Regulation by Adaptive Management--Is It Possible?

Abstract

Today's voluminous literature on adaptive management traces its roots to Professor C.S. Holling's seminal work, Adaptive Environmental Assessment and Management. Although almost thirty years have passed since he and his colleagues first described the adaptive management methodology, no work on the topic has improved on their core theory. Its essence is an iterative, incremental decisionmaking process built around a continuous process of monitoring the effects of decisions and adjusting decisions accordingly. It is in other words, far more suited to the needs of future regulatory challenges than is prescriptive regulation. My focus, however, is not on what adaptive management should be, but on whether it can be ... There is probably no regulatory program more in need of adaptive management than the conservation of endangered species, yet the adaptive energy is being sucked dry from the HCP program by the institutions of administrative law. How can this have come to be, and what can be done to improve the overall situation of adaptive management in administrative law? Part I of this Article briefly places those questions in the general background of interest-the potential for collision between adaptive management theory and administrative law institutions-to more firmly illustrate the nature of the problem. Part II then grounds the topic in a realworld context through the story of the HCP program.