Adaptivity,resilience and justice for all. A confrontation between adaptive planning law and environmental justice

Abstract

Adaptive management approaches are attracting attention in spatial and environmental policy. These approaches require planning law that stimulates flexible, participatory, and network-oriented procedures based on scientific input and cyclical processes. In this article, the recently promulgated Dutch Environmental Planning Act is assessed using frameworks of adaptive law and environmental justice. The argument is made that the new Act conforms to many of the characteristics of adaptive law, but facilitates a neoliberal spatial planning regime. The case illustrates how adaptive law can become a facilitator of neoliberal planning practices due to insufficient attention to concerns of justice. Incorporating justice concerns into adaptive law and planning would benefit resilience and increase their transformative potential.

Keywords

adaptive law adaptive planning Environment and Planning Act environmental justice resilience theory

Introduction

In response to the environmental crisis, and inspired by systems- and complexity theory, system theorists, ecologists, planners, and lawyers have proposed governance approaches based on the notion of resilience and adaptivity for various environmental and spatial domains (Cosens and Gunderson, 2018; Folke et al., 2005; Van Buuren et al., 2013; Walker et al., 2002). These approaches aim to enhance the resilience of social-ecological systems (Ostrom, 2009) and to protect them through a networked, experimentalist, and participatory approach. In the literature on planning, the concepts of adaptivity, resilience, and complexity are drawing increasing attention (Davoudi, 2021; De Roo et al., 2020; Eraydin and Tasan-Kok, 2013; Kato and Ahern, 2008; Rauws, 2017). Skrimizea et al. (2018) even speak of a ‘complexity turn’ in planning, and they recommend an adaptive approach to this complexity.

Adaptive approaches need to be grounded in law to be appropriately implemented (Cosens et al., 2017; Ruhl and Craig, 2014; Ruhl et al., 2017). In European environmental law, the best-known example of adaptive legislation is the EU Water Quality Framework Directive (Soininen and Platjouw, 2018). Other pieces of legislation that aim to further adaptive governance are the Climate Law and the Nature Restoration Law (Grabbe et al., 2025).

At the national level, the new Dutch Environment and Planning Act (DEPA), which entered into force in 2024, may be considered an example of the integration of adaptive governance into law. The DEPA has met with mixed reviews. Some commentators believe that it may contribute to realizing a sustainable future (Dieperink and Karens, 2023; Van ‘t Foort and Kevelam, 2015), while others suspect it is a continuation of a neoliberal policy philosophy (Schlössels, 2021; Tasan Kok, 2019). The mixed assessments of the new Act form the inspiration for this article.

The analysis of the DEPA undertaken in this article displays how an Act that incorporates many aspects of adaptive law may nonetheless facilitate a neoliberal planning system. This analysis contributes to the theories of adaptive law and adaptive planning by showing that they hold assumptions that make them vulnerable to co-optation by neoliberal planning practices. Neoliberal planning is implicated in increased territorial fragmentation, marketisation, displacement of low-income groups, and rising inequality (Baeten, 2017; Ferm and Raco, 2020; Peck et al., 2009). These tendencies are not conducive to resilience, understood as the capacity to seize opportunities for social transformation. This article uses the lenses of adaptive law and environmental justice to analyse the DEPA and to theorize that resilience may be strengthened by integrating equity, recognition, participatory justice, and a capabilities approach into adaptive law and planning.

The following section situates adaptivity theory and environmental justice within planning debates. The third section describes the adaptive law and environmental justice frameworks. In section four, the DEPA is analysed to identify how elements of adaptive law have been incorporated into the law and policy of a legal planning system that has just undergone a major update. Subsequently, the Act is critically examined through the lens of environmental justice. The final section discusses whether adaptive law is conducive to neoliberal planning and whether the inclusion of elements of environmental justice would strengthen resilience. If so, the case is made that justice concerns need to be taken into account more strongly in adaptive law and planning.

Theoretical grounding: Adaptive law, environmental justice, and planning

Three strands of literature are brought into conversation in this article: literature on adaptive law, (adaptive) planning, and environmental justice. The literature on adaptive law is distinct from, but partly overlaps with, the literature on adaptive governance and adaptive management. A definition of adaptive management found in the literature is that ‘Adaptive management emphasizes learning and uses structured experimentation in combination with flexibility as ways to achieve this’ (Huitema et al., 2009). Folke et al. (2005: 444) consider the difference between adaptive management and adaptive governance to be the expansion of focus from management concerns to the creation of institutional conditions to make adaptive management possible. Adaptive law is a specific type of adaptive governance, namely, governance by law. The specific legal form of adaptive governance is explored by Arnold and Gunderson (2013), Cosens et al. (2017), Ruhl and Craig (2014), and, in Europe, Niko Soininen et al. (2023).

Among planners who have addressed the nexus of complexity, adaptive planning, and justice, the work of Eirini Skrimizea and Ward Rauws should be noted. In a comprehensive research project on sustainable agriculture transformations, Skrimizea et al. (2020) show how agonistic conflict (Mouffe, 2000) can facilitate social learning processes. She stresses the need to empower local farmers in a process of conflict transformation. Empowering is not only important from the perspective of social justice, but it can also lead to the emergence of new agents of change, who can challenge dominant pathways and narratives, leading to the revaluation of local knowledge, more equality in power relations, and eventually more balanced outcomes in struggles towards agricultural transformations (Skrimizea et al., 2020).

Ward Rauws also explores the ramifications of introducing a complexity perspective in planning and focuses on the city as a complex adaptive system, characterized by self-organization and unpredictability (Rauws, 2017). He focuses on capacity building and on various dilemmas in the context of the situation in the Netherlands, which highlight the need to support processes of self-organisation and joint learning (Rauws and De Roo, 2016).

In general planning literature, justice has been given extensive treatment from a variety of perspectives. After a surge in popularity of a communicative approach to planning (Allmendinger and Tewdwr Jones, 2002; Healey, 1996), Susan Fainstein puts questions of justice entirely in the spotlight with her book ‘The Just City’ (2010). She recognizes equity, diversity, and participation as necessary components of a just city. Contrary to the communicative approach, she argues for substantive, outcome-oriented principles of justice.

Stefano Moroni offers an institutions-centred, Rawlsian-inspired view of justice. He proposes that institutions are just when no arbitrary distinction is drawn among individuals in the recognition of fundamental duties and rights, and when public rules define a proper balance among competing claims (Moroni, 2020: 259). A condition of procedural ‘background justice’ (Moroni, 2023: 407) should be created in which fair and agreed-upon procedures for distribution are in place.

In this article the environmental justice (EJ) approach, as discussed by David Schlosberg (2007), is chosen over these more common approaches to justice for several reasons. EJ literature stresses the need for individuals to be rooted within a particular environment and generally takes the community as a point of departure. Community is conceived of as a place-based collective, formed through shared experience, and mobilization around shared concerns (Agyeman et al., 2016: 332/333). While many of EJ’s tenets conform to the Feinsteinian conception of the just city, Fainstein subsumes deep-seated historical power inequalities between social groups under the general header of ‘diversity’. She appears to hold sceptical views of identity politics, viewing it as ‘divisive’ and, according to Song (2014: 155/156), considers ethnic diversity as an end in itself. EJ theorists would agree with Libby Porter that recognising histories of dispossession is not solely achieved by granting rights to certain primary goods or rights to participate (Porter, 2024). The struggle over recognition is central to the EJ approach.

The environmental justice approach expands on the theories discussed above by advocating for a community-oriented capabilities approach to justice. A community-based capabilities approach, such as the one put forward by Schlosberg, aligns well with thinking in terms of resilience and adaptivity. It focuses on social systems that transcend the individual level and, like the notion of resilience, emphasizes the need to expand people’s functionings (Doorn et al., 2019: 120).

The frameworks of adaptive law and environmental justice

This section outlines the two main frameworks against which the DEPA will be assessed, the framework of adaptive law and that of environmental justice. In the following subsection adaptive law is treated, while subsequently the environmental justice framework is presented.

Adaptive law

To govern complex social-ecological systems effectively, stakeholder participation, institutional learning, decentralised management, and the ability to respond quickly to new knowledge and insights into the system’s behaviour are essential (Walker et al., 2002). Adaptive law aims to facilitate such management by integrating these components into law. It represents a new regulatory style (Westerman, 2018) that includes an experimentalist and circular decision-making process, with a strong emphasis on monitoring, evaluation, and adaptation. In addition, nimbleness and flexibility in decision-making are required to adapt plans to new environmental conditions and scientific insights. The characteristics of adaptive law are outlined in the table below, which is based on the model by Arnold and Gunderson (2013: 10429) but includes elements from the authors previously mentioned.

Arnold and Gunderson divide the law into four different aspects: goals, structure, methods, and processes. It is questionable whether strict boundaries can be drawn between these aspects, but clearly demarcating different topics lends clarity to the analysis, so, for analytical purposes, the division will be used in this article as well.

Goals

Adaptive law is goal-oriented, meaning that the regulation’s objectives are stipulated upfront. The idea is that reaching a certain quality or standard is essential, but how that standard is achieved should be left to the addressees of the norm. A central assumption of adaptive management is that social and ecological systems are integrated, with no clear division between them. This means that goals must focus on the integrated protection of ecological and social systems, emphasising the need to balance social needs with ecological protection (Arnold and Gunderson, 2013: 10429).

Structure

Structurally, adaptive law is polycentric, decentralised, and requires a high degree of autonomy for local administrative bodies. Adaptive decentralisation also involves embedding decision-making within networks of stakeholders, including the private sector, citizens, and scientists. Moreover, frequent communication must be maintained throughout different layers of the administration, while stakeholders should be involved through participatory mechanisms.

To increase the resilience of networked systems, Cosens et al. (2017) propose an integrated structure of administrative governance in which representatives of lower administrative units are represented in higher branches of government. They also suggest that scientific expertise, including indigenous and local knowledge, should be present in decision-making (Cosens et al., 2017).

Methods

In terms of decision-making methods, flexibility is emphasised within the context of relatively stable management plans and programmatic approaches (Ruhl and Craig, 2014; Van Buuren et al., 2013). Plans should be drawn up that leave space to fill in details, but set clear standards that must be reached. Stakeholder and scientist participation should be ensured. Within these frameworks, administrative agencies should have significant discretion. Such plans contribute to dialogue and consensus-building, facilitate public engagement, and increase the legitimacy of decision-making (Cosens et al., 2017; Walker et al., 2002).

The traditionally firm legal entrenchment of property rights can frustrate quick and necessary action based on new information. Arnold and Gunderson suggest that property should be viewed as a “web of interests” rather than as a “bundle of rights” (Arnold and Gunderson, 2013: 10438). This suggestion is not fully fleshed out, but it indicates acknowledging the need to decentre property rights to some extent.

Processes

Decision-making processes should move from linear models to cyclical ones that emphasise institutional learning. Regulations should incorporate feedback loops, and experimentation should be possible. This cycle should enable continuous monitoring, evaluation, and adjustment. In addition, while policy should be flexible and address specific local issues, it must remain stable in its institutional design and regulatory framework so stakeholders know what to expect and can predict future developments (Van Buuren et al., 2013).

Administrative agencies should be able to intervene in existing processes if feedback warrants it. Broadening the powers to intervene is a thorny issue, because law tends to favour the status quo in the name of legal certainty and principles of good governance. Arnold and Gunderson argue this should happen in an evolutionary way (2013: 10437), not overnight.

The adaptive law framework

The exploration undertaken above allows drawing up a table of aspects of adaptive law.

Aspects of adaptive law
Goals	Goals are formulated that aim to protect both ecological and social systems and to guide compliance, enforcement, and judicial interpretation.
Structure	Polycentricity: Multiple centres of authority deal with a particular problem. Lower-level administrative bodies are represented at higher levels, and scientific expertise is present at all levels of governance.
Methods	Flexibility for administrations and room to experiment based on scientific evidence. Participation of experts and stakeholders. Evolutionary relaxation of the importance of property rights.
Processes	Iterative feedback loops and evaluation for institutional learning. Reliance on collaborative and transparent processes.

Environmental justice

The environmental justice movement arose in the US and explicitly addresses environmental inequalities along racial lines. It sprang up from grassroots movements that addressed the racialised and classist elements of environmental degradation (Agyeman et al., 2002). Scholarly interest emerged after Robert Bullard’s influential study ‘Dumping in Dixie’ first appeared in 1990. Bullard showed that toxic waste facilities were often placed in areas where people of colour lived. It became apparent that environmentally harmful activities generally follow the ‘path of least resistance’ (Saha and Mohai, 2005: 618), meaning they occur in areas where citizens are least empowered to combat them. This leads to a dynamic in which polluting activities are predominantly undertaken in already marginalised areas and communities, increasing their marginalization.

The EJ movement focuses on various kinds of injustices and inequalities, related to the environment and marginalisation. Schlosberg (2007) mentions four aspects of justice: equity, recognition justice, participatory justice, and the capabilities approach. These four aspects will be elaborated on below, taking Schlosberg as a point of departure while also considering the views of other authors.

Equity

Distributive justice, the question of how resources and goods within a society should be divided, is an ancient philosophical discussion that John Rawls reinvigorated in his work ‘A Theory of Justice’ (1971). Rawls argued that justice is about the rules that govern how society distributes advantages (Schlosberg, 2007: 13). The EJ movement showed that the distribution of such risks was unequal, with poorer communities and communities of colour bearing the brunt of the burden.

Distributive justice or equity remains integral to environmental justice, but its focus differs slightly. EJ focuses on the unequal distribution of environmental risk (Curran, 2017: 299) rather than on the distribution of primary goods. Its concern with equity is therefore closer to a conception of distributive justice found in the risk society literature (Beck, 1992). For EJ theorists, the distribution of the goods is not the central question; it is about the distribution of the bads.

Recognition

While fair distribution is still important, theorists have recognized that more is at stake than distributional schemes. Uneven distribution of environmental harms has underlying causes, one of which is a structural lack of recognition. Lack of recognition happens when one faces ‘various forms of insults, degradation, and devaluation at both the individual and cultural level’ (Schlosberg, 2007: 18). It is a history-sensitive view of justice, because the lack of recognition may become structural when patterns of non-recognition are iterated and reinforced over time, leading to structural injustice (Young, 2011: 45). Redress of past injustice is therefore part of recognition justice, as is the recognition of one’s knowledge, identity and worldview.

In the ideal world in which procedural ‘background justice’ (Moroni, 2023) is achieved, such structural non-recognition does not happen. In the everyday institutional practices with which environmental justice concerns itself, non-recognition is entrenched and follows ethnic, cultural, and classist lines. If background fairness is the necessary backdrop against which fair distribution of goods takes place, structural non-recognition is the background against which structurally unfair distribution of environmental harm takes place.

Participatory justice

Both patterns of distribution and recognition are related to the ability to participate in society’s social and political order. Without the ability to participate, there is no influence on the rules of distribution. Moreover, a lack of rights to participate is a form of disrespect and exclusion. A close relationship among these three forms of (in)justice obtains: unequal conditions for participation hamper equity and recognition, and, likewise, inequity and non-recognition hamper participation (Schlosberg, 2007: 28).

The environmental justice movement recognized participatory justice as necessary. One of the first statements made by its advocates was “We speak for ourselves,” indicating marginalised groups’ demand for their own seat at the table rather than for others to speak on their behalf (Figuroa, 2022: 768).

Capabilities approach

While the distributive approach focuses on the distribution of goods, the capabilities approach seeks to optimize the capabilities of people: “to do and to be what one chooses in the context of a given society” (Schlosberg, 2007: 30). According to capability theorists, human beings need to have several basic capabilities and needs fulfilled to flourish and acquire what Sen calls ‘functionings’, Sen (1999). He identifies five fundamental freedoms that advance people’s functionings: political freedoms, economic facilities, social opportunities, transparency guarantees, and protective security. Martha Nussbaum conceives of a rather more comprehensive list, including bodily integrity, safety, affiliations, and opportunities to play (Schlosberg, 2007: 32).

The point of the capabilities approach is that people should be enabled to reach what they intend to: “do and be” (Basta, 2016: 191) and that they have the capacity to make choices that matter to them. It is an approach to justice because it argues that not having those capabilities or opportunities constitutes an injustice that should be corrected by public policy. Well-being here is considered to be similar to the concept of quality of life, or “well living” (Kimhur, 2020: 261/262). The objective of public policy should not necessarily be to increase primary goods. Instead, everyone should be granted the opportunities to live a meaningful life, within communities that sustain such a life.

The environmental justice framework

The abovementioned exposition of the core tenets of justice in the EJ literature allows for drawing up a similar framework to that for adaptive law. The centerpiece of the framework is the capabilities approach, because it encompasses the other dimensions of justice (Schlosberg, 2007: 34). To live well, access to primary goods is needed. Effective participation presupposes the capabilities to articulate arguments and the time to attend meetings. The ability to shape who you are and what you do as a person requires recognition from others.

Aspects of environmental justice
Distributive justice	Environmental risks should be distributed equitably over communities.
Recognition justice	Different communities need to be treated with equal concern and respect, including respect for their cultural and ethnic identity and local knowledge and worldview.
Participation	Participation, individually as well as through grassroots organisations, is necessary in every layer of decision-making. Mechanisms to ensure everyone can participate equally should be in place.
Capabilities	Public policy should ensure that every community and the people within these communities have the opportunities to realize their goals and fulfil their functionings.

The Dutch Environment and Planning Act

The following two subsections are devoted to the Dutch Environment and Planning Act (DEPA). The case of the DEPA is particularly interesting for planning. Spatial planning is highly salient in the Netherlands as its high density and small scale make it susceptible to conflicting claims to space. The Netherlands has long been internationally regarded as a ‘planner’s paradise’ (Faludi and Van der Valk, 1994: xii), with a strong reputation for comprehensive strategic planning (Hajer and Zonneveld, 2000: 338). The DEPA represents an overhaul of the Dutch system. This one Act replaces 26 different statutes and countless bylaws, regarding areas such as land use, environmental protection, cultural heritage, water management, and land expropriation. The overhaul of the planning system is a major regulatory operation, which met with significant delays. After the initial proposal, it took 10 years for it to enter into force in 2024.

In the following subsection, a doctrinal analyses is undertaken of the DEPA, making use of its Explanatory Memorandum (EM) (Ministry of Infrastructure, 2014), the first national strategic policy document based on its principles, the National Environmental Vision or ‘NOVI’ (Ministry of Internal Affairs, 2020) and the work of prominent Dutch legal commentators.

A doctrinal analysis is a legal research method by which a legal matter is studied through doctrinal sources of law, such as court cases, adjacent legal texts, commentaries, and the work of authors recognized as experts in the field (Hutchinson, 2015). The purpose of a doctrinal analysis is to interpret the extent and scope of legal provisions and assess how they fit within the legal system, taking into account the hierarchy among legal sources and prominent commentators (Westerman and Wissink, 2008). In this case, the analysis seeks to interpret the most essential provisions of the law from the perspective of adaptive law and environmental justice. It differs from social-science methods and traditionally does not involve specialized software or a codebook. It is very much library-based research (Roy, 2023: 3).

A doctrinal analysis of the DEPA

The analysis below follows the division of law in its different aspects outlined above and concerns the Act's adaptive capacity. Subsequently the Act is related to the environmental justice framework.

Goals of the DEPA

The DEPA is explicitly goal-oriented, and in Article 1.3 DEPA, two goals are stated: The Act aims firstly to achieve a safe living environment with healthy environmental quality; secondly, it seeks the efficient use and development of the living environment to meet social needs. These goals are further explicated in subsections a and b of Article 1.3 DEPA. They should be considered “to ensure sustainable development, the habitability of the land and to protect and enhance this environment”. The mention of sustainable development indicates that not only the needs of the present generation but also those of future generations should be considered (Oldenziel and De Vos, 2024: 35). The point of the article is to allow a weighing of interests, instead of stipulating beforehand which interests should prevail. According to the EM, the goals should guide market parties and citizens to abide by their general duty of care for the environment, laid down in articles 1.6 DEPA and 1.7 DEPA, and guide lower administrations when using their competences (Ministry of Infrastructure, 2014: 62).

The goals, as stated in Article 1.3, are broad and cover the Act in general, but for specific topics, more concrete goals can be established in lower-level regulations. The stipulation of such specific goals must take into account the broad goals stipulated in Article 1.3 (Oldenziel and De Vos, 2024: 37).

The goals themselves are vaguely worded and in tension with one another. Adaptive law expects that goals guide lower authorities, all the way down to the judge. It also demands that goals cover both economic and ecological systems. However, broad goals that do not make clear choices cannot provide such guidance. Research indicates that when proper guidance is not provided, local governments lack direction on how to use planning instruments effectively (Gupta et al., 2016: 901).

Structure and polycentricity in the DEPA

In terms of structural polycentricity, the DEPA is described as a further step in an existing trend towards decentralisation. The EM states that municipalities are the main protagonists of environmental protection and spatial planning (Ministry of Infrastructure 2014: 43). The principle of subsidiarity, which indicates that decisions should be taken at the level closest to the citizen as possible, in the Dutch case, the municipality, is explicitly codified in article 2.3 DEPA. To commentators, however, it is not clear that the Act represents true decentralisation. Based on Article 2.3 sub 2 DEPA, higher administrations have the competence to intervene in the planning powers of lower ones if the municipal administration does not adequately promote their interests. According to De Jong and Broeksteeg (2020), the exact division of competences is not transparent, and this may create differences between municipalities that can lead to legal uncertainty and inequality.

The Act does not feature a nested system of lower-level representation within higher administrations, although numerous deliberative forums already exist in which administrative bodies can consult one another. The role of (natural) scientific expertise is not strongly institutionalised. Article 20.18 DEPA mentions that a scientific report will be released every four years, on subjects designated by Ministerial Decree. The EM actually warns against placing too much trust in science though, as modelling and expert opinion may provide a false sense of certainty (Ministry of Infrastructure, 2014: 16). More attention to the importance of knowledge is found in the policy cycle described in the NOVI. Attention to the role of local knowledge is absent.

Methods of the DEPA

Municipal planning is laid down in two primary documents: the environmental vision and the environmental plan. Likewise, the regional government (the province) is required to draft a provincial environmental vision and a provincial environmental plan. At the national level, two similar documents are also mandatory. One of these is the NOVI. The National Environmental Vision operates as a strategic vision for the country as a whole. The environmental plan is binding and creates concrete legal consequences. It broadly structures developments, providing a binding but general blueprint. The details are left up to the initiators of projects. ‘Initiator' is a new key term in the context of Dutch spatial planning. It indicates the party that initiates an activity with spatial consequences, be they administrations, citizens, market parties, or a combination thereof.

The EM emphasizes both the system’s participatory character and its flexibility. Flexibility is heightened because plans become less detailed, administrations have more room to balance interests, and initiators have opportunities to take more initiative (Ministry of Infrastructure, 2014: 156). This approach has been termed ‘invitation-planning’, which indicates a type of planning in which plans do not describe developments in detail, but serve as indicative blueprints of how initiators can develop the area (Hillegers and Nijmeijer, 2018).

Participation has become the pillar of the new Act. Under the heading ‘working adaptively’, the NOVI states:

Broad societal engagement from citizens, businesses, civil society organizations, and initiators is a prerequisite for the success of shared ambitions. This ensures that different perspectives, initiatives, knowledge, and creativity are brought to the table, enhances the quality of solutions, and mobilizes collective action and intelligence (Ministry of Internal Affairs, 2020: 161).

The expectation is that participation will engender both trust in the government and a broader support base for policies (Ministry of Infrastructure, 2014: 46). Large-scale projects, such as road construction, require organised participation, as stipulated in Articles 5.47, 5.48, and 5.51 DEPA. In the case of plans, the administration needs to explain why it chose a particular form of participation. According to Tadema et al. (2024: 197), this forces the administration to have a participation policy in place upfront. However, there are no substantive requirements regarding what this policy should look like, who needs to be heard, how hearings should be organised, or to what extent participants should influence the actual decision-making (Tadema et al., 2024: 198).

Article 16.55 sub 6 DEPA implies that initiators will need to indicate whether and how they have engaged with stakeholders. This does not impose a strictly binding obligation to organise participation (Tadema et al., 2024: 199). Boeve and Groothuijse (2019: 42) argue that the legal participation obligations under the DEPA are non-committal and difficult for citizens to enforce in court. While participation has become the buzzword of the new Act across various policy documents and in public discourse, strong binding requirements and standards are largely absent.

Processes in the DEPA

The EM speaks of a ‘paradigm shift’ in the way administrations and civil servants should work. The administration will need to facilitate initiatives from society rather than be the initiator itself. This requires the emergence of a different administrative culture in which the administration does not initiate developments but steers them with a healthy and safe environment in mind (Ministry of Infrastructure, 2014: 19/20).

Part of this paradigm shift is a cyclical approach to development to ensure that administrations work proactively to achieve the intended environmental quality (Ministry of Infrastructure, 2014: 23). The NOVI explicitly positions itself within such a continuous policy cycle and explains what this cycle should look like. Based upon monitoring and evaluation, it should be continuously revisable in light of new developments and create ‘a highly developed cyclical and adaptive system of environmental knowledge, policy, and regulation that aligns with societal developments and needs’ (Ministry of Internal Affairs, 2020: 20).

Assessing adaptivity in the DEPA

As is often the case, the DEPA is the product of a variety of ideas and policy philosophies. It is, in many ways, the successor to the Crisis and Reconstruction Act, enacted in 2008 in the wake of the financial crisis (Jansen, 2019). The Crisis and Reconstruction Act was designed to stimulate the construction sector by making development projects easier, and it intended a more facilitative role for administrations in stimulating initiatives. Aspects of adaptive law theory are made more explicit in the NOVI, which emphasizes policy cycles and social learning.

On the face of it, the new Act does enable an adaptive planning regime. Its goals, structure, methods, and processes align with the adaptive law framework. It sets multiple goals, fosters polycentricity and flexibility, intends to engage with a broad range of stakeholders, and supports an experimentalist way of working within a policy cycle that emphasizes evaluation, monitoring, and institutional learning. It presents itself as inclusive and participatory, and it stimulates self-organisation through invitation planning.

On the other hand, many of its requirements are non-binding, and there are no guarantees that a genuinely adaptive way of working is achieved. Its goals are tied to a general duty of care for the environment, but these goals are broad and vague. The Act leaves a lot of room for initiators to design participation processes and provides no guarantees for science-based policy making. Evaluation and monitoring have, for the most part, been relegated to the domain of policy. More transformative aspects of adaptive law, such as a decentring of property rights, ‘nested’ participation, and integration of local knowledge, are absent.

The new DEPA and the explanatory policy documents reflect an unstable compromise between an adaptive and an entrepreneurial (Tasan-Kok, 2010) approach. This paradox comes to the fore even more strongly when the DEPA is analysed through the lens of environmental justice.

The DEPA and environmental justice

Equity in the DEPA

The DEPA does not appear to be strongly concerned with justice. In the EM the word is only mentioned in the context of transparency and participation (Ministry of Infrastructure, 2014: 46/47), but not in the context of equity. In the EJ framework, distributive justice is conceptualized as the equitable distribution of environmental harms. The Act offers nothing beyond the already available legal remedies against environmentally harmful projects. There are indications that distributive justice may be worse off under the new system. ‘Invitation planning’ may lead to inequality between municipalities, as already noted above. Ferm and Raco (2020) have found that market-based approaches exacerbate inequalities in the UK between successful and struggling regions.

Under the new Act, municipalities must draft broad, integrated plans and visions, and they are also responsible for monitoring and evaluating them. A large municipality such as Amsterdam has the resources and capacity to overhaul existing policies, but smaller municipalities might lack these resources, leading to uneven patterns of implementation.

EJ scholars note that environmentally harmful activities often follow the road of least resistance, creating structural patterns of environmental inequality. The DEPA itself, provides few constraints on developers to prevent them from choosing sites for environmentally harmful activities where they expect to be able to brush aside residents’ interests or municipal objections most easily. This could lead to structural patterns of territorial differentiation. Planning theory recognizes that such territorial decentralisation is implicated in the neoliberalisation of planning (Miraftab, 2008; Tasan-Kok, 2011).

Recognition justice in the DEPA

Recognition justice means taking care to treat everyone with equal care and respect, and the right not to be discriminated against on the basis of class, ethnicity, or culture. The DEPA invites initiators to play a strong role in planning and designing participation procedures. There are few safeguards to ensure that people are treated with equal care in these procedures. Stapper and Duyvendak (2020) show how participation procedures can be used to favour entrepreneurial citizens over less entrepreneurial ones (Stapper and Duyvendak, 2020). The authors note that these ‘good residents are seen as valuable, active citizens, while those who are not entrepreneurial or do not have the capacities for it are devalued. Moreover, there are no legal mechanisms in the DEPA or policy documents that actively encourage the consideration of local knowledge. This is a missed opportunity in terms of EJ and adaptivity, as their inclusion may make systems more resilient (Berkes et al., 2000).

Skrimizea et al. (2020) and others (Coser, 1957; Wolf and Van Dooren, 2018) have noted that conflicts can have productive effects and stimulate innovation. Procedures in the DEPA are not geared towards agonistic politics, though. Participatory procedures are considered to increase trust and foster consensus, hence they downplay conflict. The central actor in them is the initiator, who is firmly in the driver’s seat. Its interests are recognized and should be the subject of care by the municipality. The interests of others appear secondary.

Participatory justice in the DEPA

The motto of the EJ movement: ‘we speak for ourselves’, is as relevant today as it was in the 1990s. In the Netherlands, middle-aged, highly educated white men are structurally over-represented in participation procedures (Tonkens and Verhoeven, 2018: 1596).

From the EJ perspective, participation should involve grassroots movements in matters that concern them. Care should be taken to actively reach groups whose voices are frequently not heard in participation procedures and enable them to speak up. Grassroots and community representation are missing in the DEPA, as are safeguards to ensure people from diverse backgrounds are reached when participation is organized. Municipalities may set requirements for doing so in their internal participation policies, but they are not required to.

The EM notes that not demanding any standards or procedures for participation is a conscious choice. The particular context should determine the best way to involve the public (Ministry of Infrastructure, 2014: 218). This open approach, combined with the strong role of initiators in setting up the process and its consensual nature, may reinforce entrepreneurial tendencies. It has been pointed out that participation organised along these lines forces participants into a register of consensus-seeking, thereby changing politics into negotiation (Allmendinger and Haughton, 2012). This condition poses a risk of perpetuating injustice (Legacy et al., 2019). The fear has been voiced that eventually participation might devolve into a discussion between consultancy firms (Van de Kamp et al., 2019). This would be a far cry from ‘we speak for ourselves’.

The DEPA and a capabilities approach

The policy cycle enabled by the DEPA emphasizes experimentation and learning-by-doing. These qualities make policy more adaptive, but they also favour entrepreneurial initiators.

The preference for the entrepreneurial citizen-initiator is aptly displayed by the ‘Oosterwold Project’ (Chevalier and Tzaninis, 2022). This project has been presented as a showcase of the new way of working, highlighting self-organisation within area development. In this project, which started as little more than a large barren area situated in the polder landscape near the Dutch city of Almere, residents not only develop their plot of land and build their own house, but they also organise all the amenities that are needed, such as sewage, roads, and electricity. It is questionable whether the project should be considered a success, but that is irrelevant here. The project reflects the DEPA’s entrepreneurial slant. It provides opportunities for parties that already have capabilities, rather than increasing the capabilities of communities that lack them.

The DEPA adopts what may be described as an inverted capabilities approach; rather than creating resilient communities by improving their capabilities, it mobilizes existing capabilities to develop communities. A true capabilities approach, on the other hand, requires investing in existing communities by increasing the capabilities of their inhabitants. Such an approach would entail improving connectivity and the functionings available to the community, rather than leaving the realisation of necessary amenities to private initiative.

Municipalities will undoubtedly do their best to enhance their citizens’ capabilities. The point is that the DEPA does not provide municipalities with any additional tools to increase the capabilities of those who lack them. It does provide extra tools for those who already have such capabilities and use them for their benefit.

Justice in the DEPA

According to Korthals Altes, planning should contribute to both the development of living places and investment spaces (Korthals Altes, 2019: 1154). When the DEPA is contrasted with the EJ framework, it becomes clearer that the DEPA leans heavily towards the development of investment spaces.

From the outset, the DEPA incorporates numerous adaptive aspects. However, when contrasted with the EJ framework, its paradoxical elements come strongly to the fore. The DEPA comes closer to resembling the endpoint of the neoliberalisation of planning than to the start of a new bloom period for planning in the Netherlands.

Should the conclusion be that the DEPA is simply a peculiar Dutch phenomenon, a neoliberal planning law with an adaptive face? That conclusion would simplify matters too much. There are indications that the problems lie deeper and stem from the assumptions embedded in the theories of adaptive law and resilience thinking. These indications are further explored below.

Discussion

Analysing the DEPA through the lens of Environmental Justice uncovered a paradox: a law that is supposedly adaptive, also accommodates neoliberal planning practices that rely on the exploitation of space for economic needs and produce territorial fragmentation. Two questions must be asked. The first question is whether the neoliberal tendencies embedded in the DEPA are a reflection of certain characteristics within adaptive law itself. The second question is whether integrating justice concerns within adaptive law and planning would strengthen their potential to increase resilience. If the second question should be answered in the affirmative, then EJ concerns should play a stronger role in both adaptive law and adaptive planning than they do currently.

Adaptive law and neoliberal planning

It must be kept in mind that the DEPA arose in the particular context of the Netherlands, within an already transforming planning culture (Buitelaar et al., 2011). The analysis cannot be generalized to all legislation that incorporates aspects of adaptive law. More environmentally ambitious adaptive regulation is undoubtedly possible. However, several characteristics of adaptive law itself are conducive to neoliberal planning. Adaptive law is goal-oriented, and its goals should strengthen both ecological and economic quality. It is hard to state such a goal in a way that provides clear guidance. As economic interests remain dominant, goals formulated with both interests in mind risk ending up paying mere lip service to environmental protection. If a weighing of interests is to be made, who guarantees that these interests compete on an even footing? Adaptive law offers little to shift the existing balance of power between economy and ecology. The theory of adaptive law emphasizes flexibility, participation, and experimentation. Each of these qualities tends to favour entrepreneurial actors who have the resources to participate and experiment. In this context, flexibility may well come down to relaxing the constraints on economic power to the detriment of the less well off, in other words, favouring liberty over equality.

When assessed through the lens of environmental justice, adaptive law seems merely to offer an opportunity to repackage neoliberal planning as a state-of-the-art, inclusive, science-based, and environmentally considerate planning system. There are more transformative recommendations suggested in the adaptive law literature, but they tend to be underdeveloped. More attention to justice is necessary to balance its ‘entrepreneurial’ aspects. Integrating justice concerns with adaptive law and planning is only attractive if doing so would not compromise their potential for fostering resilience. Below, the case is made that attention to justice would actually strengthen their potential in this regard.

Justice and resilience

The notions of adaptive law and adaptive planning are both indebted to the idea of resilience. Simin Davoudi (2021) shows that the concept of ‘resilience’ currently enjoys widespread popularity but is interpreted in multiple ways. She discerns two dominant genealogies of the term. One is carried over from engineering studies and presupposes a kind of natural equilibrium. Resilience in this technical sense refers to a system’s ability to resume its normal function after a shock. The second concept of resilience is organic and evolutionary. This concept highlights the permanent nature of change. It describes systems as going through phases of growth, stability, decline, and eventual collapse. Collapse, however, should not be seen as merely a moment of disorder, but also as an opportunity for change. An evolutionary concept of resilience calls for adaptive planning that increases connectivity and emphasizes the relational nature of space, characterized by a ‘will to connect’ (Davoudi, 2021: 15). It embraces transformative opportunities and moments of ‘disruptive innovation’, not to return to normal but to break away from it, when the normal state is unfavourable due to poverty or natural degradation (Davoudi, 2021: 14).

Understood this way resilience thinking would benefit from incorporating environmental justice concerns. Guarantees for a fair and equal distribution of environmental burdens are a starting point towards more resilient communities because, if left to the flow of market forces, environmental burdens tend to become unevenly distributed. Environmentally harmful activities are often conducted in areas where resistance is lowest. Such a dynamic eventually leads to the breakdown of a social system, and in an environmentally overburdened and incapacitated system, collapse rarely means improvement. Equity is therefore necessary to increase resilience.

Recognition is a necessary condition for adaptive polycentral decision-making. Such decision-making practices cannot flourish in a field in which some nodes of the network are structurally non-recognized, and their knowledge and identity are not valued. An approach to both law and planning that takes the incorporation of different viewpoints seriously should be willing to allow for agonistic conflict and engage in processes of ‘conflict transformation’ (Skrimizea et al., 2020). This entails enabling groups whose knowledge was hitherto marginalized to articulate their arguments and solutions and mobilize their local knowledge. Devaluing experiential learning and local knowledge is a form of non-recognition, and not only is such non-recognition unjust, but it also limits the ability to find pathways to successful adaptation.

The importance of participation is stressed in both the EJ literature and in adaptive law, and it has a long history in planning. From an EJ perspective, the idea of ‘nested’ participation found in adaptive law theory should be radicalized to include community representation and the empowerment of grassroots movements. This resonates well with the idea of optimizing connectivity and relationality, as discussed in planning literature.

Perhaps the most far-reaching EJ requirement is the use of a capabilities approach. From an EJ perspective, increasing the capabilities of communities is the right thing to do in terms of justice, especially for communities that were marginalised for a long time. From the point of adaptive planning, systems need a robust foundation to enable them to withstand shocks and continue to exist on a new, hopefully improved, level of stability (De Roo et al., 2020). Rauws argues that tapping into the potency of self-organization requires that local actor coalitions have the capacity to contribute to transformations (Rauws, 2017: 208). If self-organization requires capacity, then a capabilities approach that focuses on increasing the capabilities of communities and people within them is necessary.

This requires a broad implementation of the capabilities approach. Increasing capabilities to participate in an open process that allows for contestation is vital. This would allow for more recognition, potentially increasing the number of viewpoints available, and for the articulation of new hitherto undervalued forms of knowledge. However, increasing the capabilities that enable people to live a good life, such as stable employment, transportation, and leisure, is also necessary. Such aspects may grant people the will to invest time in their community and instil a sense of pride in it, increasing its functionings and ultimately its resilience.

The literature on adaptive law seems to take such capabilities for granted. In contrast, the EJ literature shows that cultivating capabilities requires active and continuous involvement, should include redressing past injustices, and may amount to potentially painful processes of mutual recognition. The institutional incorporation of mechanisms to anchor a capabilities approach in policy and planning seems not only desirable but also necessary from the perspective of resilience.

Without integrating justice in adaptive law and adaptive planning, these paradigms risk not realizing their transformative potential. Davoudi’s distinction between two concepts of resilience should serve as a word of inspiration and of warning. The evolutionary concept of resilience, which underpins the analysis above, is transformative and optimistic, turning crises into opportunities for social and ecological improvement. The engineering conception of resilience favours the status quo and protects vested interests. This conception should not be the one adaptive law and planning eventually settle for.

Conclusion

Over the last decades, the concepts of adaptivity and resilience have taken root in both law and planning. The Dutch Environment and Planning Act is a state-of-the-art piece of legislation that should enable adaptive planning. When the law is critically analysed using concepts from both the adaptive law literature and the environmental justice literature, it becomes apparent that the DEPA facilitates a neoliberal form of planning in practice, despite its promises to protect sustainable development and resilience.

The paradox that an ostensibly adaptive Planning Act may facilitate a planning system that cultivates social and environmental inequality, stems at least in part from specific characteristics and presumptions embedded in the idea of adaptive law itself. Adaptive law theory values entrepreneurial qualities such as the ability to self-organize, to experiment, and to participate. It generally does not consider what consequences fostering these entrepreneurial qualities have for justice. With the aid of innovative insights from adaptive planning theorists, the point is made that considerations of justice, especially justice in the sense of securing capable communities within which people feel recognized, are a prerequisite for an adaptive approach to law and planning.

Footnotes

Acknowledgements

This research is the result of an investigation into adaptive law, undertaken within the scope of the CONTRA (Conflicts in Transformation) project, funded by JPI Europe/ENUTC and the Dutch NWO (Netherlands Organization for Scientific Research). I want to thank Esther van Zimmeren, Eva Wolf and all other CONTRA colleagues for their critical input during the project. The author also wishes to thank Tuna Tasan-Kok, Rob Schwitters, and Mike Leach for commenting on earlier versions of the draft, and my colleagues from the Legal Theory and Philosophy group at Tilburg University for the stimulating discussion we had during the presentation of an early version. I am especially grateful to the anonymous reviewers at Planning Theory for their invaluable comments and to Donna Devine for her language editing of the earlier revised manuscript.

Declaration of conflicting interests

The author declares no potential conflicts of interest concerning the research, authorship, and/or publication of this article.

Funding

The author discloses receipt of the following financial support for the research, authorship, and/or publication of this article: The CONTRA project has received funding from JPI Urban Europe and the European Union’s Horizon 2020 research and innovation programme under grant agreement no. 101003758. The national funding authorities that support the project are the Dutch Research Council (NWO), the Research Foundation Flanders (FWO), the Norwegian Research Council (NFR), and the National Science Centre, Poland (NCN).

Ethical considerations

These concerns are not applicable. This article contains no references to any studies involving human or animal participants. Therefore no informed consent with regard to humans is required.

ORCID iD

Niels Tobias Arnoldussen

Data Availability Statement

The article contains publicly available data, all of which have been referenced and are easily accessible.*

Author biography

Tobias Arnoldussen is assistant professor of jurisprudence at Tilburg Law School. He is a socio-legal scholar who works from a historical social-constructivist perspective and employes discourse analysis as his main method of research. Research interests include environmental law and planning, criminal law, 'risk society' and environmental policy making.

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