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Probabilities, Planning Failures, and Environmental Law

Environmental laws often mandate specific environmental outcomes and require agencies to adopt plans designed to achieve those outcomes. But because of pervasive uncertainties, agencies are often unsure whether their plans will succeed. That uncertainty creates important dilemmas; decision-makers must decide how to balance risks of plan failure against the costs of possible over-regulation. This article explores and evaluates legal responses to those dilemmas. I find that planning uncertainties recur throughout existing environmental laws and will likely have important consequences for legal responses to climate change. I also find that environmental statutes and regulations use a patchwork of measures to manage these planning uncertainties. Decisions about planning uncertainty are frequently made on an ad-hoc, non-transparent basis, and preferences for plans with low success odds are common. That approach is problematic, for it impedes public participation, increases vulnerability to decision-making biases, and contributes to regulatory dysfunction. I therefore propose procedural and substantive reforms designed to improve the transparency of planning uncertainty management and to reduce the frequency of plan failure.