Adaptive Management and NEPA: How to Reconcile Predictive Assessment in the Face of Uncertainty with Natural Resource Management Flexibility and Success

For years, public lands scholars lamented the limited success that federal agencies had in applying adaptive management decisionmaking processes in pursuit of their natural resource management responsibilities. Agency duties to comply with the National Environmental Policy Act (NEPA) have played a role in creating a disconnect between the theory and application of adaptive management. NEPA was designed to force agencies to predict (and consider ways to avoid) the adverse environmental impacts of actions before committing to them. Adaptive management is built on the premise that, at least in conditions of uncertainty such as those that often characterize natural resource management, acting on the basis of one-time predictive judgments is a prescription for failure. Instead, resource managers need to continuously track the consequences of their decisions, reevaluate their management approaches based on evolving evidence, and make appropriate adjustments before starting this iterative process anew.Notwithstanding the tension between the decisionmaking approaches reflected in NEPA and adaptive management, the federal land management agencies have had to figure out how to implement their NEPA responsibilities as they have increasingly resorted to adaptive management strategies. This Article analyzes the inevitable litigation that these efforts have spurred, identifying how courts have applied various aspects of NEPA’s mandates to agency resort to adaptive management. This analysis reveals that careful attention to NEPA’s requirements makes reconciliation of the tension between NEPA and adaptive management possible. The Article gleans a series of best practices that should allow agencies to benefit from the flexibility that adaptive management affords its practitioners while satisfying NEPA’s “stop and think”mandates

Adaptive Management in the Courts

Adaptive management has become the tonic of natural resources policy. With its core idea of “learning while doing,” adaptive management has infused the natural resources policy world to the point of ubiquity, surfacing in everything from mundane agency permits to grand presidential proclamations. Indeed, it is no exaggeration to suggest that these days adaptive management is natural resources policy. But is it working? Does appending “adaptive” in front of “management” somehow make natural resources policy, which has always been about balancing competing claims to nature’s bounty, something more and better? Many legal and policy scholars have asked that question, with mixed reviews. Their evaluations, however, have rested on theory, program-specific surveys, and isolated case studies. This article provides the first comprehensive review of adaptive management from the perspective that likely matters most to the natural resource agencies practicing adaptive management - how is it faring in the courts? Part I of the Article examines the theory, policy, and practice of adaptive management, focusing on the experience of the federal resource management agencies. The end product in practice is something we call “a m-lite,” a watered down version of the theory that resembles ad hoc contingency planning more than it does planned “learning while doing.” This gap between theory and practice leads to profound disparities between how agencies justify decisions and how adaptive management in practice arrives at the courthouse doorsteps. In Part II we review how these disparities have played out in courts considering claims that agency practice of adaptive management has not lived up to its theoretical promise or to the legal demands of substantive and procedural environmental law. We extract three key themes from the body of case law in this respect. Part III extends from the existing case law to draw lessons for agencies and Congress about the future practice of adaptive management. Our ultimate message to agencies is that a m-lite can be an effective decision method - and one that survives judicial scrutiny - but agencies must be more disciplined about its design and implementation. This includes resisting the temptation to employ adaptive management to dodge burdensome procedural requirements, substantive management criteria, and contentious stakeholder participation. If faithfully followed and enforced, this model, despite its flaws, could serve as an important component of natural resources policy to confront problems of the future as daunting as climate change

Judging Adaptive Management Practices of U.S. Agencies

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

Complexity Theory, Adaptation, and Administrative Law

Recently, commentators have applied insights from complexity theory to legal analysis generally and to administrative law in particular. This Article focuses on one of the central problems that complexity. theory addresses, the importance and mechanisms of adaptation within complex systems. In Part I, the Article uses three features of complex adaptive systems-emergence from self-assembly, nonlinearity, and sensitivity to initial conditions-and explores the extent to which they may add value as a matter of positive analysis to the understanding of change within legal systems. In Part H, the Article focuses on three normative claims in public law scholarship that depend explicitly or implicitly on notions of adaptation: that states offer advantages over the federal government because experimentation can make them more adaptive, that federal agencies should themselves become more experimentalist using the tool of adaptive management, and that administrative agencies shou Id adopt collaborative mechanisms in policymaking. Using two analytic tools found in the complexity literature, the genetic algorithm and evolutionary game theory, the Article tests the extent to which these three normative claims are borne out

Proposed Experimental Actions for Water Years 2005-2006 Colorado River, Arizona, in Glen Canyon National Recreation Area and Grand Canyon National Park

In September 2002 the Bureau of Reclamation, National Park Service (NPS), and U.S. Geological Survey released an environmental assessment (EA) on proposed experimental releases from Glen Canyon Dam and removal of non‐native fish from the Colorado River in Grand Canyon, Arizona (Bureau of Reclamation, NPS, and USGS 2002). The experiment was developed by the Grand Canyon Monitoring and Research Center of the U.S. Geological Survey (GCMRC), cooperating scientists, and the Technical Work Group (TWG) of the Glen Canyon Dam Adaptive Management Program (GCDAMP). It was recommended to the Secretary of the Interior by the Adaptive Management Work Group (AMWG), a Federal Advisory Committee charged with providing input to the Secretary pursuant to fulfilling provisions of the Grand Canyon Protection Act. In December 2002, following tribal consultation, public meetings, and responses to comments by the federal agencies and the public, the Secretary of the Interior concurred with the agencies’ finding of no significant impact for the proposed project and agreed that the experiment should move forward

Management Innovations for Resilient Public Rangelands: Adoption Constraints and Considerations for Interagency Diffusion

Maintaining healthy rangeland ecosystems requires adaptive co-management at the landscape scale. Because the majority of western rangelands are publicly owned, it is critical that federal land management agencies work together in generating and sharing information. Promotion and communication of rangeland management innovations among agencies is one means of sharing information. Two rangeland management innovations, the Weather-Centric Restoration Tool and Interpreting Indicators of Rangeland Health, were studied in order to better understand agency adoption decisions and barriers to diffusion of the innovations across agencies. Using a mixed qualitative methodology, we interviewed land managers across the floristic Great Basin and in southeastern Utah responsible for making or advising rangeland management decisions. Using thematic analysis of participant interviews and land managers’ social networks in southeastern Utah, we were able to identify variables at the innovation, individual, organization, and external system levels that affect innovation adoption and diffusion across agencies. In line with previous research, desirable innovation traits were related to five constructs: complexity, relative advantage, compatibility, trialability, and observability. Interagency siloing was found to be the biggest factor affecting individual and organization-level adoption decisions. External sociopolitical factors were also found to create organization-level barriers including funding streams, legal considerations, and differing institutional cultures between agencies. While management innovations are hindered by these hurdles, innovations also serve as promoters of institutional change that reshape these constraints. However, overcoming barriers to innovation requires the presence of innovation champions who can influence both incremental bottom-up and top-down processes

Adapting Governance to Climate Change: Managing Uncertainty Through a Learning Infrastructure

Though legislatures and agencies are considering how to prevent further climate change, some adverse effects from a warming climate are already inevitable. Adapting to these effects is essential, but regulators and scholars have largely neglected this need. This Article evaluates the capacity of natural resource governance to cope with the effects of climate change, and provides a framework for Congress to help it do so.The Article identifies unprecedented uncertainty as the paramount impediment raised by climate change, and demonstrates how existing fragmented governance is poorly adapted to deal with this challenge. Drawing on lessons from prior regulatory experiments, it proposes a comprehensive strategy for managing uncertainty that promotes interagency information sharing. It also recommends that legislators adopt an adaptive governance framework that requires agencies to systematically monitor and adapt their decisions and programs. This learning infrastructure would promote agency learning and accountability, help manage uncertainty, and reduce the likelihood and magnitude of mistakes expected to come with facing such an exceptional problem with initially imprecise tools.The Article operates on four levels. First, it uses case studies to illustrate valuable lessons about the challenges of creating effective natural resource management. Second, the Article is anchored in the specific implications of climate change, considering the value of interagency information sharing and adaptive governance in addressing climate effects. Third, it engages the growing theoretical literature on adaptive management and federalism. Finally, it provides insight on how agencies can manage uncertainty that has far-reaching implications for other areas of administrative regulation

Building Adaptive Capacity through Learning in Project-Oriented Organisations in Infrastructure Planning

Transport infrastructure networks are currently being challenged by rapidly changing contexts, such as climate change, new IT and mobility technologies, ageing infrastructure, demographic changes and growing engagement of stakeholders. These challenges call for an adaptive management approach in infrastructure planning. Apart from making the physical infrastructure more adaptive, organisational adaptive capacity is currently being discussed in both literature and practice. The literature describes learning as one of the key elements of organisational adaptive capacity. However, it remains unclear how infrastructure network agencies learn. Most of these agencies are organised in a project-oriented way. Projects can be considered as information exchange platforms of individuals that have to align their knowledge and interpretations to collectively make sense of this information to deliver a project-result. However, projects operate relatively autonomously from their parent organisation. This article aims to enhance the understanding of how projects learn from each other and how the parent organisation learns from projects and vice versa. To this end, we have conducted an in-depth case study of a typical project-oriented organisation in infrastructure planning: Rijkswaterstaat - the executive agency of the Ministry of Infrastructure and Water Management in the Netherlands. Data was collected through documents and semi-structured interviews with members of a selection of projects of Rijkswaterstaat and other members of this organisation. We used Social Network Analysis to support the analysis of the data. Subsequently, the results were confronted with literature to understand how collective learning occurs in project-oriented organisations