GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2021

Status

Accepted

Abstract

For years, public lands scholars lamented the limited success that federal agencies had in applying adaptive management decisionmaking processes in pursuit of their natural resource management responsibilities. Agency duties to comply with the National Environmental Policy Act (NEPA) have played a role in creating a disconnect between the theory and application of adaptive management. NEPA was designed to force agencies to predict (and consider ways to avoid) the adverse environmental impacts of actions before committing to them. Adaptive management is built on the premise that, at least in conditions of uncertainty such as those that often characterize natural resource management, acting on the basis of one-time predictive judgments is a prescription for failure. Instead, resource managers need to continuously track the consequences of their decisions, reevaluate their management approaches based on evolving evidence, and make appropriate adjustments before starting this iterative process anew.

Notwithstanding the tension between the decisionmaking approaches reflected in NEPA and adaptive management, the federal land management agencies have had to figure out how to implement their NEPA responsibilities as they have increasingly resorted to adaptive management strategies. This Article analyzes the inevitable litigation that these efforts have spurred, identifying how courts have applied various aspects of NEPA’s mandates to agency resort to adaptive management. This analysis reveals that careful attention to NEPA’s requirements makes reconciliation of the tension between NEPA and adaptive management possible. The Article gleans a series of best practices that should allow agencies to benefit from the flexibility that adaptive management affords its practitioners while satisfying NEPA’s “stop and think”
mandates.

GW Paper Series

2021-32

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