Wednesday, October 13, 2021
It may seem an unlikely connection, but while reading Robin Kundis Craig and J.B. Ruhl’s excellent (if depressing!) paper 4° Celsius, I found myself thinking about the Disney movie Frozen II. Frozen II presents a parable about climate change through the story of a young queen named Elsa leading her country during a period of rapid change in the natural environment. Amidst rapid changes and uncertain circumstances, Elsa’s governance approach becomes “do the next right thing.” Like the characters in the film, we find ourselves in a time of deep unknowns, where there are no predictable or “correct” answers. Conditions are changing and evolving more quickly than Congress or agencies can regulate. Forecasting is complicated; creating political will is near-impossible. Yet, the effects of climate change necessitate ex post responses. Responding to droughts, wildfires, hurricanes, and floods inherently relies on small groups of people working together in localized ways. Fortunately, the tool of stakeholder collaborations can fill this void between the lack of agency knowledge and preparation and the urgent local demands of disaster reponse, providing an important, yet overlooked, piece to effective climate change response.
Stakeholder collaborations are small groups of people working cooperatively in an ongoing way to guide agency land and resource management decisions. In 2017, the Administrative Conference of the United States (ACUS) hired me as an academic consultant to create a longitudinal overview of the use of collaborations by thirteen federal land and resource management agencies. The resulting report showed that thousands of stakeholder collaborations exist, a level of governance that merges localized considerations with federal agency action which is largely unexplored in administrative law scholarship. Subsequent work explored the doctrinal questions surrounding collaboration and ways that collaborations can be used to improve representation in federal agency decision-making, highlighting the benefits and downsides of this tool.
Most vitally to considering Craig and Ruhl’s thought-provoking paper, the ACUS research revealed that much agency action in climate change response and mitigation is happening through federal land and management agencies engaging in collaboration. This is good news. Agencies are experts in using collaborations; courts are good at assessing them. We have a hidden tool in our belt, one developed before it was so crucially needed.
In the future, I plan to write a paper outlining how stakeholder collaborations are vital to the kind of adaptive response for which Robin and JB advocate. For now, I sketch three brief lessons drawn from years of studying stakeholder collaborations.
First, it is time to let go of baselines and instead embrace values of ecological responsibility. In a changing climate, we will expend ever-increasing amounts of resources if we work towards the goal of preserving a rapidly shifting natural world. Our focus should shift from preservation to building and maintaining rich natural environments—albeit with the understanding that they may look different than the environments of the past. It may help to look to traditional ecological knowledge embedded in Indigenous conceptions of nature (which are many and varied) to understand the earth as a living thing—forever changing—while also understanding that our obligations to act responsibly toward the natural world are fixed.
Second, the present degree of polarization must end—our survival depends on it. As the parents sitting in the theater know, there is little to be gained from fights over who started a conflict or who did what to whom. Instead, maintaining functioning and healthy families requires adopting skills of healthy communication in which all participants can respectfully express their opinions and reach negotiated outcomes. National politics are not so different. Stakeholder collaborations force those with strongly held but conflicting objectives to negotiate, shifting from he-said, she-said to an adult conversation—kind, firm, fair, compassionate, and willing to find a middle ground.
Third, we must be bold and welcoming of new and unconventional ideas, which means pursuing and valuing diverse ideas and perspectives. We need new approaches. I believe that marginalized members of society—those most absent from academic discourse and positions of federal policymaking—hold the insights that are key to our collective survival. For example, the use of traditional ecological knowledge to restore fire to the forested Northern California landscape or manage caribou herds in Alaska combines Indigenous land management practices with agency action. Stakeholder collaborations are a way to radically democratize environmental decision-making and incorporate more diverse perspectives, which are sorely needed.
Frozen II taught millions of American children a lesson, which adults need to learn too. In problems, rest opportunities. Climate change is an invitation to redefine and better articulate our values—those towards the environment, one another, and marginalized communities. Values guide actions amidst rapidly changing circumstances and deep uncertainty. Stakeholder collaborations are a forum for doing so while producing desperately needed adaptive governance. They are the way we can continue to—one step ahead of another—do the next right thing.
- Karen Bradshaw, Professor of Law and Mary Sigler Fellow, Arizona State University, Sandra Day O'Connor College of Law.