Climate change has induced an ecological crisis necessitating reconsideration of how the law should manage human interactions with ecological systems. In most Western legal regimes, conservation policy has principally sought to advance historical or natural preservation or sustained yield objectives, while many laws governing biotechnologies focus on minimising exposure to ‘natural’ systems. Meanwhile, Western public processes are largely built on a legal framework that assumes comprehensive rationality at the front end of decision-making. Lastly, prevailing public conservation governance is fragmented, save the limited attempts to consolidate or coordinate decentralised, independent, and/or overlapping authority. The increasingly convulsive effects of climate change and developments in biotechnology bring to stark relief the limitations of prevailing Western public conservation goals, processes, and institutional design. First, promoting biodiversity may require fundamental changes in management to focus on increasing ecological health and other values than consumption, historical fidelity, and nonintervention. Second, integration of adaptive and inclusive processes is imperative for promoting both effective management strategies and learning in the face of unprecedented change. Third, policymakers must appreciate the tradeoffs of allocating authority across the array of institutional structures, and tailor not only the scale of interventions but also the extent of overlap and coordination of authority.

In recent years, regulation scholars and policymakers have increasingly turned their attention to the role of inter-governmental organizational design in effective governance. The existing literature on regulatory design has provided important insights into the advantages and disadvantages of alternative structural options. This article synthesizes and builds on that literature by describing a novel framework for characterizing, analyzing, and structuring authority across public institutions. Drawing on examples from a range of jurisdictions, it highlights the value of this framework in identifying the values tradeoffs that should drive policymakers' decisions to choose among competing structural alternatives. The framework is founded on two important points. First, inter-governmental allocations of authority can be structured along three different dimensions. Failing to appreciate the existence of, and differences among, these dimensions can prompt misassessments of the reasons for existing regulatory failures and selection of structural allocations that do not suit the problems intended to be addressed. Second, allocations of authority can, and in many cases should, vary for disparate governmental functions. Differential functional allocations of authority can minimize obstacles to needed structural reforms and tailor inter-governmental relations in ways that best promote chosen regulatory values, such as efficiency, effectiveness, and accountability, as well as how allocational choices may and perhaps should vary depending on the governmental function being performed. Finally, the article suggests how future regulation and governance scholarship can harness this emerging framework to help build a body of empirical evidence upon which policymakers can draw in future regulatory design endeavors.

Requirements for the protection or restriction of species are based on regulatory classifications such as “native” or “invasive,” which become anachronistic when climate change drives species outside of their historical geographic range. Furthermore, such regulatory classifications are inconsistent across the patchwork of land ownership that species must traverse as they move between jurisdictions or when transported by humans, which obstructs effective regional management. We surveyed the U.S. laws and regulations relevant to species movement and found that the immigration of species to new jurisdictions makes paradoxical existing regulatory language that sets the categories of species deserving protection or removal. Climate change is universal and progressing rapidly, which provides a shrinking window to reconcile regulatory language originally developed for a static environment.

The creation of new administrative agencies and the realignment of existing governmental authority are commonplace and high-stakes events, as illustrated by the recent creation of the Department of Homeland Security after 9/11 and of new financial regulatory agencies after the global recession of 2009. Scholars and policymakers have not devoted sufficient attention to this subject, failing to clearly identify the different dimensions along which government authority may be structured or to consider the relationships among them. Analysis of these institutional design issues typically also gives short shrift to whether authority should be allocated differently based on agency function. These failures have contributed to reorganization efforts that have proven ill-suited to achieving policymakers' goals due to mismatches between the perceived defects of existing structures and the allocations of authority chosen to replace them. This Article introduces a framework for assessing how governmental authority may be structured along three dimensions: centralization, overlap, and coordination. Using examples from diverse policy areas including national security, financial markets, and environmental protection, it demonstrates how differentiating among these dimensions and among particular governmental functions better illuminates the advantages and disadvantages of available structural options. Though recognizing that the optimal allocation of authority is inexorably context-specific, the Article concludes with preliminary observations about how certain allocations of authority are likely to better promote certain important policy objectives than others.