In this article, Wiersema argues that contemporary approaches to environmental regulation — ecosystem management under a “new governance” model — while admirable in their recognition of the short-comings of previous regulatory regimes, suffer from an absence of substantive goals established by law, and she proposes a framework for reintroducing this substantive component.

The article begins by surveying and explaining a very substantial literature that “advocates and describes shifts in regulatory patterns away from so-called command and control, centralized approaches to regulation, to more flexible, less hierarchical approaches, with a strong emphasis on collaboration and a mix of private and public actors.” Especially, though certainly not exclusively, in environmental law, the complexity and uncertainty in the subject of regulation require adaptive regulation methods that allow flexibility, experimentation, and constant input from many stakeholders.

The article then engages in close examination of two such “new” regulatory frameworks, the Chesapeake Bay Program and the Ramsar Convention on Wetlands. The article finds that a lack of substantive goals established by law has left outcomes in the former case unduly subject to the vicissitudes of short-term political circumstances and, in the latter case, to replacement of an original purpose of long-term environmental protection with other short-term priorities.

Rather than return to the approach of goal-setting at the highest level of legislation — which has tended to prove too broadly vague at best and irrelevant or wrong at worst — Wiersema proposes a “middle ground” that would involve a “process for generating specific goals that would include multiple stakeholders in a collaborative process, while requiring them to consider a specific value of long-term protection in their development of these goals.” She explains how this process might work in her specific case studies and explains that “where there are success stories, they may frequently be driven by a legal mandate that is specific enough to guide the flexible activity that is being advocated.”

Wiersema’s article proposes an important adjustment in the evolution of regulation in a field of great current interest.

• June, 2012
• May, 2012
• April, 2012
• March, 2012
• January, 2012
• December, 2011
• November, 2011
• October, 2011
• September, 2011
• July, 2011
• April, 2011
• February, 2011
• January, 2011
• December, 2010
• November, 2010
• October, 2010
• September, 2010
• August, 2010
• July, 2010
• June, 2010
• May, 2010
• April, 2010
• March, 2010
• February, 2010
• January, 2010

• December, 2009
• November, 2009
• October, 2009
• September, 2009
• August, 2009
• July, 2009
• June, 2009
• May, 2009
• April, 2009
• March, 2009
• February, 2009
• January, 2009