The degree to which statutory goals are pliable is likely to affect significantly 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 “give” 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. It asserts that the extent of climate change adaptation in which an agency engages is influenced by a program’s legal adaptive capacity — the mutability of the goals pursued under its authorizing legal framework. 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. 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. Counterintuitively, for this reason, 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, the 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.
GW Paper Series
GWU Law School Public Law Research Paper No. 2015-25; GWU Legal Studies Research Paper No. 2015-25
Camacho, Alejandro E. and Glicksman, Robert L., Legal Adaptive Capacity: How Program Goals and Processes Shape Federal Land Adaptation to Climate Change (July 10, 2015). University of Colorado Law Review, Vol. 87, 2016, Forthcoming; UC Irvine School of Law Research Paper No. 2015-68; GWU Law School Public Law Research Paper No. 2015-25; GWU Legal Studies Research Paper No. 2015-25. Available at SSRN: http://ssrn.com/abstract=2629363