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Adaptive Law and Resilience

May 2013

Citation: 43 ELR 10426

Issue: 5

Author: Craig Anthony (Tony) Arnold and Lance H. Gunderson

Environmental law is under intense pressure to develop an adaptive framework. According to resilience science, interconnected ecological and social systems are dynamic, complex, and subject to abrupt and unpredictable 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 development of overarching systemic principles that maintain the resilience and adaptive capacity of ecological and social systems, not merely the occasional use of specific adaptive methods.

Craig Anthony (Tony) Arnold is the Boehl Chair in Property and Land Use, Professor of Law, Affiliated Professor of Urban Planning, and Chair of the Center for Land Use and
Environmental Responsibility, University of Louisville. Lance H. Gunderson is Professor of Environmental Studies, Emory University, and Beijer Fellow, Beijer International Institute for Ecological Economics, Swedish Royal Academy of Sciences.

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