AM and the courts

No study has comprehensively explored and extracted lessons from what likely matters significantly to the natural resource agencies practicing adaptive management—how is it faring in the courts?

This is how Ruhl and Fischmann kick off their 2010 article in Minnesota Law Review on Adaptive management in the courts. They give a brief introduction into the theory of AM, focusing pretty much exclusively on the historical source of the "Experimental Resilience" school. They then give a very useful review of the regulations and agencies that at least purport to use AM. I was surprised to find out that the USACE requires adaptive management as part of the 404 permitting process. However, they conclude that agency implementation of AM "... has descended into a vague promise of future adjustments without clear standards." They do speak relatively highly of the Department of Interior's technical guide, but even that is regarded as an inadequate and vague standard. Ouch.
They then searched for court cases that involved adaptive management in some form. As of May 2010, they found "...thirty-one federal court decisions do grapple with the legality of adaptive management." However, they also found that "[t]he United States lost more than half of these cases, a poor record given the deference accorded to agencies under administrative law." OUCH. They take great care to point out that the courts seem really interested in AM, but generally find it lacking, particularly in meeting "substantive legal criteria". In addition, they point out that just because an agency wins a court case involving AM doesn't imply that the AM plan in question is good. All it means is that the court couldn't find any violations of substantive legal requirements.
The biggest problem they find is a disconnect between the "predict decide implement" model assumed by administrative law, in particular the National Environmental Protection Act, and the iterative model underlying AM. Ruhl and Fischmann describe AM as "twiddling a dial", while NEPA and administrative law require "throwing a switch". I like this imagery. In the end they conclude that as long as the dial twiddling process is well described prior to throwing the switch, AM is compatible with administrative law. The key is specificity: "...[t]he lessons for an agency embarking on a/m-lite require it to restrain its enthusiasm for discretion: the plan must be as detailed as practical."
For example, in the Missouri River AM plan for restoring emergent sandbar habitat, the possible range of restoration actions are laid out quite explicitly as alternatives in the Programmatic Environmental Impact Statement, where each alternative represents a different targeted level of emergent sandbar habitat on the system. In addition, the AM strategy specifies how often recommendations will be made to shift to different habitat targets (see pg. 24). It does not specify the degree of certainty for not meeting a target before the shift will be recommended. I tried, is all I can say! The whole ESH PEIS is a good example of the strategy of "tiering" site specific projects off of a programmatic EIS that is recommended by Ruhl and Fischmann.
This specificity is also the cure to another problem Ruhl and Fischmann raise about getting buy in from the public and regulated interests. "Private regulated interests have expressed concerns about the capacity of adaptive management to add continually to the conditions imposed by resource development authorizations
without the security of finality." Specificity in the plan at least limits the scope of AM adaptation that can be carried out without additional public input.
They have some points for Congress too. An interesting idea is that the appropriations process should be modified to allow purchase of annuities that would provide funding guarantees over longer spans of time. In addition, "Congress should explicitly require adaptive management plans to (1) clearly articulate measurable goals, (2) identify testable hypotheses (or some other method of structured learning from conceptual models), and (3) state exactly what criteria should apply in evaluating the management experiments." Other than feeling a bit of distaste towards the idea that experiments should be required, I think these things would be great. They conclude however, that "adaptive management in practice would remain a somewhat grotesque hybrid of conservation policy’s complexity theory and modern administrative law’s approach
to pluralism and finality." I like the idea of a grotesque hybrid - I want to use that phrase in a paper sometime.
At the end they sort of go a bit off the rails on the benefit of AM to climate change policy, but leaving that aside I like their conclusion:

Our assessment of adaptive management in the courts suggests there is a good model in place. If agencies follow it and courts enforce it faithfully, it may serve as a potent component of climate change policy notwithstanding its flaws.