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When does legal flexibility work in environmental law?
Environmental law scholars, practitioners, and policymakers have wrestled for some time with the implications of climate change for environmental law. There is widespread, although not universal, agreement that climate change requires greater flexibility in environmental legal systems. Flexibility - reduced procedural requirements for administrative agency decision making and less rigid substantive standards - would allow the agencies that implement environmental law to adapt to a future world characterized by dynamic, uncertain changes in natural resource systems. According to its proponents, flexibility would make it easier for agencies to more frequently update their management or regulatory decisions to respond to changed conditions, and also to facilitate adaptive management. However, there has been little exploration of the conditions under which flexibility improves or undermines the effectiveness of environmental law. This Article examines two areas of environmental law that have historically had a great deal of flexibility: hunting law and marine fisheries law. In both areas, management and regulatory decisions are updated on a regular basis by the relevant agencies, often annually. Procedural requirements for making decisions are often streamlined. And the substantive standards that apply to agency decisions are often quite broad and flexible, leaving substantial discretion to the agency. Yet these two areas of environmental law have experienced very different outcomes in terms of implementation: fisheries management in the United States is often perceived as failing, while hunting law is seen as quite successful in achieving its goals
Law in the Anthropocene Epoch
Humans and the effects of their activities now substantially influence the entire planet, including its oceans, climate, atmosphere, and lands. Human influence has become so large that earth scientists have debated whether to identify a new geologic time period: the Anthropocene. The Anthropocene will surely have substantial effects on society and economies, and law will be no exception. The Anthropocene is the product of the aggregation of billions of individual human actions, the impact of which is exponentially increasing because of growing technological advances and population. Humans will inevitably respond to the Anthropocene, if only to adapt to the significant changes in oceans, climate, biodiversity, and other critical functions upon which society depends. These responses will ineluctably lead to greater government involvement in a wide range of human activities and the constant updating of government laws and regulations to respond to new challenges. The result will put pressure on a wide range of legal doctrines in public and private law, including torts, property, constitutional, administrative, and criminal law. These changes will parallel similar revolutionary legal changes associated with industrialization and the development of a national economy in the United States in the nineteenth and twentieth centuries. Just as with those legal changes, the legal changes of the Anthropocene will put pressure on normative commitments at the heart of American law, including the classical liberal paradigm that government intrusion into individual action should be the exception, rather than the norm. Managing the impacts of these legal changes will be a key challenge for the legal system in the next century