Natural resource management can be complicated and filled with uncertainty, especially over longer time scales and across large, varied landscapes. It makes sense—natural systems are highly interconnected and complex, a fact that the ecological sciences have recognized for decades. But natural systems don’t always align with legal systems. In the United States, agencies charged with managing natural resources routinely engage in predictive assessments about how their actions will impact the environment, often to comply with laws such as the National Environmental Policy Act (NEPA). Making meaningful predictions in the face of such high levels of uncertainty can be challenging, especially in a rapidly evolving world increasingly shaped by climate change.
Enter adaptive management—a cyclical management strategy. It relies on monitoring data to make the adjustments needed to ensure a project continues to meet clearly articulated goals over time. How can agencies use this approach effectively, both to meet obligations under NEPA and to retain flexibility while making decisions in a changing landscape? In a recent law review article, my co-author, George Washington Law Professor Robert L. Glicksman, and I argue that as long as agencies adhere to a set of procedural and substantive best practices, adaptive management approaches and NEPA analyses are not only reconcilable but can provide essential flexibility for managing complex systems. The article explores how federal land management agencies have integrated adaptive management into their NEPA procedures, and provides a comprehensive overview of how federal courts have dealt with challenges to agencies’ use of this strategy.
Based in part on advancements in science, federal land management agencies, such as the U.S. Forest Service and ones within the Department of Interior, including the Bureau of Land Management and the National Park Service (NPS), have increasingly relied on adaptive management and discussed its use in NEPA documentation. The Council on Environmental Quality, charged with issuing NEPA regulations, has also endorsed its use, although not through binding regulations. The Interior Department’s regulations for implementing NEPA state that adaptive management “is not inconsistent with NEPA” and using adaptive management “does not preclude the necessity of complying with NEPA.” While the NPS has not issued regulations on adaptive management (although of course, those from the Interior Department apply to the agency), it has addressed the topic in an Applications Guide document. The guidance emphasizes the “share[d] emphasis on learning” and the need for adaptive management to clearly articulate goals, monitoring targets, and actions anticipated to respond to monitoring data.
Without any mandates or directives for dealing with adaptive management in NEPA analyses, one potential problem is that agencies will forego describing a thorough long-term plan with detailed guardrails and instead simply point to an adaptive management approach. Federal courts have found that the adaptive management methodology is a viable one, but they have not shied away from critically inspecting components in an agency’s adaptive management plan. And there are many possible components. In fact, challenges have arisen on many aspects of NEPA, including those related to applicability, mitigation measures, timing and scope, and alternatives, among others.
Based on a review of decided cases, we found that challenges based on a plan’s mitigation and monitoring elements are the most common. In these cases, plans are typically challenged for being overly vague or lacking in specificity; however, these challenges fail more often than they succeed. Agencies have run into problems, however, when adaptive management plans have inadequate monitoring systems or vague triggers for responsive actions.
The article suggests that by following a series of procedural and substantive recommendations, agencies can successfully use adaptive management to comply with NEPA while retaining flexibility when managing complex and highly uncertain natural resource regimes. These procedural strategies involve identifying potentially affected stakeholders, providing broad opportunities for public participation and considering public input, and listening to recommendations from other relevant, expert agencies.
We point to five elements that should be included in any adaptive management plan. First is setting clear goals, which help to set an agenda and provide transparency on what objectives the overall management strategy is trying to achieve. Second, getting an accurate assessment of baseline conditions allows agencies to compare subsequent monitoring data. Third, outlining the thresholds at which management actions should be taken promotes certainty and can assist with judicial enforcement of actions taken pursuant to the plan. Fourth, a monitoring framework that collects and evaluates data is the backbone of adaptive management. And finally, identifying one or more response actions—that decisionmakers should take when monitoring data shows certain thresholds have been met or exceeded—will replenish the iterative process.
Moreover, adaptive management principles can be tailored to fit the particular needs of a program or project. Used well, the approach can provide an essential science-based framework for dealing with this century’s wicked environmental problems.