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Vanderbilt Law Review

First Page

1585

Abstract

This Article deconstructs the substantive, procedural, and structural components of public governance in the United States to explain how the existing legal infrastructure lacks the legal adaptive capacity to manage the wickedness of biodiversity loss. That is, particularly in the context of global anthropogenic climate change, the substantive goals and tools of public action, the processes used by governmental institutions to advance such goals and implement such tools, and the structure of allocated authority among public institutions have been devised in ways that make biodiversity loss virtually impossible to tackle meaningfully.

First, the substantive goals of natural resources law are not primarily directed at promoting biodiversity or broader notions of ecological health. Indeed, the range of tools conventionally employed for achieving such regulatory goals are primarily directed at one of several objectives that, at best, have only indirectly been aimed at promoting some version of biodiversity: minimizing direct human harm or other interventions, maintaining historical conditions, or maximizing resource yield. The few more recent interventions that are better directed at promoting ecological health remain rare and inadequate. As a result, it would be misleading to state that we have even attempted to address the biodiversity crisis through governance in any meaningful way.

Second, public biodiversity governance lacks procedural legal adaptive capacity. The conventional regulatory and management processes adopted for advancing prevailing natural resource goals and for deciding when and how to employ such strategies are insufficiently tethered to managing both the uncertainties and the dynamics accompanying ecological phenomena. Significant opportunities remain for adapting biodiversity governance to be better directed at promoting learning, reducing uncertainty, and adjusting strategies as ecological conditions shift and managers gain information.

Third, the configuration of authority among institutional actors charged with implementing natural resources law remains underexplored and deficient. There has been insufficient attention directed at parsing and adjusting the structure of governance. Unfortunately, authority over natural resources management and regulation has remained largely fragmented into many decentralized, overlapping, and poorly coordinated institutions. Tailored alterations to the allocation of authority over natural resources can leverage key advantages of centralized and/or coordinated institutions while maintaining the largely decentralized, independent, and overlapping character of public biodiversity governance.

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