Elisabeth Long and Eric Biber,
The Wilderness Act and Climate Change Adaptation, 44
Available at: http://scholarship.law.berkeley.edu/facpubs/2390
Resource managers, scientists, and legal scholars have struggled with the question of how to adapt natural resources law and policy to the future of climate change. A common proposal has been that rigid legal restrictions may need to be made more flexible to allow for dynamic, active management that responds to climate change. But how rigid is natural resources law, and is flexibility really needed?
We explore these questions by looking at the Wilderness Act, by reputation one of the most rigid natural resource laws on the books. Climate change effects will not stop at federal wilderness area boundary signs, and in response there have been specific calls to make the Act more flexible to allow for climate change adaptation. The fiftieth anniversary of the Act, which established a strong presumption that hands-off management is the best choice for wilderness areas, provides us with a timely opportunity to consider the question of how well existing environmental and natural resources law can provide for climate change adaptation
We survey the range of proposals developed by scientists and managers to respond to climate change in forested wilderness ecosystems—including both active and passive management. We then compare that list of proposals with the range of management choices that might plausibly be allowed under the Act, as determined by the statutory text, agency policies and regulations, and relevant case law
Our conclusions may surprise some readers. Despite the Wilderness Act’s reputation as an inflexible law, it is not an absolute prohibition on active management for climate change adaptation. Rather, the vast majority of management options are available to agencies that manage wilderness areas, though the agency must jump through a variety of procedural and substantive hoops to justify active management for climate change adaptation
To be sure, these procedural and substantive hurdles place a thumb on the scale in favor of restraint and passive management. While advocates for more aggressive active management might believe that these costs and constraints are not worth it, we disagree. The thumb on the scale in favor of restraint may be particularly important given the uncertainty about what kinds of active management techniques might be effective, the possible negative effects of active management on other resources, and the political and bureaucratic pressures that might otherwise lead to the overuse of active management in response to climate change. At the same time, our analysis shows that the Act allows for responses in situations where we are more certain that actions will be effective and the benefits of active management are worth the costs.