Letting Go of Stability: Resilience and Environmental Law

38 Pages Posted: 20 Aug 2018 Last revised: 10 May 2019

See all articles by Robert Fischman

Robert Fischman

Indiana University Maurer School of Law

Date Written: 2019

Abstract

Historic variation in the environment once served as a reliable guide to future behavior. Sustainability promised continuation of ecological and social structures and functions within the known envelope of historic variation. Now climate change and other environmental stressors are tipping systems into behaviors that no longer remain within the confines of precedent. Social-ecological systems are neither persistent nor predicable. Letting go of stability releases us from untenable expectations of steady maintenance of some natural order. Resistance to change will continue to play a role as environmental law suppresses disruptions and buys time. But resistance will eventually yield the stage to recovery and transformation. Recovery seeks to restore some social-ecological services after a disturbance. Transformation reorganizes systems entirely. Resilience provides a better framework than sustainability for considering the relative merits of these management approaches. Managing resilience as an environmental law objective will promise less but deliver more of what it promises. Environmental law is for people—provisioning their wants and resolving their disputes. Viewing it as a nested set of social-ecological systems gets us away from dualist notions of nature versus society that seldom help the environmentalist cause. Precaution will remain a defining attribute of environmental law, but it cannot promise certainty. Static law will yield to experimentation and moral imperatives for change. Resilient environmental law will need to be attentive to social, as well as ecological, transformations. It will clarify for citizens how they benefit from environmental law. This article synthesizes and assesses the legal scholarship on resilience. It suggests productive paths for law reform and more equitable tools for weighing consequences of natural resource management. Environmental law research in the coming years should explore specific, place-based approaches to managing resilience and safe-fail designs for adaptive governance.

Keywords: environmental law, natural resources law, resilience, sustainability, climate change, legal scholarship

Suggested Citation

Fischman, Robert, Letting Go of Stability: Resilience and Environmental Law (2019). Indiana Law Journal. Vol. 94. 689-725 (2019); Indiana Legal Studies Research Paper No. 397. Available at SSRN: https://ssrn.com/abstract=3235377

Robert Fischman (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

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