The environment is dynamic. Our regulatory state is not.
Noted ecologist Daniel Botkin argues that “solving our environmental problems requires a new perspective” of environmental concerns that incorporates contemporary scientific understandings and embraces humanity’s role in environmental management. Recognizing a new perspective is but the first step, however. There is also a need to identify how this perspective can inform environmental policy, not just on the ground but in the very institutional architecture of environmental law and management. Then comes the really hard part, for even if it is possible to conceive of how environmental management should proceed, it may be devilishly difficult to put such ideas into practice. Old habits die hard. Legal and institutional norms die even harder.
The dominant approach to environmental protection in the United States has been a top-down, administrative regulatory model. Though often adorned with symbolic flexibility or market-oriented ornamentation, the system retains a relatively rigid and centralized structure at its core. Flexibility is rarely more than interstitial or on the margin. Existing environmental laws also implicitly, and at times explicitly, presume an antiquated, static equilibrium model of natural systems. This is particularly true of those statutes which seek to conserve species or otherwise manage living natural resources.
This regulatory approach was adopted, in part, because Congress was wary of leaving agencies more discretion about how to handle certain types of environmental problems for fear that agencies would shirk their duties or devote resources elsewhere. Yet a consequence of this approach is that agencies do not have as much flexibility or discretion as might be desirable to match specific policy measures with specific problems, and abandon the “one-size-fits-all” approach embodied in much environmental law. Many environmental laws leave little room for marginal analysis or comparative assessment of alternative policy measures.
The feedback mechanisms that force private firms to be adaptive and responsive to changing market conditions are largely absent from the administrative state.
One response to the contemporary ecological understanding is the adoption of “adaptive management.” Though much discussed, it is still relatively underutilized in environmental management. Some federal agencies have sought to implement forms of adaptive management—or what some might call “adaptive management-lite”—but there is not much to show for it.
There are opportunities to improve the adaptive and responsive nature of environmental protection efforts in the United States, but such opportunities are inherently limited so long as environmental protection is dominated by a relatively centralized, top-down administrative structure. Conventional regulatory and administrative systems are not particularly adaptive or responsive to changing environmental conditions, or even to new understandings of environmental needs. Bureaucratic systems change slowly and are rarely forward looking. This is due, in part, to legal constraints, but also due to the nature of monopolistic bureaucratic systems, and the inherent information limitations that hamper the ability of such systems to acquire and account for relevant information—let alone to encourage the discovery of such information in the first place.
If adaptive management is to be successful, there must be careful consideration of how to integrate it into the modern administrative state. The obstacles are both practical and political. Bureaucratic structures are resistant to change, and regulatory agencies do not go out of business when they fail to adapt. To the contrary, a failing agency is more likely to see a budget increase than it is to close its doors. The feedback mechanisms that force private firms to be adaptive and responsive to changing market conditions are largely absent from the administrative state.
Accounting for dynamic nature may require revisiting conventional notions of environmental protection and the underpinnings of environmental law and management. This presents an enormous challenge. Conventional approaches to environmental management may be unable to heed dynamic environmentalism’s call so long as they are confined by contemporary notions of fair administrative process, whether such constraints are the product of norms, statutes, or even the Constitution. The challenge of recognizing dynamic nature as such implicates the very foundations of contemporary environmental law and policy.
“Only political will and our basic perspective prevent us from moving constructively” toward sounder environmental policy, wrote Botkin in 1990. This remains true today.
Jonathan H. Adler's paper “Dynamic Environmentalism and Adaptive Management: Legal Obstacles and Opportunities” was recently published in the Journal of Law, Economics & Policy.
This article is from a special issue of PERC Reports: Environmental Policy in the Anthropocene.