Making Regulation Evolve: A Case Study in Maladaptive Management

This Article is the first cross-disciplinary, comprehensive assessment of one of the earliest regulatory reinvention programs developed to foster more participation and adaptation in decision-making—the Endangered Species Act’s Habitat Conservation Plan Program. Drawing not only from legal sources but also integrating data from recent scientific studies, interviews, surveys of government officials, newspaper investigations, and unpublished databases, this Article delves into the pioneering but defective HCP program as an example of regulatory innovation gone awry. In the active literature on regulatory reinvention, many have pointed to the HCP program as a prototype for collaborative, experimentalist innovations in governance. Though a few HCPs processes are promising examples of the value of broad participation and adaptation in regulation, this Article asserts that the HCP program, as implemented, largely allows for the proliferation of bilateral and inert agreements between agencies and developers for evading the ESA’s otherwise strict prohibitions. More fundamentally, the Article suggests that the HCP regulatory experiment is failing because the agencies charged with administering it have never seriously treated it like an experiment. As Congress again contemplates substantial ESA amendments, the Article argues that regulatory programs must themselves be periodically and systematically adapted in order for agencies, Congress and the public at large to learn and adapt from regulatory mistakes and successes. Only by viewing a regulatory program as an experiment, and by addressing the incentives of the agencies and applicants to cultivate participation and regulatory adaptation, can the HCP program—and indeed all regulation—evolve

Assisted Migration: Redefining Nature and Natural Resource Law Under Climate Change

To avoid extinctions and other harms to ecological health from escalating climatic change, scientists, resource managers, and activists are considering and even engaging in “assisted migration” - the intentional movement of an organism to an area in which its species has never existed. This Article explores the profound implications of climate change for American natural resource management through the lens of this controversial adaptation strategy. It details arguments regarding the scientific viability and legality of assisted migration under the thicket of laws that govern natural resources in the United States. The Article asserts, however, that the fundamental tensions raised by this strategy are ethical: to protect endangered species or conserve native biota; to manage ecological systems actively or leave nature wild and uncontrolled; and to preserve resources or manage them to promote their fitness under future conditions.The Article explains why contemporary natural resource law’s fidelity to historic baselines, protecting preexisting biota, and shielding nature from human activity is increasingly untenable, particularly in light of climate change. Active, anticipatory strategies such as assisted migration may not only be permissible but even necessary to avert substantial irreversible harm to ecological systems. Scientists and resource managers should focus on developing scientific data to aid analyses of the risks and benefits of assisted migration in particular circumstances. To help develop such data while minimizing ecological harm, the Article proposes provisionally limiting experimental translocations to situations where translocation is technically and economically feasible, and where the species is endangered, ecologically valuable, and compatible with the proposed site.More broadly, assisted migration illustrates how the institutions and goals of natural resource law must be changed to better reflect a dynamic, integrated world. Climate change forces a radical reconsideration of the aims, foci, and standards of natural resource management. Accordingly, the crucial project of natural resource law must be improving governance by cultivating agency accountability and learning to better manage uncertainty, promoting opportunities for inter-jurisdictional collaboration, and fostering public information and deliberation over the tradeoffs of strategies like assisted migration and the resource values that matter

Going the Way of the Dodo: De-Extinction, Dualisms, and Reframing Conservation

De-extinction, a suite of selective breeding or biotechnological processes for reviving and releasing into the environment members or facsimiles of an extinct species, has been the subject of a recent surge of analysis in popular, scientific, and legal literature. Yet de-extinction raises more fundamental questions about the relationship between humans and nature and about the more and less useful ways that the law serves to navigate that relationship. Unfortunately, the endangered species, invasive species, and public land management laws likely to govern the revival and introduction of de-extinct species largely remain premised on an understanding of nature as static and easily divisible from human activity. In these contexts, the law habitually privileges and even actively promotes what it identifies as natural and native over the unnatural and exotic. Through the example of de-extinction, this article illustrates the limitations of the law’s reliance on these crude dualisms. Currently, de-extinct species will often be obstructed as non-native and introduced (even if they might promote ecological function in a particular area) and may be allowed or promoted in locations they used to exist (even if likely to cause ecological damage). De-extinction illustrates how policymakers need to reformulate natural resources law to be less dependent on these strict dualities. Instead, the article argues in favor of cautious risk assessment that acknowledges the dynamism of nature and humanity’s indivisibility from it

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

Managing Ecosystem Effects in an Era of Rapid Climate Change

Climate change is exerting significant pressure on ecosystems. Without management strategies that impede harmful invasions and help vulnerable resources adapt, biodiversity and ecological function will likely decline. However, governing processes are too often insufficiently adaptive, and many resource laws are not designed primarily to facilitate biodiversity or promote ecological health. Many laws are primarily directed at promoting consumptive use; others on promoting historical fidelity; still others on limiting human management. Global climate change causes these various conservation goals to be increasingly at odds with each other and with promoting biodiversity. Except in rare circumstances when decline in ecological health is deemed an acceptable trade-off for historical fidelity, non-intervention, and/or human consumption or development, natural resources laws must be better adapted to accommodate change not only through adaptive management measures that integrate flexibility into regulatory processes, but also by promoting substantive goals that emphasize ecological health