Ecosystems, Adaptive Management - Ecological Systems - page 140

work before an agency promulgates a rule or issues a permit [ 54 ]. This
“pre-decision” activity allows for public input and prepares agencies for judicial
review. Ruhl [ 54 ] contends that “agencies will find that interest groups and courts
relentlessly will erode adaptive agency behavior, using all the tools conventional
administrative law puts at their disposal.” Having to operate in an atmosphere
where each policy is evaluated on the “front-end,” in anticipation of public and
legal scrutiny, has squelched agencies' appetite for adaptive management.
US administrative law is a two-step process, in which the first step allows for
public comment on draft documents and alternative options [ 55 ]. The second step is
final agency action, which creates “certainty” to the process and makes the decision
subject to judicial review. This process is based on the assumption that agencies
have the capacity to predict the consequences of a “final agency action” [ 55 ]. Thus,
there is a fundamental conflict between linear legal processes (i.e., administrative
law) based on “stationarity,” versus environmental management frameworks (i.e.,
adaptive management) based on the realization of dynamic systems characterized
by “surprise” [ 55 ]. Given this inherent conflict, adaptive management may not be
possible under the current administrative law framework [ 54 ].
The adversarial character of administrative law, combined with the need for
certainty (e.g., procedural rules) in the larger realm of American law, is likely
incompatible with adaptive management [ 56 ]. Thus, environmental law is at odds
with science, as the certainty required for socio-political stability makes it very
difficult to apply a novel approach to ecosystemmanagement (e.g., adaptive manage-
ment) that requires institutional flexibility. Thus, if adaptive management is necessary
for good environmental management, environmental law must be “adapted” to fit
with adaptive management [ 54 ]. Karkkainen [ 56 ] argues that administrative law
should proceed on two trajectories: (1) a fixed rule track that will apply unless an
agency can justify otherwise; and (2) an adaptive management track, where a new set
of administrative law standards specific to adaptive management would hold prece-
dence, in order to actualize adaptive management as a tool for environmental policy.
Thus, some in the law community argue that adaptive management is not possible
under the current administrative law framework [ 54 ]. The National Environmental
Policy Act (NEPA) may act as a barrier to implementation of adaptive management
(sensu Holling) [ 57 ]. NEPA could possibly be modified to an iterative process that
could accommodate adaptive management [ 57 ]. Ruhl [ 54 ] contends that adaptive
management is necessary for good environmental management, which in turn means
that environmental law must be “adapted” to fit with adaptive management.
In effect, administrative agencies in the USA do not conduct adaptive manage-
ment as it was originally conceived [ 55 ]. Rather, agencies conduct adaptive man-
agement “lite,” as the courts have provided some leeway to adaptive management
projects, provided they have requirements that are legally enforceable [ 55 ]. The
primary problem with adaptive management “lite” is that it does not measure up to
the standards of adaptive management theory, nor does it hold up under the scrutiny
of substantive and procedural law. Adaptive management (sensu Holling) is not
likely until Congress provides more funding for adaptive management and clear
standards for the adaptive management process [ 55 ].