The Pardy-Ruhl Dialogue on Ecosystem Management Part V: Discretion, Complex-Adaptive Problem Solving and the Rule of Law

15 Pages Posted: 12 Feb 2009

See all articles by Bruce Pardy

Bruce Pardy

Queen's University - Faculty of Law

Date Written: February 11, 2009

Abstract

The question of discretion in ecosystem management cuts to the core of the way one conceives environmental law. How much discretion is appropriate? What kind? In whose hands? Discretion is particularly troublesome when there are no generally applicable, abstract rules. EM is a dynamic, "complex-adaptive" process that consists of a continual series of actions and measurements that adjusts solutions to changing conditions, rather than a one-time decision about relative rights and responsibilities like a judicial decision. In spite of these differences, EM is more like a conventional decision-making system than a complex-adaptive system because it is coercive. From the perspective of ordinary citizens, EM is a prescriptive phenomenon. It tells them what to do. It consists of an authority giving orders - and not even in a manner in which the authority can be held to democratic account or legal appeal. Its legal power comes from the centre; its authority is vested in a scientific elite; managers have the power to compel a plan of action. These managers are generally competent professionals with the best of intentions, but the rule of law is not based upon faith in good intentions. It is achieved by limits to discretion and structural checks and balances. The case against discretionary ecosystem management is not that legal traditions are more valuable than ecosystem integrity, but that limits on discretion are more likely, not less, to protect such integrity. A discretionary, ad hoc administrative process is not the mechanism that will halt an incremental slide into a completely human-made environment. EM infringes upon liberties, breaches legal norms, gives control to unaccountable authorities and yet still fails to stem the tide of ecosystem decline. The onus is on the managers to show that EM is now the only possible approach to ecosystem governance. Until then, we should look for something better.

Keywords: Ecosystem management, environmental law, rule of law, complex-adaptive, discretion, environmental policy, environmental planning

JEL Classification: K32, K23

Suggested Citation

Pardy, Bruce, The Pardy-Ruhl Dialogue on Ecosystem Management Part V: Discretion, Complex-Adaptive Problem Solving and the Rule of Law (February 11, 2009). Pace Environmental Law (PELR) Review, Vol. 25, No. 2, p. 341, 2008. Available at SSRN: https://ssrn.com/abstract=1341309

Bruce Pardy (Contact Author)

Queen's University - Faculty of Law ( email )

Macdonald Hall
Kingston, Ontario K7L 3N6
Canada
613-533-6000 Ext. 77570 (Phone)
613-533-6509 (Fax)

HOME PAGE: http://law.queensu.ca/facultyAndStaff/facultyDirectory/pardy.html.htm

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