Decision-making triggers, adaptive management, and natural resources law and planning

This Article examines the use of decision-making triggers in adaptive management plans focused on federal lands and fish and wildlife management. Triggers are pre-negotiated commitments made by an agency within an adaptive management or mitigation framework specifying what actions will be taken if monitoring information shows x or y. The Article begins by placing adaptive management in its complicated political and legal context. Particular attention is paid to how adaptive management and triggers fit into NEPA decision-making and can be used to meet substantive environmental legal standards. We then describe six cases where triggers are being used in adaptive management and mitigation planning and outline the political and legal challenges to their implementation. Several key findings emerge from our research. Rather than adaptive management, the terms adaptive mitigation and/or contingency planning are more accurate ways to describe the case studies reviewed. Another dominant theme is the limited enforceability of monitoring commitments and triggered mitigation actions. Enforceability is contingent upon several factors, but agencies can design triggers so that they are meaningful, enforceable and promote learning. Triggers also bring to the fore a number of long-standing scientific and political considerations about monitoring. The most difficult question about triggers is where to set them. Some interests want triggers to be used in a more precautionary way in order to acknowledge diminished ecological baselines and to prevent the crossing of ecological and regulatory thresholds. We finish with recommendations. Though not without challenges, well-designed triggers can be used as a way to improve implementation of adaptive management while ensuring greater political accountability.