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Abstract:
This paper is the second half of a two-part article on negotiated land use regulation. Following up on the first installment's detailed critique of the shortcomings that pervade the traditional command-and-control and prevailing bilateral negotiation models of land use regulation, this second installment advances a collaborative model of agreement-based land use regulation that proposes reshaping modern land use and development to address the theoretical and practical failures of existing approaches.

The proposed model seeks to cultivate improved land use regulatory processes and local democratic institutions through: nurturing agreement processes that are open, promote participation and oriented toward problem-solving; fostering agreements that allow for adaptability and aggregate accountability by providing for shared community implementation or monitoring of agreements; and positioning the land use planning professional as a community organizer, information gatherer and distributor, and facilitator of effective comprehensive planning, rather than the heretofore common but inappropriate roles of diviner of the public interest or agreement negotiator. The model ultimately seeks to foster local experimentation with various modes and amounts of public participation in order to nurture the active, sustained involvement on which the legitimacy of local land use regulation fundamentally relies.

The paper also discusses a number of potential challenges to the development of collaborative land use decision-making processes, arguing that despite these concerns, the proposed collaborative model has considerable promise in the local land use domain. In particular, the paper contends that some of the principal criticisms of collaborative processes initiated in the administrative law realm - including the practicability of multilateral dispute resolution and the diminished reliance on governmental expertise - may actually be strengths in local land use regulation. The paper thus calls for the incorporation of additional collaborative characteristics into local land use processes, both as a necessary response to existing, biased regulatory approaches and as a welcome return to fostering community participation as an essential source of legitimacy for local government decision-making.

Land Use Regulation, Property, Zoning, Collaborative Governance, Collaborative Planning, Alternative Dispute Resolution, Development Agreements, Annexation Agreements, Negotiated Regulation, Planned Unit Development, Contract Zoning, Incentive Zoning, Comprehensive Planning, Negotiated Permitting

Abstract:
Modern American land use regulation is characterized by a movement away from traditional command-and-control zoning toward the pervasive use of flexible, bilaterally negotiated approaches. Advocates of this agreement-based regulatory trend have not sufficiently considered the impact of applying such potentially ad hoc approaches on comprehensive planning and public norms of democratic decision-making, community engagement, and local and regional fairness. This Installment challenges this trend's legitimacy, arguing that though agreement-based land use regulation can be effective in achieving deliberative, balanced and efficient decisions, existing approaches actually hinder such decision-making and facilitate corruption by removing key aspects of land use decisions from the public sphere.

Land use regulation, property, zoning, collaborative governance, collaborative planning, development agreements, annexation agreements, negotiated regulation, planned unit development, contract zoning, incentive zoning

Abstract:
In the active literature on regulatory reinvention, many have pointed to the Endangered Species Act's Habitat Conservation Plan program as a successful example of the potential for collaborative and experimentalist regulatory innovation. Yet, despite its frequent mention as a prototype for fostering public participation and adaptive decision-making, no thorough, systematic evaluation of the program as a form of regulatory innovation exists. By integrating data from recent scientific studies, interviews, surveys of agency officials, newspaper investigations, and even unpublished biological databases, this Article serves as the first cross-disciplinary, comprehensive assessment of this pioneering but ultimately defective program.

The Article demonstrates that though a few HCPs have served as truly promising examples of the value of broad participation and adaptation in regulation, the HCP program as implemented largely allows for the proliferation of private, ill-considered agreements between agencies and developers that evade the ESA's otherwise strict prohibitions. More fundamentally, the Article contends that the HCP regulatory experiment is failing because the agencies charged with administering it have never seriously treated it like an experiment. Regulatory programs must themselves be periodically and systematically monitored for agencies to learn from and adjust to regulatory mistakes and successes. As the legislative and executive branches yet again contemplate amending the ESA, the HCP program serves as a crucial lesson in regulatory design. Only by assiduously attending to the incentives of both agency personnel and applicants in order to cultivate meaningful participation and systematic regulatory adaptation can the HCP program - and indeed any regulatory program - ever evolve.

natural resources, endangered species, threatened species, ESA, species conservation, habitat conservation, habitat conservation plan, HCP, incidental take, regulatory innovation, collaborative governance, new governance, multilateral negotiation, multi-party negotiation, Fish and Wildlife Service

Abstract:
Though legislatures and agencies are considering how to prevent further climate change, some adverse effects from a warming climate are already inevitable. Adapting to these effects is essential, but regulators and scholars have largely neglected this need. This Article evaluates the capacity of natural resource governance to cope with the effects of climate change, and provides a framework for Congress to help it do so.

The Article identifies unprecedented uncertainty as the paramount impediment raised by climate change, and demonstrates how existing fragmented governance is poorly adapted to deal with this challenge. Drawing on lessons from prior regulatory experiments, it proposes a comprehensive strategy for managing uncertainty that promotes interagency information sharing. It also recommends that legislators adopt an "adaptive governance" framework that requires agencies to systematically monitor and adapt their decisions and programs. This learning infrastructure would promote agency learning and accountability, help manage uncertainty, and reduce the likelihood and magnitude of mistakes expected to come with facing such an exceptional problem with initially imprecise tools.

The Article operates on four levels. First, it uses case studies to illustrate valuable lessons about the challenges of creating effective natural resource management. Second, the Article is anchored in the specific implications of climate change, considering the value of interagency information sharing and adaptive governance in addressing climate effects. Third, it engages the growing theoretical literature on adaptive management and federalism. Finally, it provides insight on how agencies can manage uncertainty that has far-reaching implications for other areas of administrative regulation.

climate change, environmental, administrative law, administrative regulation, natural resources, adaptive management, adaptive governance, collaborative, federalism, fragmentation, adaptation, information clearinghouse

Abstract:
This brief article, written for a symposium on "Collaboration and the Colorado River," evaluates the U.S. Department of the Interior's Glen Canyon Dam Adaptive Management Program ("AMP"). The AMP has been advanced as a pioneering collaborative and adaptive approach for both decreasing scientific uncertainty in support of regulatory decision-making and helping manage contentious resource disputes -- in this case, the increasingly thorny conflict over the Colorado River's finite natural resources. Though encouraging in some respects, the AMP serves as a valuable illustration of the flaws of existing regulatory processes purporting to incorporate collaboration and regulatory adaptation into the decision-making process. Born in the shadow of the law and improvised with too little thought as to its structure, the AMP demonstrates the need to attend to the design of the regulatory process and integrate mechanisms that compel systematic program evaluation and adaptation. As such, the AMP provides vital information on how future collaborative experiments might be modified to enhance their prospects of success.

Abstract:
To avoid extinctions and other harms to ecological health from escalating climatic change, scientists, resource managers and activists are considering and even engaging in “assisted migration” - the intentional movement of an organism to an area in which its species has never existed. This Article serves as the first cross-disciplinary exploration of the profound implications of this controversial strategy for American natural resource management. It details arguments regarding the scientific viability and legality of assisted migration under the thicket of laws that govern natural resources in the United States. The Article asserts, however, that the fundamental tensions raised by this strategy are ethical: to protect endangered species or native biota; to manage ecological systems actively or leave nature wild and uncontrolled; and to preserve resources or manage them to promote their fitness under future conditions.

The Article explains why contemporary natural resource law’s fidelity to historic baselines, protecting preexisting biota, and shielding nature from human activity is increasingly untenable in light of climate change. Active, anticipatory strategies such as assisted migration may not only be permissible but even necessary to avert substantial irreversible harm to ecological systems. Rather than unconditionally rejecting assisted migration as a potential climate change adaptation strategy, scientists and resource managers should focus on developing scientific data to assist analyses of the risks and benefits of assisted migration in particular circumstances.

More broadly, assisted migration illustrates how the institutions and goals of natural resource law must be changed to better reflect a dynamic, integrated world. Climate change forces a radical reconsideration of the goals, foci, and standards of natural resource management. Accordingly, the crucial project of natural resource law must be improving governance: cultivating agency accountability and learning to better manage uncertainty; promoting opportunities for inter-jurisdictional collaboration; and fostering public information and deliberation over the tradeoffs of strategies like assisted migration and the resource values that matter.