Adaptive Law and Resilience

Abstract

Environmental law is under intense pressure to develop an adaptive framework. According to resilience sci- ence, interconnected ecological and social systems are dynamic, complex, and subject to abrupt and unpre- dictable change. In contrast, environmental law’s foundations assume that nature is relatively stable, changing primarily in linear patterns within a range of predictable conditions. Moreover, the U.S. legal system aims to create certainty and security in the distribution of resources, favors top-down “panacea” or “optimal instrument” solutions to problems, and uses linear processes. These features of U.S. environmental law are maladaptive, making it ill-suited for emerging environmental challenges. Improving the adaptive capacity of environmental law will require the devel- opment of overarching systemic principles that main- tain the resilience and adaptive capacity of ecological and social systems, not merely the occasional use of specific adaptive methods.