An Evolutionary Theory of Administrative Law

Southern Methodist University | May 25th, 2018

Law evolves to accommodate change—this is axiomatic in most academic legal traditions. But in the era of the administrative state, with congressional gridlock and a jud

Law evolves to accommodate change—this is axiomatic in most academic legal traditions. But in the era of the administrative state, with congressional gridlock and a judiciary hesitant to address policy questions, evolution of statutory law has become much more difficult. This leads to pent up demand for change in legal regimes. If the legislature and the courts cannot provide an outlet for this pressure, where does it go? How does the law continue to change? Although other scholars have looked to agencies as engines of legal change, we lack a theoretical framework to understand how that change happens. I argue that an evolutionary framework provides an informative framework for understanding administrative legal change. I provide three case studies that demonstrate the administrative evolution of the Endangered Species Act. In spite of tremendous advances in conservation, fundamental changes in scientists’ understanding of human impacts on the natural world, and increasingly strident clashes over private property rights and endangered species, the Act has remained largely unchanged for the last 35 years. In a functioning legislative system, the Act would have been amended to accommodate many of these changes. Instead, the case studies show a mechanism of legal change through agency action analogous to the mechanisms underlying biological evolution. Other commentators have argued the administrative state stymies evolution of the law, but this research contradicts that view. Applying an evolutionary framework to administrative actions creates a new theory of administrative evolution of the law, placing administrative analysis within the long tradition of evolutionary approaches to legal change used by commentators from Aristotle to Holmes. In contrast to traditional normative theories of administrative law, an evolutionary approach focuses on how change progresses over time. This theory of administrative evolution of the law also casts new light on a host of normative questions, from the role of judicial review to improvements in agency decision-making. Considering administrative actions within the broader context of the legal evolution promises a fruitful new approach to analyzing administrative law.

An Implementation Blueprint for Enhancing Groundwater Recharge in the San Fernando Basin

University of Southern California (USC) | December 31st, 2008

The purpose of this report is to analyze the potential of providing ground water recharge in the San Fernando Basin (SFB) using native water, including the identification

The purpose of this report is to analyze the potential of providing ground water recharge in the San Fernando Basin (SFB) using native water, including the identification of strategic plans for the recharge project.

An ongoing shift in Pacific Ocean sea level

American Geophysical Union (AGU) | July 30th, 2016

Based on the satellite altimeter data, sea level off the west coast of the United States has increased over the past 5 years, while sea level in the western tropical Pac

Based on the satellite altimeter data, sea level off the west coast of the United States has increased over the past 5 years, while sea level in the western tropical Pacific has declined. Understanding whether this is a short-term shift or the beginning of a longer-term change in sea level has important implications for coastal planning efforts in the coming decades. Here, we identify and quantify the recent shift in Pacific Ocean sea level, and also seek to describe the variability in a manner consistent with recent descriptions of El Nino-Southern Oscillation (ENSO) and particularly the Pacific Decadal Oscillation (PDO). More specifically, we extract two dominant modes of sea level variability, one related to the biennial oscillation associated with ENSO and the other representative of lower-frequency variability with a strong signal in the northern Pacific. We rely on cyclostationary empirical orthogonal function (CSEOF) analysis along with sea level reconstructions to describe these modes and provide historical context for the recent sea level changes observed in the Pacific. As a result, we find that a shift in sea level has occurred in the Pacific Ocean over the past few years that will likely persist in the coming years, leading to substantially higher sea level off the west coast of the United States and lower sea level in the western tropical Pacific.

Analysis of Groundwater Basin Yield, Upper Santa Clara River Groundwater Basin, East Subbasin, Los Angeles County, California

Castaic Lake Water Agency | August 15th, 2005

This report presents an evaluation of the long-term sustainability of existing groundwater management practices in the Santa Clarita Valley, located in northwestern Los

This report presents an evaluation of the long-term sustainability of existing groundwater management practices in the Santa Clarita Valley, located in northwestern Los Angeles County, California. The groundwater system in the Santa Clarita Valley is identified by the California Department of Water Resources (DWR) as the Santa Clara River Valley Groundwater Basin, East Subbasin (Basin No. 4-4.07) and lies within the DWR-designated Upper Santa Clara River Hydrologic Area. Groundwater in the basin is pumped from a shallow Alluvial Aquifer and deeper groundwater resources that are present in an older, underlying unit called the Saugus Formation. Most groundwater pumping is by the local water purveyors (the Upper Basin Water Purveyors [herein referred to as the Purveyors1]) for municipal uses (in the range of approximately 23,000 to 28,000 acre-feet per year [AF/yr] in recent years), with some continuing pumping by private landowners, primarily for irrigation uses (approximately 15,000 to 16,000 AF/yr in recent years). The Purveyors also have access to other sources of water, including imported State Water Project (SWP) water, groundwater banking outside the basin, recycled water, short-term water exchanges, and dry-year water purchase programs (Luhdorff & Scalmanini Consulting Engineers [LSCE], 2005a). The water management practices of the Purveyors call for maximizing the use of Alluvial Aquifer and imported water during years of normal or above-normal availability of these supplies, and limiting the use of the Saugus Formation during these periods, then temporarily increasing Saugus Formation pumping during years when supplemental imported water supplies are significantly reduced because of drought conditions. The evaluation of the Purveyors’ current groundwater management practices has been performed using a detailed numerical groundwater flow model of the basin. The model, called the Santa Clarita Valley Groundwater Model (Regional Model), simulates the occurrence and flow of groundwater, including its interaction with streams in the area. The Regional Model has been developed for the Purveyors as a tool for the analysis of groundwater management options in the context of future water demands and water supply conditions in the valley. Among the objectives in developing the model were (1) to be able to evaluate the long-term sustainability (yield) of the Alluvial and Saugus aquifer systems under a range of existing and potential future water resource management conditions, and (2) to facilitate general management of water quantity and water quality issues. Figure 1-1 is a map showing the area simulated by the model (tables and figures are located at the end of each section).  

Analysis of Potential Water-Supply Management Options, 2010-60, and Documentation of Revisions to the Model of the Irwin Basin Aquifer System, Fort Irwin National Training Center, California

U.S. Geological Survey (USGS) | October 31st, 2014

The Fort Irwin National Training Center is considering several alternatives to manage their limited water-supply sources in the Irwin Basin. An existing three-dimensional

The Fort Irwin National Training Center is considering several alternatives to manage their limited water-supply sources in the Irwin Basin. An existing three-dimensional, finite-difference groundwater-flow model—the U.S. Geological Survey’s MOD-FLOW—of the aquifer system in the basin was updated and the initial input dataset was supplemented with groundwater withdrawal data for the period 2000–10. The updated model was then used to simulate four combinations, or scenarios, of groundwater withdrawal and recharge over the next 50 years (January 2011 through December 2060). The scenarios included combinations of continuing withdrawals from currently active production wells, supplementing any increases in demand with withdrawals from an inactive production well, reducing withdrawal amounts and rates, and reducing the discharge of treated wastewater to infiltration ponds that provide a recharge source to the underlying aquifer. Results of the simulations indicated that, depending on the scenario implemented, groundwater levels would rise (over the next 50 years) from 40 feet to as much as 65 feet in the northwestern part of the Irwin Basin, and from 5 feet to 10 feet in the southeastern part.

Annual Operating Plan for Colorado River Reservoirs 2021

U.S. Bureau of Reclamation (USBR) | December 9th, 2020

Anticipating drought-related food security changes

Nature Portfolio (Springer Nature) | September 29th, 2022

Food insecurity early warning can provide time to mitigate unfolding crises; however, drought remains a large source of uncertainty. The challenge is to filter unclear or

Food insecurity early warning can provide time to mitigate unfolding crises; however, drought remains a large source of uncertainty. The challenge is to filter unclear or conflicting signals from various climatic and socio-economic variables and link them to food security outcomes. Integrating lag-1 autocorrelation diagnostics into remotely sensed observations from the Soil Moisture Active Passive (SMAP) mission and food prices, we found dramatic improvement in anticipating the timing and intensity of food crises, except in conflict settings. We analysed drought-induced food crises globally in the SMAP record (since 2015; approximately five per year). The change in soil moisture autocorrelation, which we term the Soil Moisture Auto-Regressive Threshold (SMART), signalled an accurate food security transition for all cases studied here (P 

Anticipating Environmental and Environmental-Health Implications of Extreme Storms: ARkStorm Scenario

American Society of Civil Engineers (ASCE) | July 22nd, 2015

The ARkStorm Scenario predicts that a prolonged winter storm event across California would cause extreme precipitation, flooding, winds, physical damages, and e

The ARkStorm Scenario predicts that a prolonged winter storm event across California would cause extreme precipitation, flooding, winds, physical damages, and economic impacts. This study uses a literature review and geographic information system-based analysis of national and state databases to infer how and where ARkStorm could cause environmental damages, release contamination from diverse natural and anthropogenic sources, affect ecosystem and human health, and cause economic impacts from environmental-remediation, liability, and health care costs. Examples of plausible ARkStorm environmental and health concerns include complex mixtures of contaminants such as petroleum, mercury, asbestos, persistent organic pollutants, molds, and pathogens; adverse physical and contamination impacts on riverine and coastal marine ecosystems; and increased incidences of mold-related health concerns, some vector-borne diseases, and valley fever. Coastal cities, the San Francisco Bay area, the Sacramento-San Joaquin River Delta, parts of the Central Valley, and some mountainous areas would likely be most affected. This type of screening analysis, coupled with follow-up local assessments, can help stakeholders in California and disaster-prone areas elsewhere better plan for, mitigate, and respond to future environmental disasters.

Applying the Connectivity Approach: Groundwater management in California's Kings Basin

California Roundtable on Water and Food Supply (CRWFS) | March 27th, 2015

The California Roundtable on Water and Food Supply (CRWFS) studied the processes used in the Kings Groundwater Subbasin (Kings Basin) of California’s San Joaquin Valley

The California Roundtable on Water and Food Supply (CRWFS) studied the processes used in the Kings Groundwater Subbasin (Kings Basin) of California’s San Joaquin Valley to reveal strategies for advancing groundwater sustainability within the context of watershed-scale, integrated water management. This inquiry was guided by the principles of the “connectivity approach”: a framework developed by CRWFS for resource managers, land use planners and policymakers to discover the linkages, strengths, successes, potentials, and disconnects related to their particular resource stewardship issues. A key concept is connected benefits, which refers to achieving multiple benefits across resource and development sectors to respond to California’s increasing water management challenges.

Applying the connectivity approach: Water and food supply projects in California that connect, link, and engage

California Roundtable on Water and Food Supply (CRWFS) | April 11th, 2014

In delving into the connectivity concept and approach, members of the California Roundtable on Water and Food Supply (CRWFS) felt that it was very important to look to ex

In delving into the connectivity concept and approach, members of the California Roundtable on Water and Food Supply (CRWFS) felt that it was very important to look to existing and emerging projects that were already embracing the concepts being discussed. Projects were selected to highlight the three high priority areas for effecting change: connected thinking, institutional linkages, and public engagement. The five examples included in this booklet as case assessments illustrate several ways the connectivity approach is currently being applied throughout California. The assessments are intended to generate ideas for applying the guiding principles of the connectivity approach and the positive impacts that emerge from them. The assessments are not meant to serve as an evaluation of the merit of the projects. This booklet is intended to accompany From Crisis to Connectivity: Renewed Thinking About Managing California’s Water and Food Supply, which more fully describes the connectivity approach illustrated here.