict liability for the property owner whose dam break injured his neighbor, and thereby a crude incentive to technology assessment, and the Santa Barbara oil spill, NEPA, and the Technology Assessment Act. In this hundred years we have seen an incredible acceleration in the pace of technological innovation and more recently, in the explicit recognition of the need for technology assessment, the beginning of a more adequate response from our institutions. I believe the field will merit increased attention by lawyers and that it is but another illustration of the prolific and seminal type of legal development we have come to expect under the heading "Environmental Law."

1. 2 ELR 20029 (D.C. Cir. 1972).

2. 3 ELR 20525 (D.C. Cir. 1973).

3. 1 ELR 20207 (D.D.C. 1971).

4. 1 ELR 20469 (D.C. Cir. 1971)

5. 205 Cal. 328, 270 P. 952 (Sup. Ct. Cal. 1928).

6. 38 U. Cinn. L. Rev. 262 (1969).

7. 3 H.L. 330 (1868).