Institutional learning and regulatory evolution

Background/Question/Methods

Integrating evolution into policy could mean any number of things. For purposes of this symposium, I take it to refer to the need for environmental policy to recognize and respond to the dynamic nature of nature. That’s a more difficult task than it might at first appear. Evolution is a process of unpredictable change over time. Accommodating it requires that policy choices, and perhaps even policy institutions, themselves change over time. Regulatory change inevitably faces barriers. The most important is simply the power of the status quo. Well-known cognitive biases reinforce that power, as does the fact that it is often easier to identify those who will be harmed by change than those who will benefit. It may also seem unfair to change rules people have relied upon in making financial or emotional investments. Change may be resisted because it threatens to re-open political wounds and prolong conflict. It may be constrained by physical and institutional limitations. Trying to match regulatory strategies to changes in the natural world adds additional challenges. It can be difficult to identify the point at which change is justified, or to identify new regulatory targets with sufficient clarity. Using examples ranging from implementation of the Endangered Species Act to application of the Clean Air Act to greenhouse gas emissions to efforts to update property doctrines in response to global warming, this presentation outlines some of the barriers to legal change and ways they have been or might be addressed.

Results/Conclusions

Those seeking policy evolution should not be surprised if it turns out to be a slow and difficult process. They must be sensitive to path dependence, cognizant of the reasons for resistance to change and mindful that some forms of policy change may be more difficult than others. While creating a new regulatory framework from scratch might best address the problem, in some cases it may not be feasible. In some cases, the choice may be between no change and a partial regulatory fix based on tweaking an existing framework. Finally, scientists and advocates should understand the need to make the broader public aware of the dynamic qualities of nature, and of the connections between evolutionary change and environmental policy goals. Policy problems are necessarily political problems, and political victory requires persuading a majority of the public.