Adaptive law, between flexibility, legal certainty and environmental justice

Since the planning skepticism of the 1980s, spatial planning law and practice in Northern European countries has been shifting in the direction of more flexible procedures and are less reliance on formal institutional planning. Planning has generally become project led instead of plan led, decentralized, with strong roles for the municipalities and private stakeholders and open to managerial governance structures instead of regulatory/bureaucratic ones. This trend has been characterized and criticized as neo-liberal by various commentators. They highlight that planning has lost its egalitarian angle and embraced a pro-growth agenda, to the detriment of the common good. However, the turn to flexibilization can also be positively evaluated from an ecological perspective embraced by commentators who wish to integrate law within the framework of social-ecological systems. Theorists who work on a notion coined Adaptive Law argue that spatial governance that is less reliant on centralized bureaucratic planning, more experimentalist and less reliant on legal certainty as the core legal value, is more adaptive and fosters social resilience. The reasons given in favour of a more flexible, decentralized legal system are very different. The proponents of adaptive law place eco-system protection at the heart of their proposal while the current trend towards flexibilization seems more driven by a pro growth agenda. Although coming from a different angle and embracing different values, adaptive law also embraces a managerialist style of governance in which specifically legal values like certainty, distributive justice, fairness and equity are not accorded their proper place. This omission poses the risk that adaptive law will become a way to pay ideological lip service to ecological values while embracing an efficiency driven pro-growth agenda in practice. This article proposes to include normative notions of fairness taken from environmental justice within the framework of adaptive to correct the managerial rationality that pervades it. Such notions are the inclusion of the precautionary principle and a variation of John Rawls’ maximin principle: projects proposed and activities to be permitted have to show that the worst off in environmental terms benefit the most from them.