Adaptive Management in the Courts

By J.B. Ruhl & Robert L. Fischman. Full text here.

Adaptive management has become the tonic of natural resources policy. With its core idea of “learning while doing,” adaptive management has become infused into 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. The Article provides the first comprehensive review of adaptive management from the per­spective that likely matters most to the natural resources 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 theoretically and how adaptive management in practice arrives at the courthouse doorsteps.

In Part II, we review how these disparities have played out in courts that have considered 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: (1) larger-scale plans are more likely to incorporate adaptive management plans that withstand judicial scrutiny than are smaller-scale ones; (2) the practice of tiering site-specific environmental impact analyses to an earlier, overarching, cumulative study is well suited to adaptive management, and adaptive management can reduce the need for supplemental analyses; and (3) adaptive management procedures, no matter how finely crafted, cannot substitute for showing that a plan will meet substantive management criteria required by law.

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 daunting future problems such as climate change.