Research Explores Capacity of Laws to Cope with Environmental Change

September 27, 2019

UM researcher Brian Chaffin, shown here with two furry friends, studies how effectively existing laws and policies can be used to protect the environment, specifically in the context of water.MISSOULA – Do you think that major statutory reform is necessary to address global environmental challenges? Think again.

New research explores the untapped capacity of existing environmental and natural resources management statutes to address accelerating environmental change in the absence of major legislative reform. The work was published this month in the Proceedings of the National Academy of Sciences by a group of environmental law scholars, including Brian Chaffin, assistant professor of water policy and governance at the University of Montana.

The paper, “Untapped capacity for resilience in environmental law,” comes at a time when the world’s environment is changing rapidly in ways that directly impact human well-being, from migrating species to changing precipitation patterns, flooding and water supplies. As a result, adaptation – both of ecosystems and social-ecological system – is inevitable, according to researchers.

In many cases, systems also will have to transform into new configurations.

“When the ecological and social realities of a system no longer support key values such as biodiversity and human well-being, environmental managers and policymakers will be on the frontlines of guiding systems toward new configurations,” Chaffin said.

In both the U.S. and European Union, policymakers have grappled with how best to handle the challenges. Many believe that new legislative regimes will be necessary. However, in the U.S., the federal government is unlikely to engage in any major overhaul of national environmental and natural resources statutes to aid necessary adaptation and transformation efforts, even though some state and local governments are increasingly responding through legal amendments.

The new research in PNAS offers solutions to a lack of legislative reform by focusing on strategies the various government agencies that implement the statutes can take to tap into existing flexibility.

The scholars identify existing laws with provisions that provide flexibility to create new standards as conditions change. One example in the U.S. is the Magnuson-Stevens Fishery Conservation and Management Act, which allows fishery management to adjust catch allowances. The scholars note the law also has a transformative capacity stemming from the flexibility of the terms of the law itself and procedural discretion. When legal capacities are leveraged, multiple levels of government can respond to complex environmental changes while staying within a legislative framework that already exists.

The article highlights examples of existing statutes that have sufficient flexibility to substantially increase adaptive and transformative capacities to productively cope with a changing world, said Robin Craig of the University of Utah S.J. Quinney College of Law. There are two primary sources of increased capacities.

First, there is often flexibility within the statute itself, she said, with the statute providing room for new implementation strategies to cope with new realities, such as through productive exercises of federal agency discretion.

“Second, much of the existing environmental and natural resources statutory regime provides the authority to open up space for social-ecological systems to better use their own adaptive and transformative capacities,” Craig said. “For example, rather than mandate that a particular protected area remain in an increasingly forced historical state of being, agency management rule changes can allow the area to adapt and evolve to changing conditions while still protecting the new productive system that emerges.”

She said managers and stakeholders can take examples from the research and explore what they can do in their own communities to solve environmental challenges.

“The goal is to avoid system collapse – to ensure that we guide adaptation and transformation so that the evolved social-ecological systems are productive, support biodiversity and continue to contribute to human well-being, even if they are different systems from what we’ve been used to in the past.”

Another co-author, J.B. Ruhl of Vanderbilt University Law School, observed that there are examples from the past in which bold agency action overcame legislative gridlock to transform how conservation programs operated, such as how the U.S. Department of the Interior during the Clinton administration created innovative new approaches for implementing the Endangered Species Act.

“We can take a page from the past and put it into action for the future,” Ruhl said.

The full article is online here at http://bit.ly/2lL5eEE.

Besides Chaffin, Craig and Ruhl, other article co-authors come from the U.S. Environmental Protection Agency, the Netherlands’ Utrecht University School of Law and the Swedish University of Agricultural Sciences, among others.

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Contact: Brian Chaffin, UM assistant professor of water policy, 406-243-6575, brian.chaffin@umontana.edu.