Can Regulation Evolve? Lessons from a Study in Maladaptive Management

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data from recent scientific studies, interviews, surveys of agency officials, newspaper investigations, and even unpublished biological databases, this Article serves as the first cross-disciplinary, comprehensive assessment of this pioneering but ultimately defective program.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.

Keywords: 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

JEL Classification: Q20, Q28, Q30, Q32, Q38