Thursday, September 10, 2015

Judging adaptive management practices of U.S. agencies

 2015 Aug 26. doi: 10.1111/cobi.12616. [Epub ahead of print]

Judging adaptive management practices of U.S. agencies.

Author information

  • 1Maurer School of Law, 211 S. Indiana Avenue, Indiana University, Bloomington, IN, 47405, USA. rfischma@indiana.edu.
  • 2Vanderbilt University Law School, Nashville, TN, 37203, USA.

Abstract

A gap between the theory and practice of adaptive management (AM) is revealed in judicial decisions reviewing agency adaptive management plans. This analysis of all U.S. federal court opinions published through January 1, 2015 identifies the agency practices courts find most deficient, including lack of clear objectives and processes, monitoring thresholds, and defined actions triggered by thresholds. This trio of agency shortcuts 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 analysis 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. 

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