The degree to which statutory goals are pliable is likely to significantly affect the ability of an agency with regulatory or management responsibilities to achieve those objectives in the face of novel challenges or changing circumstances. This Article explores this dynamic by comparing the degree of 'ive" provided by the goals of the regimes governing management of the five types of federal public lands in responding to the challenges posed by climate change. A comparative analysis of federal land adaptation to climate change demonstrates that a management regime's legal adaptive capacity is influenced not only by procedural flexibility, but also by the flexibility the agency has in defining and pursuing a program's substantive goals.
Though a few scholars have explored the concept of adaptive capacity as it applies to law, most focus on the impact of procedural discretion on the ability to manage change. Counterintuitively, the land regimes most closely tied to resource preservation goals have generally lagged behind those with mixed conservation-commodity development mandates in preparing for climate change. Accordingly, this Article suggests ways to enhance the substantive legal adaptive capacity of land management agencies to promote ecological health in the face of climate change, and evaluates tradeoffs implicated when policymakers choose more appropriate levels of such adaptive capacity. More generally, the Article considers how effectively accommodating change may actually require legal constraints on when or how an agency may exercise that flexibility.
Alejandro E. Camacho & Robert L. Glicksman,
Legal Adaptive Capacity : How Program Goals and Processes Shape Federal Land Adaption to Climate Change,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol87/iss3/2