Judging Adaptive Management Practices of U.S. Agencies

1 Pages Posted: 11 Mar 2016 Last revised: 19 Apr 2016

Robert Fischman

Indiana University Maurer School of Law

J. B. Ruhl

Vanderbilt University - Law School

Date Written: March 1, 2016

Abstract

All U.S. federal agencies administering environmental laws purport to practice adaptive management (AM), but little is known about how they actually implement this conservation tool. A gap between the theory and practice of AM is revealed in judicial decisions reviewing agency adaptive management plans. We analyzed all U.S. federal court opinions published through 1 January 2015 to identify the agency AM practices courts found most deficient. The shortcomings included lack of clear objectives and processes, monitoring thresholds, and defined actions triggered by thresholds. This trio of agency shortcuts around critical, iterative steps characterizes what we call AM-lite. Passive AM differs from active AM in its relative lack of management interventions through experimental strategies. In contrast, AM-lite is a distinctive form of passive AM that fails to provide for the iterative steps necessary to learn from management. Courts have developed a sophisticated understanding of AM and often offer instructive rather than merely critical opinions. The role of the judiciary is limited by agency discretion under U.S. administrative law. But courts have overturned some agency AM-lite practices and insisted on more rigorous analyses to ensure that the promised benefits of structured learning and fine-tuned management have a reasonable likelihood of occurring. Nonetheless, there remains a mismatch in U.S. administrative law between the flexibility demanded by adaptive management and the legal objectives of transparency, public participation, and finality.

Keywords: adaptation, conservation, planning, administrative law, climate change

Suggested Citation

Fischman, Robert and Ruhl, J. B., Judging Adaptive Management Practices of U.S. Agencies (March 1, 2016). 30 Conservation Biology 268-275 (2016); Indiana Legal Studies Research Paper No. 336; Vanderbilt Law and Economics Research Paper No. 16-6; Vanderbilt Public Law Research Paper No. 16-15. Available at SSRN: https://ssrn.com/abstract=2745481

Robert Fischman (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

J. B. Ruhl

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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