(This article is Part 1 in a 4 part series on “Resilient Cities and Adaptive Law” by guest columnist Tony Arnold.)
Are cities resilient – or can they become more resilient – in the face of significant and uncertain disturbances that affect interconnected natural, physical, and social systems, such as climate change, water scarcity and/or flooding, land-development pressures, food-supply insecurities, civil unrest, economic collapse, the effects of pests and invasive species, deforestation, and the like? Growing research on resilience science and legal institutions suggests that part of the answer to this question has to involve whether laws and legal systems can become more adaptive to nonlinear change in complex, interconnected systems.
A recent article, “Adaptive Law and Resilience,” published by resilience scientist Lance Gunderson and me in the Environmental Law Reporter from our work on this topic in forthcoming Columbia University Press book (C. Allen & A. S. Garmestani, eds., Social-Ecological Resilience and Law), explores the relationship between social-ecological resilience and law. It suggests a new paradigm, which we call “adaptive law,” to replace features of the legal system that are rigid, ignore interrelationships among social and ecological systems, emphasize front-end prescriptive rules, and generally are ill-equipped to adapt to rapid, unexpected change.
We wrote: “Resilience is the capacity of an ecosystem to withstand disturbance and maintain the same basic processes and structures. If the resilience of an ecosystem degrades sufficiently, the system may cross the threshold that represents the limits of the system.” (p. 10427) This concept is based on scientific research showing that ecosystems can exist in a variety of stable configurations and that social systems and ecosystems are interconnected at multiple scales in complex and dynamic ways that can produce abrupt and unexpected changes. Hurricane Katrina’s impact on the New Orleans area is an often-cited example of the interplay of altered coastal wetlands systems, failed engineered levee systems, inadequate disaster planning and response systems, ill-conceived land-use planning, and socio-economic and political dynamics, among other factors. The figures below demonstrate resilience cycles as a system undergoes disturbances (left) and changes resulting from the interplay of resilience cycles in multiple interconnected systems across scales, a process that scientists have labeled “panarchy” (right).
Source: Lance H. Gunderson & C.S. Holling, eds., Panarchy: Understanding Transformations in Human and Natural Systems 34 (2002).
The U.S. legal system is maladaptive to these dynamics in at least three respects:
1) It seeks to impose and protect stability and certainty in human affairs, often with narrow or singular goals and methods. Think of the role of precedent in judicial decision making or the protection of long-established property rights.
2) U.S. laws are based on assumptions about a globally stable nature, which is at odds with current scientific understandings of natural systems. Think of laws protecting existing populations of endangered species in their existing habitats and locations or basing water-supply planning on historic conditions.
3) Legal processes require up-front prescriptive decision making and treat elements of nature and society in fragmented ways. Think of various kind of environmental, land-use, and water-use permits, each granted by different authorities for long periods of time based on studies and deliberations about conditions and projected impacts of a proposed project, determined at a static point in time, with very little integration or opportunity to adjust the decision over time in response to changing conditions or new knowledge.
In contrast, we propose four features of an adaptive legal system: “1) multiplicity of articulated goals; 2) polycentric, multimodal, and integrationist structure; 3) adaptive methods based on standards, flexibility, discretion, and regard for context; and 4) iterative legal-pluralist processes with feedback loops, learning and accountability.” (p. 10428) For more on the characteristics of adaptive law, see the original article.
This is the first of four blog postings about resilient cities and adaptive law. In the forthcoming three parts to this blog, I will explore three implications of the adaptive law concept that are relevant to cities and their resilience: local governance; private property rights; and adaptation.
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. He has recently been named the Associate Dean for Research and Faculty Development at the University of Louisville’s Brandeis School of Law. He has served as a planning commissioner, member of a task force addressing environmental justice in urban neighborhoods, a land conservation trust board member, and co-chair of the land use, transportation, and urban forestry committee of the Louisville Metropolitan Climate Change Task Force. Here he is pictured with two former law and urban planning students, looking at urban tree canopy planning documents, along the Louisville Loop Trail, a 100-mile trail system that rings the entire city, linking existing and new parks, civic facilities, diverse neighborhoods, and waterways. He can be reached at email@example.com.