Adaptive Management and NEPA: How a Nonequilibrium View of Ecosystem Mandates Flexible Regulation

Abstract

Our understanding of ecosystems has drastically changed since the advent of modern environmental law.Initially, ecosystems were thought of as systems in balance that, without human disturbance, would form stable equilibria.The environmental protection laws of the 1970s were enacted during a time when we believed that the exact state of nature to be preserved or reestablished through en vironmental protection could be easily defined.In the last few decades, however, a new understanding of ecosystems has evolved.We now understand ecosystems to be in constant flux from the influences of both natural phenomena and human disturbances.Because ecosystems' responses to disturbances are uncertain, fixed baselines indicating a healthy environment are no longer knowable, and disturbances due to human activity or natural fluxes are not always distinguishable.This new awareness of uncertainty regarding the source and extent of environmental harms calls for a more flexible approach to environmental regulation.One such innovative approach to environmental management is the concept of "adaptive management," which recognizes the utility and necessity of experimentation and flexibility in identifying how complex ecosystems respond to disturbances.This Comment looks at how modern ecological theory has undermined the foundational assumptions of the National En vironmental Policy Act (NEPA), challenging the notion that we can establish fixed baselines to identify an "undisturbed" ecosystem, and explores whether and how adaptive management can work under the existing NEPA structure.

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