Environmental Law, Episode IV: A New Hope? Can Environmental Law Adapt for Resilient Communities and Ecosystems?
21(1) Journal of Environmental and Sustainability Law 1-46 (2015)
46 Pages Posted: 6 Sep 2014 Last revised: 3 Apr 2015
Date Written: August 30, 2014
This article, forthcoming in the Journal of Environmental and Sustainability Law (formerly the Missouri Environmental Law and Policy Review), describes the evolution of U.S. environmental law through four generations and the characteristics of each generation. The fourth generation of environmental law (Fourth-Generation Environmental Law) aims to increase the resilience of linked social systems and ecosystems (social-ecological resilience). Given that systems can collapse under disturbances and shift to entirely new structures and functions, our environmental law institutions need improved adaptive capacity. There are five distinct and important alternatives to traditionally rigid, fragmented, certainty-seeking environmental law structures: adaptation, adaptive management, adaptive planning, adaptive governance, and adaptive law.
Fortunately, adaptive environmental law and governance institutions are emerging, aimed at improving social-ecological resilience. Examples include developments in adaptive watershed governance institutions. These examples of fourth-generation environmental law suggest reasons to hope that environmental law can adapt for resilient communities and ecosystems. However, the article also explores the reasons why fourth-generation environmental law might disappoint us: its inherent limits and flaws. Nonetheless, hope itself is an adaptive and resilience-building strategy. The final section of the article discusses research on the psychology of hope and what it means for how we think about environmental law in the United States.
Keywords: resilience, social-ecological resilience, panarchy, adaptation, adaptive planning, adaptive governance, adaptive management, adaptive law, environmental law, fourth generation, Star Wars, watersheds, hope, psychology
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