37 Pages Posted: 6 May 2005 Last revised: 21 Dec 2008
The history of environmental law provides as good an example as any other field in regulatory law of how successful prescriptive regulation has been at meeting public policy objectives, but how difficult it will be to extend that experience much farther into the future. For decades so-called "command and control" regulation has picked the low-hanging fruit - in environmental law, for example, it has gone after emissions from smokestacks and discharge pipes, disposal of wastes in landfills, transportation of hazardous chemicals, and similar discrete, easily-identified sources of environmental harm.
The future that lies ahead for most fields of regulation, however, is filled with problems of unwieldy dimensions and intractable causes. In environmental law, for example, the problems that are foremost to many observers include the invasion of non-native species into ecosystems, the depletion of estuarine resources by fertilizer runoff from countless agricultural operations hundreds to thousands of miles inland, the degradation of habitat from suburban "sprawl," and the evidence of climate change, which itself is irrefutable even if its causes are not. In this brand of environmental policy challenge, there are no discrete sources or clearly traced lines of causation. Rather, problems such as these exhibit the hallmark characteristics of complex adaptive systems. Their behavior emanates from a multitude of diverse, dispersed sources responding to co-evolving interactions, feedback loops, and nonlinear cause-and-effect properties. They are, to put it simply, excruciatingly hard for researchers to understand, and thus even harder for law to wrestle under control.
This kind of policy problem thus confounds the prescriptive regulation model, because there are no readily available targets for the prescriptions and, even worse, we have no idea what response the system would exhibit to any particular command. Even if legislatures armed them with unlimited powers, administrative agencies could not simply command away invasive species, or farm runoff, or new rooftops, or global climate change. There is almost universal agreement that problems of this sort demand new approaches to regulation. Agencies thus have experimented with many alternatives to prescriptive regulation, including market-based programs, information-based programs, negotiated project-specific licensing, ecosystem-scaled land management programs, multi-party collaborative planning efforts, and government-private quasi-partnerships.
To take advantage of their inherently adaptive qualities, however, these regulatory instruments must themselves be managed adaptively. It will do no good, in other words, to hand an agency a market-based program only to have the agency administer the program through centralized decision making. Nor is likely that the now dominant public land use theme of ecosystem management, which focuses on landscapes and ecosystem dynamics rather than discrete media or species, can successfully be implemented through decision making that relies on reductionist, linear models of how "parts" of ecosystems function. Not only must the instruments of regulation be transformed, therefore, but so too must the methods of regulation. Hence it is almost universally the case that advocates of regulatory innovations also advance the method of implementation known generally as adaptive management.
The voluminous literature that exists today to describe what adaptive management means traces its roots to Professor C.S. Holling's seminal work in the field, "Adaptive Environmental Assessment and Management." Although almost 30 years have passed since he and his colleagues first described the adaptive management methodology, no work on the topic since then has improved on their core theory, and far be it from me to try where so many others have failed. Its essence is an iterative, incremental decision-making process built around a continuous process of monitoring the effects of decisions and adjusting decisions accordingly. It is, in other words, far more suited to the needs of future regulatory challenges than is prescriptive regulation.
On the one hand, nothing about this is startlingly new or unusual as a general means of decision making - businesses implement adaptive management all the time, or they perish. Ironically, however, the puzzle is whether administrative agencies can behave adaptively and survive. As a leading proponent of adaptive management once observed, agencies "have not often been rewarded for flexibility, openness, and their willingness to experiment, monitor, and adapt." The deterrents to these core attributes of adaptive management come from three fronts: legislatures, the public, and the courts. In short, in order for adaptive management to flourish in administrative agencies, legislatures must empower them to do it, interest groups must let them do it, and the courts must resist the temptation to second-guess when they do in fact do it. The track record of administrative law from the era of prescriptive regulation suggests that none of these three institutional constraints will yield easily. Quite simply, there is good reason to doubt whether regulation by adaptive management is possible without substantial change in the administrative law system.
In this Article I explore the concern just raised using the example of the Endangered Species Act's (ESA) Habitat Conservation Plan (HCP) program. Part I of this Article briefly provides the general background of interest - the potential for collision between adaptive management theory and administrative law institutions - to more firmly illustrate the nature of the problem. Part II then grounds the topic in a real-world context through the story of the HCP program. Although Congress appears to have hoped that the HCP program would promote adaptive management of imperiled species, its delegation of authority to FWS was an imprint of prescriptive regulation. Nevertheless, during the 1990s, while Congress was functionally inert on reform of the ESA despite much reform rhetoric, FWS essentially reinvented the program through administrative reform in the mold of adaptive management. Soon, however, citizen groups representing environmental protection interests responded with vociferous and litigious opposition to reform, ultimately bearing down on the agency's injection of "flexibility" in the program through repeated lawsuits challenging HCP permits. With few (but notable) exceptions, the courts were all too quick to pounce as well, stifling the agency's willingness to experiment. The result could be one of the tragedies of environmental and administrative law - today, the HCP program increasingly resembles a plain vanilla regulatory program, functional on that level but increasingly stripped of its once promising adaptive qualities. One can only hope this is not a harbinger for the future of adaptive management in general, for if it is, regulation by adaptive management will not be possible.
Suggested Citation: Suggested Citation
Ruhl, J. B., Regulation by Adaptive Management - is it Possible?. Minnesota Journal of Law, Science & Technology, Vol. 7; FSU College of Law, Law and Economics Paper No. 05-19; FSU College of Law, Public Law Research Paper No. 151. Available at SSRN: https://ssrn.com/abstract=719501