Making Regulation Evolve: A Case Study in Maladaptive Management


This Article is the first cross-disciplinary, comprehensive assessment of one of the earliest regulatory reinvention programs developed to foster more participation and adaptation in decision-making—the Endangered Species Act’s Habitat Conservation Plan Program. Drawing not only from legal sources but also integrating data from recent scientific studies, interviews, surveys of government officials, newspaper investigations, and unpublished databases, this Article delves into the pioneering but defective HCP program as an example of regulatory innovation gone awry.

In the active literature on regulatory reinvention, many have pointed to the HCP program as a prototype for collaborative, experimentalist innovations in governance. Though a few HCPs processes are promising examples of the value of broad participation and adaptation in regulation, this Article asserts that the HCP program, as implemented, largely allows for the proliferation of bilateral and inert agreements between agencies and developers for evading the ESA’s otherwise strict prohibitions. More fundamentally, the Article suggests that the HCP regulatory experiment is failing because the agencies charged with administering it have never seriously treated it like an experiment. As Congress again contemplates substantial ESA amendments, the Article argues that regulatory programs must themselves be periodically and systematically adapted in order for agencies, Congress and the public at large to learn and adapt from regulatory mistakes and successes. Only by viewing a regulatory program as an experiment, and by addressing the incentives of the agencies and applicants to cultivate participation and regulatory adaptation, can the HCP program—and indeed all regulation—evolve.


Administrative Law | Dispute Resolution and Arbitration | Environmental Law | Natural Resources Law | Public Law and Legal Theory

Date of this Version

August 2006