Designing Administrative Law for Adaptive Management
Administrative law needs to adapt to adaptive management. Adaptive management is a structured decisionmaking method, the core of which is a multistep, iterative process for adjusting management measures to changing circumstances or new information about the effectiveness of prior measures or the system being managed. It has been identified as a necessary or best- practices component of regulation in a broad range of fields, including drug and medical-device warnings, financial system regulation, social welfare programs, and natural resources management. Nevertheless, many of the agency decisions advancing these policies remain subject to the requirements of either the federal Administrative Procedure Act or the states’ parallel statutes. Adaptive management theorists have identified several features of such administrative law requirements—especially public participation, judicial review, and finality—as posing barriers to true adaptive management, but they have put forward no proposals for reform.
This Article represents the first effort in adaptive management theory to go beyond complaining about the handcuffs administrative law puts on adaptive management and to suggest a solution. The Article begins by explaining the theory and limits of adaptive management to emphasize that it is not appropriate for all, or even most, agency decisionmaking. For appropriate applications, however, we argue that conventional administrative law has unnecessarily shackled effective use of adaptive management. We show that through a specialized “adaptive management track” of administrative procedures, the core values of administrative law can be implemented in ways that much better allow for adaptive management. Going further, we propose and explain draft model legislation that would create such a track for the specific types of agency decisionmaking that could benefit from adaptive management.