Adaptive Law and Resilience

Abstract

Environmental law is under dynamic and relentless pressure to develop a framework that is adaptive. Resilience theory -- based on considerable scientific data and examples -- aims to explain ecological and social systems that are dynamic, complex, and subject to abrupt and unpredictable change. In contrast, the foundations of environmental law assume that nature is relatively stable, changing primarily in linear patterns within a range of predictable conditions. Moreover, the U.S. legal system in general aims to create certainty and security in the distribution of resources among humans in society. The law tends to favor monocentric and unimodal methods (top-down "panacea" or "optimal instrument" solutions to problems) and linear processes. These features of U.S. environmental law are maladaptive and make it ill-suited for emerging environmental challenges. Improving the adaptive capacity of the U.S. legal system will require not merely the occasional use of specific adaptive techniques or tools but the development of over-arching systemic principles that maintain the resilience and adaptive capacity of ecological and social systems.

In this article, law-and-institutions scholar Tony Arnold and resilience-and-panarchy scientist Lance Gunderson propose a new adaptive law framework based on 4 features: 1) adaptive goals that aim for multiple forms of resilience; 2) adaptive system structure that is polycentric, multimodal, and multiscalar; 3) methods of adaptation and context-regarding flexibility; and 4) iterative processes with both feedback loops and accountability mechanisms for conservation. The inadequacies of existing generations of environmental law may be contributing to changes in environmental law to move towards an adaptive regime. The scientific theories of panarchy -- how structure emerges out of nested cycles of adaptation and change -- may aid in studying how environmental law is changing and should change to increase its adaptive capacity.

Keywords: resilience, panarchy, adaptation, adaptive law, environmental law, change, dynamic systems, ecosystems, ecology, complexity, sustainability, discretion, evolution, iterative processes, public trust, ecosystem services, conservation, natural resources, endangered species, wetlands, watersheds