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When does legal flexibility work in environmental law?

  • Author(s): Biber, E
  • Eagle, J
  • et al.

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Environmental law scholars, practitioners, and policymakers have wrestled for some time with the implications of climate change for environmental law. There is widespread, although not universal, agreement that climate change requires greater flexibility in environmental legal systems. Flexibility - reduced procedural requirements for administrative agency decision making and less rigid substantive standards - would allow the agencies that implement environmental law to adapt to a future world characterized by dynamic, uncertain changes in natural resource systems. According to its proponents, flexibility would make it easier for agencies to more frequently update their management or regulatory decisions to respond to changed conditions, and also to facilitate adaptive management. However, there has been little exploration of the conditions under which flexibility improves or undermines the effectiveness of environmental law. This Article examines two areas of environmental law that have historically had a great deal of flexibility: hunting law and marine fisheries law. In both areas, management and regulatory decisions are updated on a regular basis by the relevant agencies, often annually. Procedural requirements for making decisions are often streamlined. And the substantive standards that apply to agency decisions are often quite broad and flexible, leaving substantial discretion to the agency. Yet these two areas of environmental law have experienced very different outcomes in terms of implementation: fisheries management in the United States is often perceived as failing, while hunting law is seen as quite successful in achieving its goals.

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