The programmatic approach, environmental law on thin ice?

In our pursuit of a sustainable future, environmental law often proves to be static and obstructive. Scientists and governments are therefore looking for more flexible systems that are based on the principles of adaptive management. Adaptive management is a method that is increasingly being put into practice and used in legal systems with the aim of creating more flexibility in regulating complex systems prone to uncertainty. The programmatic approach is considered a textbook example of adaptive management in environmental law. In recent years, the programmatic approach has become popular in the Netherlands as a flexible policy and legal instrument. It seeks to balance economic development with environmental goals and measures, such as improving the air quality or improving the conservation status of Natura 2000 sites. The programmatic approach is characterised by a twofold objective, allowing new economic activitities on the one hand and taking measures to protect the environment on the other hand. The programmatic approach is also aimed at facilitating decision-making and seeks to deregulate and facilitate new activities. However, a programmatic approach can also entail unacceptable environmental risks. This became evident from the Programmatic Approach to Nitrogen case . In our paper we will examine under what conditions a programmatic approach could be compatible with the precautionary principle. In this context, we will focus on the tension between prior scientific certainty as required by the precautionary principle and the role of ex-post monitoring of the effects of the programmatic approach. The precautionary principle is based on the assumption that uncertainty can, and should, be resolved with prior scientific research. But is this approach also appropriate for ontological uncertainty that is inherent in complex systems? In complex systems, like ecosystems, uncertainty is often due to variability in many different factors. These dynamic complex systems are subject to non-linear reactions and unexpected trigger points and are not susceptible to precise prediction. Prior research might not give rise to a sound basis for responsible decisionmaking. Can monitoring and adjustment provide a solution to this problem? Or will this inevitably lead to irreversible harm because of its reactive nature and the inherent limitations on monitoring complex systems? Or is this a false dichotomy and are flexible, adaptive legal systems conceivable that both comply with the precautionary principle while providing meaningful monitoring and timely adjustment?