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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 eftectiveness 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. This Article concludes that these different outcomes are the result of the interaction of legal flexibility with two other factors: the level of uncertainty about the condition or status of the natural resource being managed and the political context for regulatory or management decisions. Fisheries management is characterized by much greater levels of uncertainty about population levels than hunting management. Moreover, fisheries are the one area in the U.S. economy where there is still a substantial commercial industry based on the capture of wildlife for human use. The combination of scientific uncertainty and flexible law creates a substantial discretionary space in which decision makers can operate. In other words, decision makers have a wide range of legally defensible management choices. The fishing industry is able to exploit this fact to argue for weaker, but still legally defensible, regulation. The industry has every incentive to organize in pursuit of this goal. In contrast, commercial hunting was eliminated in the United States in the nineteenth century. Thus, there are no major interest groups with a stake in increasing hunting quotas, and therefore there is no substantial effort to manipulate a flexible legal system to weaken regulatory standards. Whether flexibility will be successful in a regulatory or management system will depend in part on the scientific and political context for the resource being protected or managed Flexibility is not a panacea that can be applied uniformly throughout environmental law.


Reposted with permission from HeinOnline and Ecology Law Quarterly.

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