One of the ongoing tensions in environmental law is the conflict between uniformity and flexibility, constancy and change. Many of the environmental successes over the past thirty years derive from uniform standards that are straightforward to administer and enforce. The Clean Water Act’s requirement, for example, that all industrial polluters are obligated to utilize the same end-of-pipe, technology-based pollution controls is responsible for dramatically cleaning up our waters.
There are, of course, still more low-hanging fruit to be addressed under our existing laws, but building upon the environmental gains we have made is also challenge. The remaining problems are often complex, the pollution sources more dispersed, ecosystems change. Developing policies to clean up or prevent a particular mess is one thing, but developing policies that respond to new scientific information and promote ecosystem health more broadly is quite another. Environmental managers, regulators, and policymakers are thus growing increasingly interested in the concept of resilience to develop new approaches to protecting natural resources, particularly in light of climate change.
Ecologists at the Resilience Alliance define resilience as “the capacity of an ecosystem to tolerate disturbance without changing into a qualitatively different state.” Put another way, resilience is the ability to persist and adapt to stress and change without falling apart. So some key questions for natural resource managers include: How do we develop ecosystem resilience? When is it too late? What laws and policies foster or impede resilience? What adaptive management practices promote or impede resilience?
CPR member scholars Mary Jane Angelo, Alyson Flournoy, Rob Glicksman, and Sandi Zellmer tackled some of the questions surrounding adaptive management and resilience theory, participating in Resilience and Environmental Law, a symposium hosted at the University of Nebraska. The articles they wrote for the symposium appeared in the Nebraska Law Review this summer.
- In Ecosystem Resilience to Disruptions Linked to Global Climate Change: An Adaptive Approach to Federal Land Management, 87 Neb. L. Rev. 833 (2009), Rob Glicksman describes the new challenges climate change will create for federal land management, highlighting the deficiencies in the nature, scope, and implementation under current statutes to protect public lands. Glicksman recommends ten changes in law and policy to help federal land managers to better mitigate the causes of, and adapt to, the impacts of climate change. For example, because the effects of climate change are not and will not be bounded by human jurisdictional designations yet only Congress has the authority to create or change the boundaries of wilderness areas, Glicksman proposes that Congress establish the means for land management agencies to plan beyond their existing boundaries and prepare “to change the status of particular land units, alter the mix of permissible uses, and alter the boundaries of adjacent units (e.g., a national wildlife refuge next to a national forest) to accommodate species migrations and other climate-related changes in the condition and location of resources such as wildlife.” He also suggests changes in practice that can increase resilience and facilitate adaptation, maintaining that land management agencies should have enhanced authority to manage external threats to the resources under their control.
- In Why Resilience May Not Always Be a Good Thing: Lessons in Ecosystem Restoration from Glen Canyon and the Everglades, 87 Neb. L. Rev. 893 (2009), Sandi Zellmer and Lance Gunderson, an ecologist and member of the Resilience Alliance, describe how federal and state resource managers have managed the extremely complex systems of the Florida Everglades and the Grand Canyon of the Colorado River. Their analysis resulted in three broad observations: “(1) adaptive governance and consensus-based management are not the same thing, and the latter can sabotage rather than promote restoration initiatives; (2) heavy reliance on engineered solutions increases the likelihood of failure; and (3) a continuing commitment to adaptive management is critical in achieving restoration success.” Using the case studies to illuminate the links between “ecological principles and legal analysis,” the authors also demonstrate that resilience applies to social systems in addition to ecological systems – with the unfortunate result that “pathologically resilient institutions” often trump restoration progress.
- In Stumbling Toward Success: A Story of Adaptive Law and Ecological Resilience, 87 Neb. L. Rev. 950 (2009), Mary Jane Angelo uses a case study of Lake Apopka to show how adaptive management can be used successfully to restore a badly degraded system. Angelo’s story is encouraging, but realistic, noting the many barriers that complicated restoration efforts, such as lack of information and complexity. She notes how several approaches were required to make gains, observing that, while adaptive management at its best learns from its mistakes, policymakers and the public are far less tolerant of uncertainty, which pressures environmental managers to ignore new information or “spin” the old. Angelo also describes how using “nature as a blueprint” was a key factor in the lake’s restoration, as “reintroducing littoral zones, adjacent wetlands, restructuring of the fish populations, planting bottom-stabilizing vegetation and reducing nutrient inputs” were essential components of restoration success.
- In Protecting a Natural Resource Legacy While Promoting Resilience: Can It Be Done?, 87 Neb. L. Rev. 1008 (2009), Alyson Flournoy proposes new legislation — the National Environmental Legacy Act — to more effectively protect public natural resources. The bill would seek to remedy the lack of meaningful long-term conservation goals for public resources as well as the lack of associated enforceable constraints on our depletion and degradation of these resources. In her article, Flournoy evaluates the extent to which the Act’s design is consistent with the ecological insights of resilience, concluding that the concept of resilience eases the “tensions that bedevil efforts to design laws that are enforceable and yet ecologically sound,” because it takes uncertainty into account.