Legal pathways to adaptive governance in water basins in North America and Australia

Abstract

Law dictates the structure, boundaries, rules, and processes within which governmental action takes place and in doing so becomes one of the focal points for analysis of governmental barriers to adaptation as the effects of climate change are felt. Governance encompasses both governmental and nongovernmental participation in collective choice and action. Adaptive governance contemplates a level of flexibility and evolution in governmental action beyond that currently found in the heavily administrative governments in the United States and Australia. Nevertheless, over time, law itself has proven highly adaptive in democracies, evolving to address and even facilitate the emergence of new social norms (such as the rights of women and minorities) or to provide remedies for emerging problems (such as pollution). Thus, law can adapt, evolve, and be reformed to facilitate adaptive governance. In doing so, not only may barriers be removed, but law may be adjusted to facilitate adaptive governance and to aid in institutionalizing new and emerging approaches to governance. The key is to do so in a way that also enhances legitimacy, accountability, and justice (i.e., good governance), or such reforms will never be adopted by democratic societies or, if adopted, will destabilize those very societies. By identifying those aspects of adaptive governance relevant to the legal system, this chapter presents guidelines for evaluating the role of law in environmental governance and demonstrates their use by applying them to the basin studies presented in Part I of this volume.