By Alyson C. Flournoy, David M. Driesen
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Additional resources for Beyond Environmental Law: Policy Proposals for a Better Environmental Future
An agency could trigger the exception provision by demonstrating in the rule-making record by clear and convincing evidence that either prong of the exception is met as to a particular resource or value. If it did so, the statutory mandate for preserving the resource or value would be modified to the extent the evidence warrants and the agency could lawfully promulgate rules that deviated from the statutory mandate to that extent. In that case, agency rules that deviated from the statutory mandate in sections 1 and 3 would be in compliance with the Act under the exception.
Section 8 – Ecosystem Resilience Assessment: Should preenactment human conduct or non-human-induced changes cause significant degradation or depletion to a legacy resource, the agency should be required to perform a resilience assessment to determine whether the ecosystem retains the capacity to persist in light of the degradation or depletion. If the ecosystem can persist, the agency should be required to modify its legacy plan as needed to promote the continued resilience of the system. In cases where the system can no longer persist and has flipped to a new behavior regime, the question of whether to attempt to restore the system or to seek to promote the resilience of the new regime should be addressed by the stewardship agency following public comment.
S. Holling, Resilience and Stability of Ecological Systems, 4 Ann. Rev. Ecology & Systematics 1 (1973). It describes the degree of disturbance a system can tolerate before it flips into another behavior regime. Lance Gunderson, Resilience, Flexibility and Adaptive Management: Antidotes for Spurious Certitude?
Beyond Environmental Law: Policy Proposals for a Better Environmental Future by Alyson C. Flournoy, David M. Driesen