The Genie is Out of the De-Extinction Bottle: A Problem in Risk Regulation and Regulatory Gaps

Once the province of horror films and fantasy, the idea of recreating extinct life forms is poised to move from science fiction to laboratories and from there to the world at large. While “de-extinction is not something that will take place tomorrow . . . scientists are making major advancements, and eventual success appears inevitable.” Spurred on by the burgeoning field of genetic engineering, it was only a matter of time before scientists turned their attention to recreating extinct life forms, either for the thrill of it or in atonement for the human role in the extinction process. But science appears to be outpacing the ability of government agencies to respond to the legal, moral, and practical questions that these endeavors raise. Existing laws, like the Endangered Species Act (“ESA”), are inadequate to respond to the environmental and public welfare risks these ventures pose. At the same time, the overlapping and conflicting policies governing genetic engineering, upon which de-extinction depends, have created a dysfunctional regulatory commons in which no single agency is responsible for creating, implementing, and enforcing applicable rules. Changes to this situation, even if politically possible, will be too slow to respond to the intentional or unintentional release of resurrected species into the environment. Thus, the existing regulatory gap will enable de-extinction activities to continue unrestrained, and there is little hope of government action closing this gap any time soon. This article proposes that participants in the field of de-extinction undertake traditional governmental functions, including setting, implementing, and enforcing performance standards, until external regulations are developed. However, self-regulation or private governance may not arise on its own. Therefore, this article suggests that pressure from the application of social norms, like those pertaining to the environment and human health, and a motivated, educated public might encourage participants in the field of de-extinction to self-regulate. While using social norms to encourage behavioral change is not new, the linkage between norms and private governance to fill a regulatory gap that encompasses an entire field—de-extinction—is novel