Craig and Ruhl's Model Adaptive Management Procedures Act: Proposed amendments

I. THE CHALLENGES OF ENCOURAGING ADAPTIVE MANAGEMENT There is now abundant environmental law literature that calls for greater flexibility in the legal system to allow for adaptive management.1 Climate change is one motivator for these calls, though not the only one. But up until this point in time, many of the calls for greater flexibility have been fairly general. However, as good lawyers and legal scholars know, the devil in law is always in the details.2 Crafting specific statutory language (or principles courts can apply in judicial decision making) is essential to the success of any legal reform effort.3 Effective crafting of specific statutory language can make all the difference between success, and failure. Failure can be worse than failure to achieve the proposed reform goals; flawed reform efforts can make outcomes worse than they were before. I am therefore grateful for the recent efforts by Craig and Ruhl to propose specific statutory language to make environmental and natural resources law (and administrative law broadly) more friendly to adaptive management.4 Indeed, Craig and Ruhl have even done us the favor of providing a sample model statute. They have begun a conversation that is important and necessary. My goal here is to provide a thoughtful, substantive response to their initial efforts—a critical but constructive engagement, similar to what might occur in the session of a legislative committee doing a mark-up of a bill.