1. Adaptive Management and Administrative Law: A Necessary Encounter

In contemporary societies^[1], change is no longer episodic but represents a permanent condition with which legal systems must deal^[2]. In these contexts of permanent transition^[3], the international scientific literature has long identified adaptive management as the most effective management strategy.

However, in Italy a full adoption of such a management model – the core of which is a multi-step iterative process to adapt management measures to changing circumstances or new information on the effectiveness of previously adopted measures – is currently hindered by administrative law, which is faced with the challenge of overcoming the conception of the measure as a static “snapshot” of reality, the epilogue of an “exhausted” procedure^[4], to embrace a model capable of adapting to a dynamic reality in permanent transition^[5] . In other words: administrative law must adapt to adaptive management.

Adaptive management, developed in ecological sciences beginning with the pioneering studies of C.S. Holling in 1978^[6] and subsequently systematized by C.J. Walters for renewable resource management^[7], is founded on a structured and iterative approach that recognizes uncertainty as an ineliminable element of complex systems. This paradigm has progressively found application in sectors beyond its original environmental management focus, demonstrating its capacity to adapt to different normative and administrative contexts.

Based on this same premise, the U.S. scholars Robin Kundis Craig^[8] and J.B. Ruhl^[9], have developed a proposed articulation of adaptive administrative procedure: the Model Adaptive Management Procedure Act^[10] (so-called MAMPA). The analysis that follows draws not only on the theoretical framework developed by Craig and Ruhl, but also on empirical evidence from the Italian legal system, which already incorporates numerous adaptive mechanisms in sectors ranging from pharmaceutical regulation to healthcare accreditation and water resource management.

Although this work is set in the different context of the U.S. legal system, it is believed that it can provide insights of interest for the development, in the Italian legal system, of a legal instrument that allows the adaptation of the title and the administrative relationship to the permanent change of factual reality.

This contribution analyzes the founding principles and procedural mechanisms of MAMPA, evaluating their compatibility with the cornerstones of Italian administrative law. The analysis builds upon a systematic examination of pre-adaptive institutions already present in the Italian legal system, which demonstrate both the empirical feasibility and constitutional compatibility of adaptive approaches. The study explores the pathways through which adaptive procedures might be integrated within our legal system, examining both the opportunities and challenges for responding to permanent transitions while preserving the fundamental guarantees that characterize Italian administrative law.

2. From Static to Dynamic: Rethinking Administrative Stability

Since the assumption underlying the present reflection is that administrative law must adapt to adaptive management, it seems essential to focus on what the characteristics and needs of this management methodology are.

Adaptive management has long been considered an indispensable element of regulation^[11] in a wide range of sectors, including pharmaceutical, medical, financial, social welfare and natural resource management^[12]. It consists of a structured and iterative decision-making process that allows for the adaptation of management choices in response to new information and changes in the regulated system. Developed in the 1970s by C.S. Holling in ecological science^[13], this approach is based on a continuous cycle of planning, implementation, monitoring and adaptation.

Adaptive management recognizes uncertainty as an ineradicable element^[14] and incorporates learning into the decision-making process itself. Indeed, its fundamental principles include recognition of uncertainty, continuous monitoring, periodic adaptation of measures taken, and the distinction between fundamental (unchangeable) and adaptive elements of decisions.

This model differs radically from predictive models, which attempt to anticipate all future scenarios and prepare ex ante solutions: while the predictive approach requires large initial investments in analysis and tends to “freeze” decisions, the adaptive model distributes cognitive costs over time and keeps options for action open. Adaptive management also differs from purely reactive approaches, which intervene only after the emergence of overt critical issues, combining advance planning with responsiveness to new information.

From these minimal notes, the need for an appropriate regulatory foundation, which explicitly recognizes the possibility of adopting an adaptive approach and defines its conditions and limitations, emerges strongly^[15] .

Precisely in order to build a regulatory framework suited to the needs of adaptive management, the Model Adaptive Management Procedure Act aims to translate the theoretical principles outlined so far into an operational procedural system, offering concrete solutions to the friction points between adaptive management and “traditional” administrative law^[16]. It seems, therefore, of interest to analyze its structure and main innovations, in order to assess the extent to which these elements – albeit with the necessary adaptations – may be transferable to the Italian legal system.

3. The MAMPA Model: A Blueprint for Adaptive Administrative Procedure

The Model Adaptive Management Procedure Act (so-called MAMPA), drafted in 2014 by professors Robin K. Craig and J.B. Ruhl, is a proposal^[17] of alternative administrative procedure specifically designed to enable the full adoption of adaptive management. Starting from the observation that the U.S. Administrative Procedure Act (so-called APA) is an obstacle to the full implementation of adaptive management^[18], the two jurists theorized a parallel “procedural track”, to be used only in certain contexts^[19].

MAMPA is based on key concepts, including those of “adaptive management”^[20] and “complex system” or “system”^[21], which form the essential operational assumptions of the entire discipline, translating notions derived from complexity sciences into legally binding terms^[22]. This conceptual approach reflects a fundamental paradigm shift: it is no longer a matter of making a point decision in a relatively stable context, but of continuously managing complex systems, characterized by permanent uncertainty.

Access to the “adaptive track” is regulated in a systematic and articulated manner^[23]. The proposal contemplates three distinct scenarios: the U.S. legislature may expressly require the agency^[24] to use the adaptive track, explicitly prohibit its use, or, finally, leave it to its own devices. In the latter case, the agency may opt for the adaptive track only upon verification, «based on the best available evidence», that a number of objective prerequisites are met. These include: the complexity of the system to be regulated; the difficulty of predicting its responses to administrative actions, especially when the development of detailed information could improve future actions; the presence of system-related unknowns or uncertainties; the need to regulate or manage significant components of the system; the identification of definable management objectives; the availability of measurable indicators; the possibility of multiple management options; and the ability to observe system responses in time frames consistent with periodic reviews. The decision to follow the adaptive track is formalized through a rulemaking process^[25] subject to judicial review, with a 90-day appeal period from publication of the final rule.

The planning-implementation-evaluation-reformulation cycle is the central element of the adaptive model^[26] . The initial plan, which is also adopted through rulemaking, must contain a detailed set of elements: management objectives, threats and obstacles to their achievement, indicators to be monitored, detection methodologies, management measures to be implemented and conditions that would justify their discontinuation (“abort indicators”) or that would signal the achievement of objectives (“finished indicators”). Transparency is ensured by the obligation to periodically publish monitoring data and report on implementation.

The transition from the initial plan to subsequent plans is a crucial element of the cyclical configuration of adaptive management. This transition is triggered by three possible events: the achievement of «abort indicators», the attainment of «finished indicators», or the expiration of the predetermined implementation period. In each case, the agency must issue a notice of termination of the current plan and proceed to adopt a new plan. Significantly, subsequent plans should also contain a critical assessment of the data collected during the previous implementation, an analysis of progress toward goals, and a detailed explanation of changes made based on lessons learned. This cyclical process of planning-implementation-evaluation-reformulation allows for both technical learning (during implementation) and institutional learning (in the transition between plans). MAMPA also provides a specific mechanism for eventual departure from the adaptive track, regulating four situations that may warrant a return to regular administrative procedures^[27].

One of the most relevant innovations concerns the plan implementation phase. During this period, the implementation of management measures is «committed to agency discretion by law»^[28] and, barring emergencies, is not subject to judicial review. This temporary immunity represents a significant departure from the principle of judicial review, traditionally central to U.S. administrative law. This exemption is balanced by time limits on implementation (a maximum of five years, subject to justified exceptions) and ongoing transparency requirements.

MAMPA also specifies emergency conditions that allow early termination of the plan^[29] . These include the achievement of «abort indicators» or the occurrence of severe and unforeseen disruptions that render the plan’s informational premises obsolete. In such cases, the agency may terminate implementation with a 30-day notice, subject to judicial review. Significantly, private parties can also initiate a mandamus^[30] proceeding to obtain termination of the plan, but only by proving «with clear and evident conviction» that the emergency premises have been met.

A peculiar profile of the adaptive procedure relates to judicial review. The most relevant innovation is the modulation of the intensity of the review according to the different stages of the adaptive process. There is full control over the decision to adopt the adaptive track and over the content of the plan, but control over implementation is excluded, with the exceptions that are strictly stated. Time limits for appeal are particularly short (30 days for the plan), reflecting the need for certainty in a continuous management context.

Of particular interest seems to be the innovative balance proposed between administrative discretion and judicial review. The proposed articulation, on the one hand, grants the agency broad technical discretion in implementing the plan; on the other hand, it imposes a strict structuring of the planning phase, with detailed justification requirements based on specialized science. Judicial review focuses on the planning phase, checking compliance with legislative objectives and the scientific rationality of choices, while in the implementation phase the need for managerial effectiveness prevails.

This new balance attempts to respond to the tension between the need to ensure democratic legitimacy and protection of rights, on the one hand, and the need to ensure effectiveness and technical competence, on the other. In the traditional model (APA), this tension is resolved by giving full discretion at the inquiry stage and imposing stringent controls on the final decision. In the adaptive model, however, the distribution is reversed: stringent controls on planning, discretion in implementation.

This inversion reflects the different nature of the “regulatory problem”: it is no longer a matter of making a timely decision in a relatively stable environment, but of continuously managing complex systems^[31], characterized by permanent uncertainty. In this context, democratic legitimacy is primarily ensured in the planning phase, through participation in rulemaking, while managerial effectiveness requires flexibility in implementation.

In sum, it seems that the most significant innovation from the traditional paradigm is the overcoming of the dichotomy between the procedural phase and the measure-making phase. In the adaptive model, the process does not end with the adoption of the measure but accompanies the entire life cycle of the administrative title^[32] . The initial plan is not a final measure, but the start of an ongoing management process, subject to periodic review. The dynamic nature of the approach replaces the linearity of the traditional model with a circularity that integrates decision-making, implementation and learning.

4. Pre-Adaptive Institutions Already Present in the Italian Legal System

It is worth noting that our legal system is not entirely foreign to logics of procedural adaptivity: it already contains a number of institutions that can be described as “pre-adaptive”, insofar as they incorporate mechanisms of flexibility and continuous adjustment to changing reality^[33]. These institutions, while not yet framed within a systematic paradigm of adaptive management, demonstrate that Italian administrative law possesses significant embryonic experiences of adaptivity that extend far beyond the environmental field initially mentioned.

Pre-adaptive institutions are characterized by common structural elements that anticipate the principles of adaptive management: continuous monitoring through permanent verification systems of the conditions that justified the initial measure; mandatory periodic review through mechanisms that require re-evaluation of the title at predetermined intervals; evidence-based adaptation through the capacity to modify the content of the measure based on new scientific, technical, or environmental developments; dynamic participation through active involvement of recipients in the process of updating and control; and organized flexibility through procedural structures that allow modifications within legally defined parameters.

A systematic overview reveals a cross-sectoral presence of pre-adaptive mechanisms across different areas of administrative action: in the health sector through accreditation of health facilities and pharmaceutical authorizations; in environmental protection through Environmental Impact Assessmen (EIA), Strategic Environmental Assessment (SEA) and Integrated Pollution Prevention and Control (IPPC) with post-procedural monitoring systems; in natural resource management through hydroelectric concessions and water authorizations; and in network services through telecommunications authorizations and banking licenses with continuous supervision.

4.1. Pharmaceutical Authorizations: A Paradigmatic Case of Reflexive Administration

The national procedure for the issuance of marketing authorization represents a paradigmatic case^[34] of an administrative procedure that incorporates the principles of precaution and reflexive administration^[35] and that displays features of adaptivity and flexibility resulting from the influence of European models, which diverge from the traditional logic of the Italian national law on administrative procedure^[36].

The entire system is based on a logic of adaptation to emerging scientific evidence, configuring an intrinsically dynamic procedural model that transcends the traditional conception of the administrative measure as a “static snapshot” of reality.

The normative framework includes Legislative Decree April 29, 2006, No. 219 (implementing European pharmaceutical directives), EC Regulation No. 726/2004 (centralized procedures), and Directive 2011/62/EU (prevention of falsified medicines). The system is founded on fundamental principles including Article 29, paragraph 1, of Law December 23, 1978, No. 833, which establishes the social function and public purpose of pharmaceutical production, and the precautionary principle of European origin.

With specific reference to the procedure for the issuance of the AIC (marketing authorization), it is characterized by the explicit inclusion of a monitoring phase – so-called pharmacovigilance – which falls under the competence of AIFA, but also involves other actors such as the Regions, the authorization holder, and healthcare professionals^[37]. Pharmacovigilance constitutes a systematic monitoring system that transforms pharmaceutical authorization from a punctual measure to a continuous evaluation process. The system features permanent post-authorization monitoring through systematic collection of real-world data on efficacy and safety; necessary status of the control phase where monitoring is not accessory but constitutive of the procedure; progressive adaptation of the title through the possibility of extending or limiting therapeutic indications; and a cooperative paradigm involving co-management of surveillance powers between AIFA and economic operators.

The adaptive mechanisms include powers of title variation distinct from self-remedy^[38], which involve modifications of authorization based on emerging scientific evidence rather than correction of procedural defects, and review procedures that can be activated upon request by the holder^[39]. The pharmaceutical code also provides for conditional marketing authorization^[40], which feature annual temporal efficacy requiring renewal, with three possible outcomes at expiration: renewal of conditional authorization, conversion to ordinary authorization, or revocation.

The system also includes duties of self-inspection under Article 71 of Legislative Decree 219/2006, requiring systematic self-control obligations by operators, continuous reporting to AIFA on emerging criticalities, and shared responsibility in risk management.

This model illustrates how the Italian legal system has already developed sophisticated mechanisms for managing permanent uncertainty in contexts requiring continuous adaptation to scientific evolution, representing a concrete precedent for the systematization of adaptive procedural principles.

4.2. Health Accreditation: A System of Continuous Evaluation

Health accreditation^[41] in Italy, regulated by Legislative Decree 502/1992 and implementing regional regulations, represents a system of systematic and periodic evaluation that demonstrates the ability of the legal system to develop adaptive mechanisms for quality management in public services. The cyclical procedural structure^[42] includes initial accreditation through verification of structural, organizational, and functional requirements; continuous monitoring through periodic controls and audit systems; periodic verification through re-examination of requirements and achieved results; and renewal/revision through confirmation, modifications, or revocation of accreditation.

The system is characterized by systematic and periodic evaluation, based on the necessary temporariness of every evaluation, requiring regular verification and permanent updating of requirements and performance. As highlighted by administrative jurisprudence, «a dynamic vision and a periodically renewed evaluation open to comparison between those already accredited and those aspiring to be accredited, can respond to the better and more efficient allocation of available resources»^[43].

Dynamic and evolutionary standards feature updating of requirements through continuous adaptation to scientific and technological developments; adaptation to permanent transitions through capacity to respond to changes in the health and social context; and the principle of continuous improvement through orientation toward progressive elevation of standards.

The adaptive control instruments include the regional health and social plan as a programming instrument that outlines dynamic organizational strategies; audit systems through cyclical controls for continuous performance evaluation^[44]; quality indicators through measurable parameters for objective monitoring; and corrective mechanisms through improvement procedures and recovery plans.

The procedural dynamism of accreditation surpasses the dimension of mere administrative control to configure itself as an instrument of social impact evaluation, placing the user-person recipient of the service at the center in the perspective of continuous improvement that should inspire all public services.

4.3. Legal Adaptivity in the Water Sector

In the water sector, the Italian legal system already includes several instruments that, while not explicitly labelled as “adaptive”, incorporate structural elements consistent with the logic of adaptive management. These are legal and administrative mechanisms capable of progressively adjusting public decisions in response to environmental, climatic, social or technological changes, through a cyclical logic based on monitoring, evaluation and revision.

One primary example is the River Basin Management Plans (RBMPs), provided for under Directive 2000/60/EC (Water Framework Directive) and implemented in Italy through Legislative Decree No. 152 of 3 April 2006, Part III. These six-yearly plans are explicitly subject to periodic review, based on the outcomes of environmental monitoring and changes in the chemical or ecological status of water bodies^[45]. They follow a decision-making cycle articulated in planning, implementation, control and updating phases, and therefore constitute a clear case of administrative instrument structured around adaptive logic^[46].

A similar approach characterizes the River Contracts^[47], which are formally recognised by several Italian Regions – such as Lombardy, Piedmont and Emilia-Romagna – and promoted in the 2023 National Climate Change Adaptation Plan (PNACC). Although not regulated by a national statutory framework, River Contracts are voluntary governance instruments for integrated and sustainable watercourse management. They are based on open, multi-level planning processes and are subject to continuous monitoring and periodic reassessment of goals and actions. Their flexible and iterative structure allows for the ongoing recalibration of interventions based on observed evidence, making them paradigmatic examples of adaptive governance tools^[48].

Another cornerstone of the system is the national environmental and water monitoring infrastructure, governed by Articles 118 et seq. of Legislative Decree No. 152/2006 and coordinated by the National System for Environmental Protection (SNPA), established by Law No. 132 of 28 June 2016. The SNPA ensures systematic monitoring of the qualitative status of surface and groundwater, providing the empirical basis for evidence-informed public decisions. This system is designed to support a mode of administration that dynamically responds to environmental data, fully aligning with adaptive management principles^[49].

Within the climate policy domain, the National Climate Change Adaptation Plan (PNACC), adopted by Ministerial Decree of the Ministry of Environment and Energy Security on 21 December 2023, introduced sector-specific strategies – including those related to water resource management – grounded in risk-based planning and the periodic revision of adopted measures. Similarly, regional adaptation plans (e.g. Lombardy, Tuscany, Veneto) include specific provisions for flexible and resilience-oriented water management policies.

The regulatory framework also provides for temporary or renewable water abstraction authorizations, governed by Articles 142 et seq. of Legislative Decree No. 152/2006 and further regulated at the regional level. In particular, within the agricultural and industrial sectors, many regions issue abstraction permits that are conditional upon specific environmental parameters. These permits may be suspended or adjusted automatically if water availability falls below pre-defined thresholds, as set out in regional Water Protection Plans or concession acts. Such authorizations are typically valid for a limited period and renewable only upon verification of environmental and hydrological compatibility, thereby introducing adaptive conditionality.

In situations of water scarcity or drought, the Italian legal system allows for the adoption of flexible and derogatory measures through ordinances issued by Civil Protection authorities and regional or river basin institutions. As illustrated by the Decree of the President of the Council of Ministers of 4 July 2022 (declaring a national state of emergency due to drought), such measures may include the redistribution of water resources, the prioritization of essential uses, the reduction of abstraction rights, and the temporary redefinition of minimum environmental flow requirements. While formally classified as emergency instruments, they reflect key features of adaptive governance, enabling timely and proportionate administrative responses to contingent conditions.

This evolution reflects a broader and more profound transformation: the transition from a model that regarded water as an inexhaustible economic resource, freely available for exploitation, to a conception in which the administration assumes a custodial function over water as a finite and vulnerable public asset. In the era of «custodial demaniality of waters»^[50], the legal framework is gradually realigning around the principle of responsible stewardship, rather than commodified use. This paradigm shift^[51] imposes dynamic adaptation mechanisms that account for the variability of water availability^[52] and competing demands, requiring the public administration to continuously rebalance interests in light of ecological sustainability, climate variability and social priorities.

Overall, despite the absence of a unified legal framework for adaptive administration, the water sector represents one of the most advanced areas in the Italian legal system for the experimentation of flexible, cyclical, participatory and monitoring-oriented instruments. Italian water governance is therefore already structurally aligned with the principles of adaptive management and increasingly consistent with the evolving European and international climate resilience agenda. It offers concrete institutional models that reflect continuous learning, empirical feedback, and procedural responsiveness – core tenets of a genuinely adaptive public administration.

5. Elements that may be drown from the MAMPA Model

In assessing which elements of the U.S. proposal may be in line with the principles of the Italian legal system, it first emerges that the most relevant element of the U.S. proposal is the structuring of a procedural dual track, which flanks – and does not replace – the traditional administrative procedure^[53] an adaptive administrative procedure, applicable exclusively in contexts that would actually benefit from it^[54]. It is evident that the implementation of such an approach would necessarily require an explicit abilitatio legis^[55], presumably by supplementing Law 241/1990 with a chapter dedicated to “adaptive administrative procedures”^[56].

Systematic Coordination: While Italian law already possesses numerous pre-adaptive institutions, these operate independently without systematic coordination. The MAMPA model offers valuable insights for creating unified procedural frameworks that can standardize adaptive approaches while respecting sectoral specificities.

Formal Recognition: The existing pre-adaptive institutions often operate without explicit recognition of their adaptive nature. Formal incorporation of adaptive procedures into Law 241/1990 would provide legal certainty and systematic coherence to practices that already exist but lack unified theoretical foundation.

Enhanced Monitoring Systems: While sectors like pharmaceuticals have developed sophisticated monitoring capabilities, many other areas could benefit from the structured data collection and analysis frameworks proposed in MAMPA, building upon existing digital infrastructure initiatives.

Participatory Mechanisms: The cooperative paradigms already present in pharmaceutical authorizations and health accreditation could be systematized and extended through MAMPA-inspired structured stakeholder engagement processes that enhance both democratic legitimacy and technical effectiveness.

6. Implementation Challenges and Pathways

The systematic analysis of pre-adaptive institutions reveals that the Italian legal system possesses a more extensive foundation for implementing adaptive administrative procedures than initially apparent. However, the full realization of this potential depends on the resolution of several systemic challenges that span regulatory, operational, organizational, and cultural dimensions.

From a regulatory perspective, the transposition of emergency-based mechanisms proposed under the MAMPA model raises important issues of compatibility with the foundational principles of the Italian legal tradition^[57].

Beyond legal alignment, the implementation of an adaptive model requires operational prerequisites: robust digital infrastructure and specialized administrative expertise capable of managing monitoring systems and translating data into responsive governance^[58]. Adaptive management, by its very nature, relies on the continuous acquisition and analysis of high-quality data measured against predetermined indicators, without which any real-time recalibration of administrative action would remain purely theoretical.

Adaptive procedures also demand decision-making mechanisms that are both agile and transparent – capable of allowing timely regulatory adjustments without undermining essential procedural safeguards^[59]. This requires a shift in performance evaluation: rather than assessing compliance with fixed rules, emphasis should be placed on consistency with overarching goals and the effectiveness of embedded learning processes.

The fragmentation of existing pre-adaptive mechanisms across sectors calls for the development of shared procedural standards^[60]. Adaptive practices currently emerge independently, lacking systemic coordination – a limitation that must be addressed to ensure coherence and effectiveness. One might object that, since Italian law already employs adaptive procedures that function effectively in practice, the creation of a general model would be superfluous. Yet such instruments operate on a sectoral and uncoordinated basis, without ensuring systemic coherence or uniform safeguards. The added value of a general framework lies precisely in transforming dispersed practices into a transparent and typified procedure, capable of reconciling flexibility with legality and accountability. The limited reception of MAMPA in the United States reflects the rigidity of the APA and the absence of legislative reform, rather than the irrelevance of adaptive management as such.

Equally crucial is the cultural transformation needed to shift from static decision-making to adaptive governance. This requires not only updated training but also institutional incentives for continuous learning and cooperation, as demonstrated in the pharmaceutical sector.

The full implementation of an adaptive system^[61] also implies an evolution in judicial review and legal protection^[62]. In this context, the principle of “procedural legality” – as the strict regulation of the exercise of discretion – assumes a central compensatory function vis-à-vis the flexibility of adaptive decisions.

A related concern, raised in the U.S. debate, is the risk of “immunity” of adaptive measures from judicial oversight, due to the absence of a clearly identifiable final agency action. This problem explains why Craig and Ruhl proposed a separate adaptive track punctuated by predetermined checkpoints for review. Such an approach, however, cannot be transposed into the Italian legal order without adjustment^[63]. Article 113 of the Constitution enshrines the principle that all administrative acts are subject to judicial review, thereby excluding the possibility of insulating implementing measures from legal scrutiny. The challenge, therefore, is not whether adaptive decisions should be reviewable, but how judicial control can be exercised without undermining the very logic of flexibility – by concentrating review on decisive stages of the adaptive process, or by assessing compliance with the procedural guarantees that structure the adaptive track.

Among the most significant ex post tools that could be reconciled with adaptive logic are second-degree measures – namely revocation and ex officio annulment – already governed in the Italian legal system^[64]. These instruments, while traditionally conceived as corrective powers, could be reinterpreted in adaptive terms as tools of periodic legal realignment.

Parallel to this structural aspect, the criteria developed in MAMPA for determining when it is appropriate to adopt an adaptive administrative procedure deserve particular attention. The objective prerequisites identified by the U.S. proposal – complexity of the regulated system, predictive difficulty, definability of overall objectives, identifiability of monitorable indicators, and availability of multiple management options – could constitute normative parameters for circumscribing the scope of application of a possible Italian adaptive procedure. These criteria, rather than derogating from the principle of typicality, could reconfigure it in an evolutionary sense, by inscribing flexibility within a strictly typified procedural framework.

These reflections set the stage for a more detailed proposal for the Italian legal system, which is developed in the following section.

7. Designing an Adaptive Track: A Proposal for Italy

Convergences with evolving trends in our administrative law suggest that an adaptive model, suitably reformulated, could integrate effectively into the Italian legal system. The view of the administration as a continuous “manager” rather than a punctual decision maker reflects the evolution of the administrative role in contemporary society, which is increasingly oriented toward the dynamic care of complex interests^[65]. This evolution is particularly relevant in sectors characterized by rapid technological, environmental or socioeconomic change, such as water concessions, integrated environmental authorizations and administrative titles in the telecommunications and energy sectors, where the inadequacy of the static model is already fully evident.

As mentioned above, a prerequisite for the implementation of an adaptive administrative paradigm lies in the adaptation of technological and organizational infrastructure. In fact, the transition to procedural models based on the systematic collection and analysis of data requires significant enhancement of administrative digitization, which has already begun with the measures envisaged in the NRP (Mission 1), as well as an investment in the training of public personnel, geared toward developing skills in data analysis and management of complex systems. Without such operational prerequisites, even the most refined regulatory model would risk remaining an empty statement.

In light of these considerations, a future Italian model of adaptive administrative procedure^[66] could preserve the conceptual structure of MAMPA – distinction between phases, detailed initial planning, implementation cycles and evaluation – reformulating it in a manner compatible with the fundamental principles of our legal system. Such a procedural innovation would entail, as a consequence, a transformation of the administrative measure as well, which would acquire adaptive characteristics while maintaining compatibility with the principle of legality and typicality, the protection of citizen’s trust and the constitutional guarantees of access to justice^[67].

In this sense, the adaptive procedure does not abandon the principle of typicality but reinterprets it through procedural predetermination: flexibility of content is offset by a rigid typification of procedural phases and adjustment mechanisms^[68].

The most innovative aspect of this approach would be the overcoming of the “episodic” conception of the measure in favor of a “procedural” vision, in which the measure is no longer the concluding act of a procedure, but the initiation of a continuous management process, in which the primacy of knowledge over the measure is definitively recognized^[69] . This evolution reflects the need to govern in the face of permanent uncertainty, shifting the center of gravity of administrative legality from the substantive definition of outcomes to the procedural discipline of change.

This implies a central role for the principle of proportionality^[70], which serves as a safeguard against arbitrariness: each adaptation must be demonstrably appropriate, necessary, and balanced in light of the public interest pursued and the interests affected.

Moreover, the managerial decision to activate an adaptive track – being an expression of technical discretion – should itself be subject to judicial review, based on the verification of factual and legal prerequisites. This reinforces the need for procedural transparency and rationality from the earliest stages of the decision-making process.

7.1. The Dual Track Approach: When to Choose Adaptive Procedures

The implementation of adaptive administrative procedures in the Italian context cannot and should not represent a wholesale replacement of traditional procedural models. Rather, following the logic underlying the MAMPA proposal, the most promising approach lies in developing a dual track system where adaptive procedures complement rather than substitute conventional administrative processes, each applied according to specific contextual requirements and predetermined criteria.

The fundamental question that emerges is not whether to adopt adaptive management, but rather when and under what circumstances it becomes preferable to traditional approaches. The experiences gleaned from existing pre-adaptive institutions in the Italian system – pharmaceutical authorizations, healthcare accreditation, and hydroelectric concessions – suggest that certain objective characteristics of the regulatory context make adaptive approaches not merely advantageous but practically necessary^[71].

The pharmaceutical sector exemplifies this need. The inherent unpredictability of drug effects across diverse populations, combined with the continuous evolution of scientific knowledge, makes a static authorization model not merely inefficient but potentially dangerous^[72].

The normative framework for this dual track approach would require clear legislative criteria that guide administrative authorities in choosing between conventional and adaptive procedures. These criteria should not be left to discretionary evaluation but rather established through objective parameters that ensure predictability and prevent arbitrary application.

As anticipated, the objective prerequisites developed in the MAMPA model – system complexity, predictive difficulty, definable goals, measurable indicators, and multiple management options – could serve as normative benchmarks for determining when to adopt an adaptive track^[73]. Far from undermining the principle of typicality, these criteria would redefine it in an evolutionary sense, by embedding flexibility within a strictly typified procedural framework.

This framework would ensure that the discretion to choose the adaptive track remains legally bounded and subject to judicial review. The MAMPA model’s requirement for a preliminary rulemaking process to activate adaptive management reflects the understanding that this procedural choice significantly affects the rights and expectations of regulated parties. In the Italian context, this could translate into a requirement for a reasoned administrative determination that explicitly justifies the choice of adaptive procedures based on documented evidence of the inadequacy of traditional approaches.

7.2. An Italian Framework for Adaptive Administrative Procedures

Building upon the experiences identified in Section 4, an Italian framework for adaptive procedures would necessarily reflect the constitutional and administrative law principles that distinguish our system from the American model. Rather than broad administrative discretion, the Italian approach would emphasize procedural rigor within flexible substantive frameworks, ensuring that adaptivity serves effectiveness without compromising legal certainty or fundamental rights.

The procedural architecture of an Italian adaptive track would unfold through distinct but interconnected phases that maintain the essential characteristics of administrative legitimacy while enabling responsive management^[74].

Drawing upon the successful experiences of existing pre-adaptive institutions, these phases could be operationally structured as follows:

Phase 1 – Adaptive Planning: The initial phase establishes comprehensive monitoring parameters following the Integrated Environmental Authorization (AIA) model, incorporates mandatory technical-scientific expertise consultation (as demonstrated by AIFA’s approach), and predetermines objective thresholds for triggering reviews. This phase differs from traditional planning by focusing on adaptation criteria rather than fixed outcomes. This phase should also include the prior identification of key indicators that signal either the achievement of goals (“finished indicators”) or the need to revise or terminate the plan (“abort indicators”)^[75]. Such upfront definitional effort offsets substantive flexibility by embedding it in a rigidly structured procedural framework^[76].

Phase 2 – Structured Monitoring: Continuous oversight through integrated information systems modeled on pharmacovigilance databases, mandatory periodic reporting requirements (as healthcare accreditation), and automated control mechanisms proven effective in hydroelectric concessions management^[77].

Phase 3 – Evidence-Based Adaptation: Activation through objective parameter triggers or motivated stakeholder requests, enhanced procedural guarantees including extended observation periods and mandatory independent expert involvement, and specific evidence-based justification requirements that demonstrate clear causal links between collected data and proposed modifications.

Phase 4 – Controlled Implementation: Gradual and proportionate modifications that allow for effect monitoring and course correction, qualified legitimate expectation protection^[78] through safeguard clauses for existing investments, and systematic monitoring of adaptation effects to enable institutional learning.

A further essential component of this model would be the introduction of so-called evaluative pause points: predefined time intervals at which a comprehensive review of the entire management plan is conducted, potentially leading to its continuation, revision, or termination.

Such mechanisms enhance legal predictability while allowing for structural flexibility, converting change from an episodic event into a planned phase of the procedure.

To ensure both certainty and flexibility, adaptive procedures must distinguish between stable and modifiable components of the measure. The initial planning phase should explicitly classify which elements are subject to revision and which are to remain unchanged, establishing legal certainty not by freezing outcomes, but by regulating how and when they may evolve.

In this perspective, the principle of procedural legality emerges as the primary constitutional guarantee: by strictly regulating the conditions, procedures, and effects of adaptive discretion, the law preserves the predictability of administrative action even when outcomes remain open-ended.

Participation mechanisms^[79], inspired by MAMPA, could accompany not only the initiation of the procedure but also each review phase, ensuring transparency, accountability, and democratic legitimacy throughout the adaptive cycle.

This model illustrates that adaptivity and legality are not antithetical. On the contrary, by shifting legal determinacy from the substance of the measure to the structure of the procedure, the adaptive approach allows the administration to govern complexity while remaining accountable and constrained by law^[80].

7.3. Organizational and Technical Prerequisites for Implementation

The transition to adaptive administrative procedures requires more than legal framework modifications; it demands fundamental organizational transformations that address both technical capabilities and administrative culture.

The experiences of AIFA in pharmaceutical regulation and AGENAS in healthcare accreditation demonstrate that successful adaptive management depends critically on the integration of scientific expertise within administrative processes and the development of sophisticated information systems capable of supporting continuous monitoring and analysis. These models show that adaptivity is not simply a question of regulatory openness, but of structured and intelligent administration based on iterative learning and empirical responsiveness.

Adaptive administration relies on integrated information ecosystems that not only collect and validate data but also enable predictive analysis, feedback loops, and timely intervention protocols. In this respect, real-time monitoring systems – like those already operational in pharmacovigilance – represent an essential prototype for scaling adaptive governance across different sectors.

The development of such systems requires significant investments in digital infrastructure and data management tools, many of which are envisaged under Italy’s National Recovery and Resilience Plan (NRRP)^[81].

The development of technical competencies represents perhaps the most challenging aspect of implementing adaptive procedures. Traditional administrative training emphasizes legal compliance and procedural correctness, skills that remain essential but prove insufficient for managing complex adaptive systems. A new generation of public officials will need hybrid skills: legal reasoning combined with data literacy, scientific interpretation, and systems thinking^[82].

Equally important is the evolution of the administrative mindset. Adaptive governance requires public officials to recognize uncertainty not as a failure of planning, but as a structural condition to be managed through institutional learning and iterative adjustment.

This cultural shift implies rethinking the very nature of discretion: no longer the space between rigid rules, but the structured ability to recalibrate measures in light of new evidence – under procedural guarantees and within legally predefined boundaries.

The PNRR’s emphasis on administrative digitalization provides a crucial foundation for these developments, but adaptive management requires more sophisticated information systems than those typically envisioned in digital transformation initiatives^[83]. Real-time monitoring, predictive analytics, and integrated data management become essential tools for effective adaptive administration rather than mere efficiency enhancements. The farmacovigilanza system’s sophisticated database architecture and analytical capabilities offer a proven model for scaling these technologies across different administrative domains.

Without such technical and cultural prerequisites, even the most coherent normative innovation would remain inoperative.

8. Concluding Reflections

The analysis developed throughout this study suggests that the introduction of adaptive administrative procedures in Italy represents neither a radical departure from existing administrative traditions nor a simple importation of foreign models. Rather, it emerges as a natural evolution of institutional practices that have already demonstrated their effectiveness in managing complex regulatory challenges while respecting fundamental constitutional principles.

The dual track approach outlined here provides a basis for reflecting on how to balance innovation and tradition, procedural flexibility and legal certainty, administrative effectiveness and democratic accountability within the Italian legal system. Building on the empirical foundations offered by existing pre-adaptive institutions – pharmaceutical authorizations, healthcare accreditation, and environmental management – this proposal offers a framework for exploring the conditions under which adaptive management might be integrated into systems that prioritize procedural rigor and constitutional compliance. In this perspective, the adaptive model should not be viewed as a deviation from the rule of law, but as its evolution under the pressure of complexity. Adaptive procedures relocate legal guarantees: instead of freezing substantive content, they ensure accountability through strict procedural discipline, predefined criteria, and transparency obligations.

The principle of legality – reinterpreted as procedural legality – retains its function as a safeguard against arbitrariness, by binding adaptive discretion to conditions and methods defined by law. The judicial protection, too, must adapt: the decision to activate the adaptive track and each significant modification of the administrative title should be open to review, ensuring that flexibility does not translate into opacity.

Moreover, legitimate expectations, in an adaptive context, should be no longer tied to the immutability of outcomes, but to the stability and predictability of the procedural framework. Citizens and economic actors could reasonably rely on the rules that govern possible adjustments, even if the measures themselves evolve.

Perhaps most significantly, the Italian experience suggests that adaptive management need not compromise the rule of law but can instead represent its evolution to meet contemporary challenges. The shift from substantive to procedural predetermination, the enhancement of participatory mechanisms, and the sophisticated integration of scientific expertise all point toward a model of administrative action that is simultaneously more responsive to complexity and more respectful of democratic values.

The pharmaceutical authorization system’s success in managing scientific uncertainty through systematic monitoring and evidence-based adaptation provides compelling evidence that regulatory flexibility and legal predictability can coexist when properly structured. Similarly, the healthcare accreditation system’s ability to maintain quality standards while enabling institutional learning demonstrates that continuous evaluation and adaptive improvement can strengthen rather than weaken administrative effectiveness.

These experiences point toward a broader transformation in the role of public administration, from the mechanical application of predetermined rules to the intelligent management of complex systems under conditions of uncertainty. This transformation does not abandon the fundamental principles of administrative law but rather extends them to new contexts and challenges, ensuring that public administration can serve the public interest effectively in an era of rapid technological, environmental, and social change.

Future research should further explore how this procedural paradigm might be formalized within the Italian legal system, including the possible introduction of adaptive titles and administrative plans governed by typified, reviewable, and participatory mechanisms.

1. This article is based on research conducted within the framework of the PRIN 2022 project “Permanent Transition and Adaptation of Administrative Measures”, Project code: 2022YCT5JF. Funded by the European Union – NextGenerationEU. The author is a member of the Research Unit at the University of Insubria. ↑
2. M. Cafagno, Analisi economica del diritto e ambiente. Tra metanarrazioni e pragmatismo, in Dir. econ., 2, 2019, pp. 157-180; J. Franzen, E se smettessimo di fingere? Ammettiamo che non possiamo più fermare la catastrofe climatica, Torino, 2020. In this regard see: C.S. Holling, Adaptive Environmental Assessment and Management, Wiley, Chichester, 1978, a seminal text that first systematized the concept; C.J. Walters, Adaptive Management of Renewable Resources, MacMillan, New York, 1986; K.N. Lee, Appraising Adaptive Management, in Conservation Ecology, 3(2), 1999, p. 3; B.K. Williams, Adaptive Management of Natural Resources – Framework and Issues, in Journal of Environmental Management, 92(5), 2011, pp. 1346-1353; L. Rist, B.M. Campbell, P. Frost, Adaptive Management: Where Are We Now?, in Environmental Conservation, 40(1), 2013, pp. 5-18; C.R. Allen, J.J. Fontaine, K.L. Pope, A.S. Garmestani, Adaptive Management for a Turbulent Future, in Journal of Environmental Management, 92(5), 2011, pp. 1339-1345; D. Armitage, M. Marschke, R. Plummer, Adaptive Co-management and the Paradox of Learning, in Global Environmental Change, 18(1), 2008, pp. 86-98; M.J. Westgate, G.E. Likens, D.B. Lindenmayer, Adaptive Management of Biological Systems: A Review, in Biological Conservation, 158, 2013, pp. 128-139 ↑
3. F. Fracchia, Transizioni: il punto di vista del diritto amministrativo, Napoli, 2024. ↑
4. The inadequacy of the current model of administrative procedure is particularly evident in a few areas: A) the management of water concessions. In this regard see E. Boscolo, Politiche idriche adattive nella stagione della scarsità. Dall’emergenza alla regolazione, in Il Piemonte delle Autonomie, 3, 2022; Id., Water Resources Management in Italy: Institutions, Laws and Approaches, in P. Turrini, A. Massarutto, M. Pertile, A. Carli (eds.), Water Law, Policy and Economics in Italy, London, 2021, 105; Id., Le politiche idriche nella stagione della scarsità. La risorsa comune tra demanialità custodiale, pianificazioni e concessioni, Milano, 2012. B) Environmental authorizations in contexts of rapid climate change: the integrated environmental authorization (IEA), while providing mechanisms for periodic review, is not structured to deal effectively with the emergence of new scientific evidence or the occurrence of changes in baseline environmental conditions. The consequence is a system that struggles to balance the requirements of title stability with those of environmental protection, generating uncertainty for both economic operators and the community. C) Long-term measures in sectors of high technological innovation: think of concessions for the development of telecommunications networks, issued in a technological context destined to change radically over the duration of the concessionary relationship. The impossibility of predicting ex ante all technological developments, combined with the rigidity of the administrative title, generates allocative inefficiencies and delays in the implementation of innovations.In all these cases, traditional tools-particularly second-order measures-often prove inadequate, generating uncertainty for economic operators and procedural burdens for administrations. An adaptive procedural approach would overcome the cycle of continuous revocation and reissue of measures, reducing procedural costs and the incidence of litigation. In addition, ab origine structured adaptivity could offer greater predictability to practitioners through transparent and predefined mechanisms for adaptation, rather than episodic and often emergency interventions. Moreover, the proposal for an adaptive model aligns with recent reforms in digitization and administrative simplification. The availability of real-time data and the automation of some decision-making processes can effectively support a more dynamic approach to the management of administrative titles. ↑
5. The goal to be pursued is to ensure legal certainty that does not coincide with absolute immutability, distinguishing between an invariable core of the measure and elements that can be modified according to changes in the context. ↑
6. C.S. Holling, Adaptive Environmental Assessment and Management, John Wiley & Sons, Chichester, 1978, seminal text that first systematized the principles of adaptive management in ecological sciences. ↑
7. C.J. Walters, Adaptive Management of Renewable Resources, MacMillan, New York, 1986, first systematic application of adaptive management to renewable natural resource management. ↑
8. Robert A. Schroeder Distinguished Professor of Law. ↑
9. David Daniels Allen Distinguished Chair in Law, Joe B. Wyatt Distinguished University Professor (2024-25), Director, Program on Law and Innovation, Co-Director, Energy, Environment and Land Use Program. ↑
10. R.K. Craig, J.B. Ruhl, Designing Administrative Law for Adaptive Management, in Vanderbilt Law Review, Vol. 67, No. 1, 2014, pp. 1-87,; R.K. Craig, et al., A proposal for amending administrative law to facilitate adaptive management, in Environmental Research Letters, Vol. 12, No. 7, 074018, 2017. ↑
11. The adaptive approach has already found effective applications primarily in natural resource management. The Comprehensive Everglades Restoration Plan in Florida made it possible to manage a complex ecosystem by reconciling conservation, water supply and flood protection through clear objectives, measurable indicators and periodic review of strategies. On that experience see A.J. LoSchiavo, R. G. Best, R. E. Burns, S. Gray, M. C. Harwell, E. B. Hines, A. R. McLean, T. St. Clair, S. Traxler, J. W. Vearil, Lessons learned from the first decade of adaptive management in comprehensive Everglades restoration, in Ecology and Society 18(4): 70, 2013, http://dx.doi.org/10.5751/ES-06065-180470. In Europe, the Room for the River program in the Netherlands has adopted flexible flood defense strategies based on continuous monitoring and phased interventions. On this experience see S. Herk, Adaptive co-management and network learning in the Room for the River program, in Journal of Environmental Planning & Management, 2013. The water concession management system in Spain is also an interesting example, with automatic review mechanisms in case of significant changes in the availability of the resource, implementing a form of “programmed flexibility” that reduces legal uncertainty while adapting to changes. The reference is to the National Hydrological Plan, which introduced the concept of Drought Management Plans (DMPs), which are to be drafted by “Water Agencies” (i.e. Basin Authorities – RBAs). These plans include (a) drought identification (definition of indicators and monitoring), (b) programs and measures to be implemented, (c) management options, and (d) a follow-up system. Once a drought event is identified, DMPs need to identify the most appropriate mitigation measures, which need to be adjusted according to the predetermined drought thresholds. ↑
12. J. B. Ruhl, J. Salzman, Ecosystem Services and Federal Public Lands: A Quiet Revolution in Natural Resources Management, in University of Colorado Law Review, 2020, p. 91; L. Rist, B.M. Campbell, P. Frost, Adaptive management: where are we now?, in Environmental Conservation, 40(1) 2013, pp. 5-18; M.J. Westgate, G.E. Likens, D.B. Lindenmayer, Adaptive management of biological systems: A review, in Biological Conservation, 158, 2013, pp. 128-139; B.K. Williams, Adaptive management of natural resources – framework and issues, in Journal of Environmental Management, 92(5) 2011, pp. 1346-1353; C.R. Allen, J.J. Fontaine, K.L. Pope, A.S. Garmestani, Adaptive management for a turbulent future, in Journal of Environmental Management, 92(5) 2011, pp. 1339-1345; D. Armitage, M. Marschke, R. Plummer, Adaptive co-management and the paradox of learning, in Global Environmental Change, 18(1) 2008, pp. 86-98; K.N. Lee, Appraising Adaptive Management, in Conservation Ecology, 3(2) 1999, p. 3; C.J. Walters, Adaptive Management of Renewable Resources, MacMillan, New York 1986; C.S. Holling, Adaptive Environmental Assessment and Management, Wiley, Chichester 1978. ↑
13. V. International Institute for Applied Systems Analysis, Adaptive Environmental Assessment and Management, edited by C.S. Holling, 1, 1978. For a more recent summary of adaptive management theory, see L. H. Gunderson, C.S. Holling (eds.), Panarchy: Understanding Transformations in Human and Natural Systems, 3, 2002. See infra Part I.A (historical reconstruction of adaptive management). ↑
14. The relationship with uncertainty is an identifying feature of the adaptive method: while traditional approaches regard it as an element to be eliminated, the adaptive model treats it as a structural component of decision-making, to be managed through continuous learning. ↑
15. As highlighted in Lo Schiavo, A.J. LoSchiavo, R. G. Best, R. E. Burns, S. Gray, M. C. Harwell, E. B. Hines, A. R. McLean, T. St. Clair, S. Traxler, J. W. Vearil, Lessons learned from the first decade of adaptive management in comprehensive Everglades restoration, cited, the first “lesson learned” during a decade of adaptive management is the need to have «legislative and regulatory authorities that require the development of an adaptive management program are necessary to maintain funding and support to set up and implement adaptive management». ↑
16. The reference is to the Administrative Procedure Act (APA), the basic law governing the operation of federal administrative agencies in the United States, enacted in 1946. ↑
17. MAMPA is not current legislation, but an academic proposal that precisely identifies the structural obstacles that traditional administrative law poses to adaptive management and suggests concrete operational solutions. ↑
18. R.K. Craig, J.B. Ruhl, Designing Administrative Law for Adaptive Management, cit., p. 27 ss., make clear that the Model Adaptive Management Procedure Act (MAMPA) has never been enacted or implemented in the United States. Agencies experimenting with adaptive management have found themselves caught between public suspicion of “seemingly unbounded agency discretion” and judicial unease with the iterative “dial twiddling” inherent in adaptive protocols, thereby resorting to a diluted form of practice, labeled “adaptive management lite” (pp. 38-40). The authors emphasize, however, that this outcome reflects deeper structural obstacles: the Administrative Procedure Act’s framework of judicial review, premised on “final agency action”, is ill-suited to provisional and revisable decisions (pp. 27-30); the statute’s procedural requirements, including notice-and-comment rulemaking, do not easily accommodate continuous adjustment (pp. 31-34); and the tension between the APA’s guarantees of transparency and participation and the flexibility demanded by adaptive management constrains agencies from embracing a genuinely adaptive regime (pp. 35-38). In the absence of legislative reform to create a separate “adaptive management track”, these structural constraints have prevented the full implementation of adaptive management within the U.S. administrative system. ↑
19. The Model Adaptive Management Procedure Act (MAMPA) was conceived not as a replacement for the Administrative Procedure Act (APA), but as a parallel procedural statute of equal dignity. Under this proposal, agencies would retain the option of proceeding under the APA’s traditional front-loaded model or, where scientific uncertainty and the need for continuous monitoring justified it, of invoking an adaptive management track. In either case, the core principles of U.S. administrative law – legality, accountability, participation, transparency, and judicial review – would remain applicable, albeit reconfigured to accommodate iterative decision-making: participation would be distributed across defined stages rather than confined to a single notice-and-comment process; judicial review would be limited to specified checkpoints rather than triggered by every adjustment; and transparency would be ensured through ongoing reporting and monitoring. The fact that Congress has never enacted such a statute, leaving agencies constrained to practice only “adaptive management lite” within the confines of the APA (pp. 38-40), does not imply that the model was unnecessary. On the contrary, Craig and Ruhl argue that without such reform the full potential of adaptive management cannot be realized in U.S. administrative law. ↑
20. MAMPA specifies that «‘Adaptive management’ means a decision-making process based on the structured and iterative implementation of management measures, with comprehensive monitoring of relevant system indicators, in an effort to achieve specific management goals or objectives, reduce uncertainty, or increase knowledge about the system an agency is charged with managing». ↑
21. The MAMPA specifies that «‘Complex system’ or ‘system’ means a policy management context in which relevant social, economic, technological, biological, physical, and environmental components are numerous, diverse, and interconnected; exhibit mutual feedback as conditions change; and adapt to stressors, perturbations, and management measures over time, based at least in part on how other components within the policy management context respond». ↑
22. These definitions, in combination with the application criteria detailed in Section II (See especially Sec. II(D)(2) of the proposed articulation) precisely delimit the objective scope of application of the adaptive process, creating a selective filter for access to the «adaptive track». ↑
23. See the second section of MAMPA that defines the conditions for access to the «adaptive track». ↑
24. Administratively, federal agencies in the United States represent the operational arm of the government, responsible for the practical implementation of laws passed by Congress. Their distinctiveness lies in the concentration of quasi-legislative (issuing regulations), executive (enforcing rules) and quasi-judicial (resolving administrative disputes) powers. These institutions arise from the need for specialized expertise in complex areas such as environment, health, transportation or finance. Congress, through specific statutes, delegates authority to regulate these areas while defining the limits of their power. The American system balances the agencies’ operational autonomy with multiple oversight mechanisms: presidential oversight, congressional oversight, judicial review and public participation. This balance reflects the constant tension between the need for administrative efficiency and the need to keep agencies accountable to democratic and constitutional principles. ↑
25. The term rulemaking denotes, in the U.S. administrative system, the process by which federal agencies formulate, amend or repeal administrative rules (rules) of general application. The Administrative Procedure Act (APA) of 1946 provides for two main types of rulemaking: formal (formal rulemaking), which requires a quasi-judicial public hearing, and informal (informal rulemaking), also known as «notice-and-comment» proceedings, which is the one referred to by MAMPA. The latter involves: (1) publication of a Notice of Proposed Rulemaking in the Federal Register; (2) a public comment period for written comments; (3) consideration of comments received by the agency; and (4) publication of the final rule accompanied by an explanatory statement (statement of basis and purpose). This is an institution only partially comparable to the public consultation procedures provided in the Italian system for the adoption of regulatory or general acts, characterized by greater structuring and legal significance. See R.J. Pierce, Administrative Law Treatise, New York, 2023, pp. 561 ff.; M. Alberti, Comparative Administrative Law, Il Mulino, Bologna, 2019. ↑
26. Sections Three and Four of MAMPA regulate the initial and subsequent adaptive management plans, respectively. ↑
27. The Model Adaptive Management Procedure Act (Cf. especially Section 4(A) of MAMPA, items (1) through (4)) provides four circumstances for a return to regular administrative procedures: when the legislature expressly requires the termination of adaptive management; when the objectives or conditions specified by the legislature as prerequisites for terminating the adaptive approach are met; when the agency, which had independently chosen adaptive management, finds that it has fully achieved its purposes, generating needed information, resolving uncertainties, and stabilizing management objectives; when experience demonstrates the inadequacy of the adaptive approach, evidenced by repeated achievement of interruption indicators, significant changes in the system, or the emergence of information that makes adaptive management impractical. In all cases, the agency must formally justify the transition through a procedure that ensures transparency and participation. ↑
28. The phrase «committed to agency discretion by law» is a technical formula in U.S. administrative law for situations in which the legislature has deliberately removed administrative activity from judicial review. This formula is derived from Section 701(a)(2) of the American Administrative Procedure Act, which excludes from judicial review administrative actions that the law entrusts to agency discretion. In other words, in MAMPA, operational choices made during plan implementation are protected from judicial intervention. ↑
29. See Section Five of MAMPA. ↑
30. Mandamus is an extraordinary judicial remedy of Anglo-Saxon origin that allows for a judicial order directed at an administrative authority or public official to compel the performance of an official duty of a binding nature. In essence, it allows the court to order a public entity to perform an action that it is legally required to perform. In MAMPA, the mandamus proceeding is strategically reimagined as a tool for “bottom-up” control over the implementation of the adaptive management plan, which can be activated by private parties under strictly prescribed circumstances. Sections 5(D) and 5(E) of the enactment redefine its prerequisites, requiring proof «with clear and convincing evidence» of specific emergency conditions or the achievement of «abort indicators». This precise formulation and the adoption of an evidentiary standard intermediate between preponderance of evidence and beyond reasonable doubt reflect a balance between the need to ensure management effectiveness and the need to prevent irreversible damage to the regulated system.The distinctiveness of this institution in the context of adaptive management lies in its complementarity to the jurisdictional immunity of the implementation phase: while the latter protects the agency’s technical discretion, mandamus represents a “safety valve” that allows external intervention in borderline situations, preventing the degeneration of managerial autonomy into administrative arbitrariness. ↑
31. On environmental matters, see M. Cafagno, Principi e strumenti di tutela dell’ambiente come sistema complesso, adattativo, comune, Torino, 2007, 340. ↑
32. As pointed out with reference to urban planning law in E. Boscolo, Un catalogo di principi (operanti) per l’urbanistica in Riv. giur. ed., 2, 2024, pp. 118-119, the concepts of iterativity and adaptivity represent two fundamental principles that are radically transforming not only the architecture of plans, but also the entire planning process, which is assuming an essentially cyclical nature. These elements profoundly alter the traditional approach, leading to a system in which planning, implementation and review are intertwined in a continuous and circular process. ↑
33. On pre-adaptive institutions see the contributions in the Proceedings of the Conference “Change in the Role of Public Administration and Automatic Rebalancing Indices of the Administrative Relationship”, held in Como on 5 December 2024 at the University of Insubria, forthcoming. ↑
34. For an in-depth analysis of this instrument from an adaptive perspective, see V. Buratti, Pharmaceutical Authorizations with a Flexible Paradigm, in Proceedings of the Conference Change in the Role of Public Administration and Automatic Rebalancing Indices of the Administrative Relationship, held in Como on 5 December 2024 at the University of Insubria, forthcoming. ↑
35. The precautionary-reflexive paradigm of administrative power encompasses the flexibility of public action, the continuous redefinition of objectives supported by the administration’s ability to absorb an inherently mutable factual reality, and uninterrupted monitoring. On this point, see F. Foà, Il nuovo diritto della scienza incerta, in Diritto amministrativo, 3, 2022, p. 815; see also R. Ferrara, Il principio di precauzione e il “diritto della scienza incerta”: tra flessibilità e sicurezza, in Rivista giuridica urbanistica, 1, 2020, pp. 14-39; M. Renna, Le misure amministrative di enforcement del principio di precauzione per la tutela dell’ambiente, in Jus, 2016, no. 1, pp. 61-82; A. Barone, Il diritto del rischio, Milano, 2006; F. Trimarchi, Principio di precauzione e qualità dell’azione, in Rivista italiana di diritto pubblico comunitario, 2005, no. 2, pp. 1673-1707; F. de Leonardis, Il principio di precauzione nell’amministrazione del rischio, Milano, 2005; G. Manfredi, Note sull’attuazione del principio di precauzione del diritto pubblico, in Diritto pubblico, 3, 2004, pp. 1075-1107. ↑
36. L. Parona, L’influenza del diritto europeo sulla disciplina dei procedimenti amministrativi nazionali, in Rivista italiana di diritto pubblico comunitario, pp. 518-519, identifies – albeit with reference to environmental authorizations – several aspects of administrative action shaped by European Union law, including: verification of the continued validity of authorization requirements; procedures for the review and updating of authorization conditions; and the conduct of environmental inspections. ↑
37. Cfr. artt. 129-134 d.lgs. n. 219/2006. ↑
38. The Italian concept of ‘autotutela’, which allows the administration to annul or revoke its own measures. ↑
39. On this point, see N. Berti, La modifica dei provvedimenti amministrativi, Torino, 2022, p. 129, who highlights that such powers represent a «progressive and physiological modulation-specification of the same first-level function, which – precisely by virtue of a precautionary logic – appears incapable of crystallizing into a measure endowed with temporal stability». ↑
40. Article 30 of Legislative Decree No. 219/2006 allows, in certain cases, the granting of marketing authorization for a medicinal product even when clinical data are less complete than normally required, insofar as the benefit of immediate availability of the drug outweighs the risk arising from the need for additional data. ↑
41. For an in-depth analysis of this instrument from an adaptive perspective, see G. Mancini Palamoni, La valutazione sistematica e periodica nell’accreditamento sanitario, in Proceedings of the Conference Change in the Role of Public Administration and Automatic Rebalancing Indices of the Administrative Relationship, held in Como on 5 December 2024 at the University of Insubria, forthcoming. ↑
42. The procedure is governed by Articles 8-bis et seq. of Legislative Decree No. 502 of 1992, as subsequently amended. ↑
43. Cons. St., Sec. III, October 18, 2021, No. 6954. ↑
44. Of particular interest in this regard are the operational provisions on accreditation annexed to Regional Council Resolution (DGR) of Emilia-Romagna No. 886 of 6 June 2022, especially insofar as they regulate: the additional evaluation of results and outcomes (introduced by Regional Law No. 22 of 2019), which is carried out throughout the validity period of the accreditation through monitoring programs, the renewal decision, and ongoing monitoring activities. ↑
45. The obligation of six-yearly review of River Basin Management Plans is established by Article 117, paragraph 4, of Legislative Decree No. 152 of 3 April 2006, which transposes Article 13(7) of Directive 2000/60/EC (Water Framework Directive). The directive requires that management plans be reviewed and, if necessary, updated no later than 15 years after the publication of the first plan and every six years thereafter, taking into account the results of environmental monitoring carried out under Articles 8 and 15 of the same directive. ↑
46. This cyclical structure is consistent with the logic established by Directive 2000/60/EC, particularly Articles 11 to 15, which define an integrated river basin management process based on the formulation of programmes of measures (Art. 11), their implementation and monitoring (Art. 8), and the periodic review and updating of river basin management plans (Art. 13). In Italy, this model is implemented through Part III of Legislative Decree No. 152 of 3 April 2006, which formalises the sequence of planning (Art. 117 ff.), implementation (Art. 119), monitoring (Art. 118), and updating. ↑
47. As noted by C. Leone (I contratti di fiume negli argini del diritto amministrativo, Editoriale Scientifica, 2024, particularly pp. 124 ff.), monitoring allows for the verification of the progress of actions, the consistency with programmed objectives, and the impacts on the territory, including any unintended effects. Monitoring performs both diagnostic and corrective functions, involving interpretative data analysis, the identification of potential deviations, and the formulation of appropriate measures to realign the process. At the national level, it also serves as a tool to assess the institutional maturity of local actors and to guide territorial policies toward the full achievement of the environmental objectives set by European directives on water, floods, and habitats. ↑
48. For an in-depth examination of river contracts (contratti di fiume) from an adaptive perspective, see C. Leone, Adaptive management e sfide ambientali, currently in press. ↑
49. The design of the Italian water monitoring system reflects the principle that environmental policy and administrative decisions must be grounded in updated and reliable data. This logic is rooted in Directive 2000/60/EC, which places monitoring at the heart of the governance cycle.Specifically, Article 8 of the Directive requires Member States to establish comprehensive monitoring programs for surface waters, groundwater and protected areas, ensuring that the status of water bodies is regularly assessed and that measures can be adapted accordingly. The Italian transposition, codified in Article 118 of Legislative Decree No. 152 of 3 April 2006, created the national water monitoring network, which is integrated into the broader National System for Environmental Protection (SNPA), established by Law No. 132 of 28 June 2016. The SNPA – coordinated by ISPRA and composed of regional environmental agencies – performs systematic data collection and technical evaluations that feed directly into planning and regulatory processes. The legal framework thus institutionalizes a model of administration that is not merely data-informed but structurally responsive to environmental trends. Through this architecture, the Italian system embodies the key features of adaptive management: continuous monitoring, evidence-based adjustment of policies, and iterative governance aimed at achieving ecological objectives under conditions of uncertainty and change. ↑
50. For an in-depth examination of river contracts and water governance from an adaptive perspective, see E. Boscolo, Le politiche idriche nella stagione della scarsità. La risorsa comune tra demanialità custodiale, pianificazioni e concessioni, Milano, 2012, pp. 341 ff.; and Id., Water Resources Management in Italy: Institutions, Laws and Approaches, in AA.VV., Water Law, Policy and Economics in Italy, Springer, 2021, pp. 105 ff. ↑
51. That is, the transition from a conception of water as an inexhaustible resource subject to exploitation, to the idea of a “custodial” function of the administration in relation to the water resource. See E. Boscolo, Le politiche idriche nella stagione della scarsità. La risorsa comune tra demanialità custodiale, pianificazioni e concessioni, cit. ↑
52. The climate crisis has made hydrological instability a structural condition, introducing into water law a new legal vocabulary and a different regulatory rationality based on adaptivity and flexibility. See E. Boscolo, Politiche idriche adattive nella stagione della scarsità. Dall’emergenza alla regolazione, in Il Piemonte delle Autonomie, 2022. ↑
53. M. Nigro, Il procedimento amministrativo, 1957; A.M. Sandulli, Il procedimento amministrativo, Milano, 1964; G. Pastori, La procedura amministrativa, Milano, 1964; M. Nigro, Il nodo della partecipazione, in Riv. trim. dir. proc. civ., 1980, p. 229; F. Benvenuti, Funzione amministrativa, procedimento, processo, in Riv. trim. dir. pubb., 1952, pp. 118 ff; U. Allegretti, Legge generale sui procedimenti e moralizzazione amministrativa, in Scritti in onore di M.S. Giannini, III, Milano, 1988; G. Pastori, La disciplina generale del procedimento amministrativo, Milano, 1989, pp. 29 ff; A.M. Sandulli, Manuale di diritto amministrativo, Napoli, 1989, p. 642; G. Pastori, Interesse pubblico e interessi privati fra procedimento, accordo e auto amministrazione dei privati, in Scritti in onore di Pietro Virga, II, Milano, 1994, p. 1303; M. Nigro, Procedimento amministrativo e tutela giurisdizionale contro la pubblica amministrazione (il problema di una legge generale sul procedimento amministrativo), in M. Nigro, Scritti giuridici, Milano, 1996, III, p. 1429; S. Cassese, Il procedimento amministrativo: principi, regole, garanzie, Bologna, 1999; S.F.G. Scoca, Il procedimento amministrativo. Profili di diritto sostanziale e proceduale, Padova, 2003; G. Morbidelli, in L. Mazzarolli, G. Pericu, Alb. Romano, F.A. Roversi Monaco, F.G. Scoca (eds.), Diritto amministrativo, Bologna, 2005, p. 557; G. Morbidelli, Il procedimento amministrativo, in V. Cerulli Irelli (ed.), La disciplina generale dell’azione amministrativa, Napoli, 2006, 125; M. D’Alberti, La disciplina del procedimento amministrativo, Bologna, 2010; G. Della Cananea, Il procedimento amministrativo, Milano, 2014; G. Manfredi, Gli Scritti sul procedimento amministrativo dopo la legge 241 del 1990, in Amministrare, 2018; M. Clarich, Manuale di diritto amministrativo, Bologna, 2019, p. 237; G. Della Cananea, Mario Nigro riformatore: la legge sul procedimento amministrativo), in Nomos, 2023. ↑
54. In fact, as the authors of MAMPA themselves point out, adaptive management is not appropriate when: uncertainty is low (making investment in learning unnecessary), controllability is limited (making intervention ineffective), the risk of irreversible consequences is high (making experimentation dangerous), or when the issue involves fundamental normative values that are non-negotiable (such as civil rights or the protection of constitutional principles). ↑
55. The reference is clearly to the principle of legality; for a full examination of this principle, see AA.VV., Il principio di legalità nel diritto amministrativo che cambia, Atti del convegno di Varenna del 2008, Milano, 2008. ↑
56. One could, in other words, hypothesize an integration of Law 241/1990, with the introduction of a chapter dedicated to “adaptive administrative procedures”, in which to define the presuppositions, modalities, limits and protections of this new measures category. ↑
57. The emergency intervention mechanisms envisaged by the MAMPA model find a parallel in Italian law in the emergency powers regulated by Legislative Decree No. 1 of 2 January 2018 (Civil Protection Code). These powers, triggered by a formal declaration of a state of emergency, authorize the Civil Protection Department and special commissioners to adopt allocative and infrastructural measures in derogation of all applicable laws, including those governing ecological flow requirements and the hierarchy of water uses. The concrete application of these emergency mechanisms – as demonstrated by Regional Ordinance No. 917 of 24 June 2022 issued by the Lombardy Region, which declared a regional state of emergency due to water scarcity pursuant to Article 24(9) of Legislative Decree No. 1/2018 – shows how such emergency flexibility results in the temporary suspension of the structural guarantees associated with concession law, thereby undermining the legal certainty of existing entitlements.For an in-depth analysis of this issue in the context of hydropower concessions, see A. Cavalieri, Concessioni idroelettriche adattive, in Proceedings of the Conference Change in the Role of Public Administration and Automatic Rebalancing Indices of the Administrative Relationship, held in Como on 5 December 2024 at the University of Insubria, forthcoming. ↑
58. Dai, Xiaoyan and Webb, J. Angus and Horne, Avril C. and Rumpff, Libby and Palmer, Margaret A., Linking the Multiple Roles of Monitoring to the Adaptive Management Cycle to Support Environmental Flows, SSRN: https://ssrn.com/abstract=4973282 or http://dx.doi.org/10.2139/ssrn.4973282. ↑
59. This in turn necessitates a rethinking of performance evaluation metrics: rather than being based solely on compliance with predefined rules, they should focus on the coherence of administrative action with overarching objectives and on the quality and effectiveness of learning processes embedded within the procedure. ↑
60. According to the principle of substantive legality, not only must administrative powers be conferred by law, but their exercise must also be adequately regulated to prevent excessive and indeterminate discretion. See F. de Leonardis, I principi generali dell’azione amministrativa, in A. Romano (ed.), L’azione amministrativa, Giappichelli, 2016, with extensive references. Cf. Italian Constitutional Court, Judgment No. 115/2011. ↑
61. For a procedural architecture already aligned with adaptive logic, see the Environmental Impact Assessment (EIA) and Strategic Environmental Assessment (SEA) frameworks (Dir. 2011/92/EU and Dir. 2001/42/EC), both of which include cycles of monitoring, review, and adjustment. Ex multis, see E. Boscolo, La valutazione degli effetti sull’ambiente di piani e programmi: dalla VIA alla VAS, in Urb. app., 2002, p. 1121; F. Fracchia – F. Mattasoglio, Lo sviluppo sostenibile alla prova: la disciplina di VIA e VAS alla luce del D.Lgs. n. 152/2006, in Riv. trim. dir. pubbl., 2008, p. 143; L. Gallo, Valutazione ambientale strategica, in Dig. Disc. Pubbl., Agg., III, Torino, 2008, p. 946; G. Manfredi, VIA e VAS nel codice dell’ambiente, in Riv. giur. amb., 2009, p. 63; E. Boscolo, La VAS nel piano e la VAS del piano: modelli alternativi di fronte al giudice amministrativo, in Urb. app., 2010, p. 208; M. D’Orsogna, L. De Gregoriis, La valutazione ambientale strategica, in P. Dell’Anno, E. Picozza (dir.), Trattato di diritto dell’ambiente, II, Padova, 2013, p. 561; P. Chirulli, La valutazione ambientale strategica, a dieci anni dall’entrata in vigore del Codice dell’ambiente, in Riv. giur. urb., 2017, p. 121; E. Boscolo, La valutazione ambientale strategica e il riconoscimento della rilevanza dei servizi ecosistemici (del suolo), in M. Cafagno, G. Cavalieri (eds.), Servizi ecosistemici e tutela giuridica dell’ambiente, Milano, 2024. ↑
62. In this regard, constitutional jurisprudence has repeatedly affirmed the non-derogability of the principle of judicial protection against acts of the public administration. See, e.g., Constitutional Court, Sentence No. 140/2007. ↑
63. Article 113 of the Constitution guarantees that «against acts of the public administration judicial protection of rights and legitimate interests before the organs of ordinary or administrative justice is always permitted». This principle excludes the possibility of insulating administrative measures from judicial scrutiny. Any adaptive framework introduced in Italy would therefore have to ensure that the individual implementing measures of an adaptive plan remain subject to judicial oversight, albeit with procedural adjustments aimed at avoiding premature or fragmentary litigation.In other words, while adaptive management calls for flexibility and continuous correction, the Italian constitutional principle requires that such measures remain reviewable, at least at certain decisive stages. Rather than conferring immunity, the legal challenge is to design mechanisms of judicial review that are compatible with iterative decision-making – for example, concentrating review on key milestones or on the conformity of the process to the adaptive framework, rather than on every minor adjustment. ↑
64. Regulated by Articles 21-quinquies and 21-nonies of Law No. 241/1990. On revocation, see: M.S. Giannini, Diritto amministrativo, Milano, 1988, p. 594; V. Cerulli Irelli, Corso di diritto amministrativo, Torino, 2002, p. 609; E. Mauro, Osservazioni in tema di revoca del provvedimento amministrativo e di recesso dagli accordi procedimentali, in Foro amm. T.a.r., 2004, p. 556; S. Vasta, I procedimenti di revisione, in V. Cerulli Irelli (ed.), La disciplina generale dell’azione amministrativa. Saggi ordinati in sistema, Napoli, 2006, pp. 331-332; M. Immordino, Revoca degli atti amministrativi e tutela dell’affidamento, Torino, 1999; A. Lupo, Premesse per uno studio sulla revoca degli atti amministrativi, Milano, 2013, p. 109; G.C. Salerno, La revoca dei provvedimenti amministrativi ed i principi della funzione, Milano, 2014, pp. 118-120. On ex officio annulment, see: S. Romano, Annullamento (teoria dell’) nel diritto amministrativo, in Nuovo Dig. It., 1937, pp. 473 ff.; F. Benvenuti, Funzione amministrativa, procedimento, processo, in Riv. Trim. Dir. Pubbl., 1952, pp. 118 ff.; F. Benvenuti, Autotutela, in Enc. Dir., IV, 1959, pp. 537 ff.; E. Cannada Bartoli, Annullabilità e annullamento (dir. amm.), in Enc. Dir., II, 1959, pp. 485 ff.; M. Alì, Osservazioni sull’annullamento d’ufficio degli atti amministrativi, in Riv. Trim. Dir. Pubbl., 1966, pp. 527 ff.; G. Corso, L’efficacia del provvedimento amministrativo, Milano, 1969, pp. 206 ff.; G. Coraggio, Annullamento d’ufficio degli atti amministrativi, in Enc. Giur., II, 1988, pp. 4 ff.; D.U. Galetta, I procedimenti di riesame, in V. Cerulli Irelli (ed.), La disciplina generale dell’azione amministrativa, Napoli, 2006, pp. 393 ff.; V. Cerulli Irelli, Lineamenti di diritto amministrativo, Torino, 2017, pp. 494 ff.; M.A. Sandulli, Autotutela, in Libro dell’Anno del diritto 2016, Treccani, Roma, 2017, pp. 177 ff.; F. Costantino, L’annullamento d’ufficio del provvedimento, in A. Romano (ed.), L’azione amministrativa, Torino, 2016, pp. 869 ff.; R. Caponigro, Il potere amministrativo di autotutela, in Federalismi.it, 23, 2017; C. Deodato, L’annullamento d’ufficio, in M.A. Sandulli (ed.), Codice dell’azione amministrativa, Milano, 2017, pp. 1184 ff.; F. Francario, Profili evolutivi dell’autotutela (decisoria) amministrativa, in A. Rallo, A. Scognamiglio (eds.), I rimedi contro la cattiva amministrazione. Procedimento amministrativo ed attività produttive ed imprenditoriali, Napoli, 2016, pp. 9 ff.; A. Gualdani, Verso una nuova unitarietà della revoca e dell’annullamento d’ufficio, Torino, 2016; B. Mameli, L’istituto dell’annullamento tra procedimento e processo alla luce delle recenti novità normative, Torino, 2017; M. Ramajoli, L’annullamento d’ufficio alla ricerca di un punto di equilibrio, in Riv. giur. urb., 1, 2016, pp. 99 ff.; P.L. Portaluri, Il nuovo diritto procedimentale nella riforma della p.a.: l’autotutela (profili interni e comunitari), in Federalismi.it, 20, 2016; M. Allena, L’annullamento d’ufficio. Dall’autotutela alla tutela, Napoli, 2018; C. Napolitano, L’autotutela amministrativa. Nuovi paradigmi e modelli europei, Napoli, 2018; M. Immordino, I provvedimenti di secondo grado, in F.G. Scoca (ed.), Diritto amministrativo, Torino, 2021, pp. 318 ff.; R. De Nictolis, L’autotutela provvedimentale di annullamento degli atti illegittimi tra principi costituzionali, regole ed eccezioni, in giustizia-amministrativa.it. ↑
65. This evolution, moreover, is already reflected in the architecture of significant legislative reforms of the past decade, such as the services conference (Legislative Decree 127/2016), the discipline of the SCIA (Legislative Decree 126/2016) and the reorganization of the environmental impact assessment procedure (Legislative Decree 104/2017), which have progressively accentuated the procedural and dynamic dimension of administrative activity. ↑
66. It is particularly significant to note that examples of adaptive administrative procedures can be found in other European countries. For example, the Danish system, where the Environmental Protection Act (Miljøbeskyttelsesloven) in its consolidated version provides in Article 41a for a system of periodic review and updating of environmental permits. Even more developed are the mechanisms in the European Union legal system, where periodic review and adjustment of decisions are structural elements in many areas: the EU Regulation 2017/625 on official controls in the food sector provides in Art. 9 for periodic adjustment of controls on the basis of risk, while the Directive 2010/75/EU on industrial emissions provides in Art. 21 for periodic review of integrated environmental permits, with adjustment of conditions where necessary. ↑
67. In this context, the principle of proportionality, elevated to a criterion-guide of administrative adaptability, would assume a crucial role. As already highlighted by case law (Cons. St., Ad. Plen., n. 8/2017), this principle implies a dynamic and contextualized assessment of the relationship between means and ends of administrative action, which lends itself well to governing discretion in contexts of uncertainty and complexity. ↑
68. The principle of legal typification of administrative acts (principio di tipicità) as it is known implies that the effects produced by measures are only and exclusively those predetermined by law. Jurisprudence tends to interpret the principle of typicality in an elastic manner: the circumstance that an administrative act does not fall under some of the typical patterns of acts provided for in the matter does not in itself entail its illegitimacy since, where a specific formal act is not expressly required, the principle of freedom of forms applies. Likewise, the inclusion of incidental clauses in the administrative act is considered legitimate, provided that they do not alter the typical structure and function of the measure.This perspective would overcome the apparent antinomy between typicality and adaptability. Typicality in contemporary administrative law could thus not be limited to content but also embrace method, in other words, move “from content to method”, valuing the predetermination of procedures and safeguards over the rigid ex ante definition of all elements of the measure. ↑
69. However, the resistance that such a paradigm shift might encounter in the Italian administrative context cannot be underestimated. The traditional bureaucratic culture, oriented toward formal compliance rather than effective management, and the fragmentation of competencies among different levels of government could represent significant obstacles to the implementation of adaptive models. The introduction of the latter should therefore be accompanied by appropriate change management measures and, possibly, sectoral experiments that demonstrate their effectiveness before generalization. ↑
70. The principle of proportionality expresses the need for administrative action to pursue the ends set by the law with the least sacrifice of the interests involved, i.e., the appropriateness of the means to the end to be pursued. It is framed among the principles of the Community system codified with the reference to the European principles in Art. 1 of Law No. 241/1990 and enhanced by administrative jurisprudence (see Cons. St., 26 February 2015, n. 964). Cf. on this point: A.M. Sandulli, Il procedimento amministrativo, cit.; Id., Il principio di proporzionalità, Padova, 1998, 5; S. Cognetti, Principio di proporzionalità. Profili di teoria generale e di analisi sistematica, Torino, 2011; D.U. Galetta, Principio di proporzionalità e sindacato giurisdizionale nel diritto amministrativo, Milano, 1998; E. Buoso, Proporzionalità, efficienza e accordi nell’attività amministrativa, Padova, 2012. ↑
71. Drawing from these empirical foundations, the decision to activate an adaptive track should be governed by the presence of structural complexity and irreducible uncertainty that render traditional static approaches inadequate. ↑
72. See § 4.1 above. The AIFA model of conditional marketing authorization and post-marketing surveillance (pharmacovigilance) illustrates a mature example of adaptive regulatory practice. The model demonstrates how procedural flexibility can coexist with legal certainty through predefined adjustment mechanisms and systematic monitoring. ↑
73. On the criteria for activating the dual track, see Section II(D) of the MAMPA, which identifies eight objective parameters for adopting adaptive procedures: (i) the complexity of the system to be regulated; (ii) the difficulty of predicting its responses to administrative actions, especially when the development of detailed information could improve future actions; (iii) the presence of unknowns or uncertainties related to the system; (iv) the need to regulate or manage significant components of the system; (v) the identification of definable management objectives; (vi) the availability of measurable indicators; (vii) the possibility of multiple management options; (viii) the ability to observe system responses within timeframes compatible with periodic reviews.The analysis of Italian pre-adaptive institutions demonstrates the spontaneous application of similar criteria: in the pharmaceutical sector, the complexity of biological systems and the unpredictability of adverse reactions (criteria i, ii, iii) justify pharmacovigilance mechanisms and conditional authorizations; in health accreditation, the need to manage service quality (criterion iv) through definable objectives (criterion v) and measurable indicators (criterion vi) translates into systematic periodic evaluations; in hydroelectric concessions, the variability of environmental and climatic conditions (criteria ii, iii) requires multiple management options (criterion vii) and the ability to monitor over time (criterion viii) to adapt the terms of the concession. These examples confirm that the criteria developed in the U.S. context find empirical correspondence in the Italian experience, suggesting the possibility of their normative systematization to guide the procedural choice between traditional and adaptive tracks. ↑
74. Even traditional administrative procedure, as the structured path to the final measure, is widely recognized in Italian legal scholarship as the core of administrative action: «the complex event preceding the act (which goes by the name of administrative procedure) actually represents the heart of administrative activity and as such cannot but be juridicized through the identification of rules that regulate its performance and guarantee respect for the civil values of our society» (G. Morbidelli, in L. Mazzarolli, G. Pericu, Alb. Romani, F. Roversi Monaco, F.G. Scoca (eds.), Diritto amministrativo, II, Monduzzi, Bologna, 2001). ↑
75. Certainty does not necessarily mean a lack of flexibility: in the adaptive context, in fact, the same seems to be achieved through the predetermination of the conditions justifying adjustments, the prior definition of adjustment procedures, the distinction between stable and modifiable elements of the measure, and the predictability of the procedure, if not of the specific result. ↑
76. In this regard, it seems interesting to recall the jurisprudence of the Council of State, which has pointed out on several occasions that «The concrete achievement of the purposes for which public power is attributed cannot postulate itself, in a democratic system, except through the observance of the procedure specifically prepared for this purpose. Compliance with the rules of the procedure is placed as a guarantee for citizens, who see their subjective position affected by the exercise of public powers, and for the public administration itself, whose purposes can be said to be concretely pursued through an administrative action that has developed in compliance with the rules that govern its development», Cons. St., 21 August 1993, n. 586. ↑
77. See also X. Dai, J.A. Webb, A.C. Horne, L. Rumpff, M.A. Palmer, Linking the Multiple Roles of Monitoring to the Adaptive Management Cycle to Support Environmental Flows, in SSRN. ↑
78. The compatibility of a procedural model based on “continuous management” with the legitimate expectations of third parties raises a fundamental tension. In “traditional” administrative law, legitimate expectations are anchored to the finality and stability of individual decisions: third parties rely on the presumption that once an administrative measure is adopted, it will remain in force unless revoked or annulled. By contrast, adaptive management – and the procedural framework envisaged by the MAMPA – replaces the notion of definitiveness with a regime of provisionality, in which decisions are explicitly subject to ongoing monitoring and adjustment. This does not necessarily negate legitimate expectations, but it redefines them. Expectations would no longer attach to the immutability of a single decision, but to the predictability and transparency of the adaptive process itself – e.g., the existence of clear triggers for revision, published monitoring protocols, and predefined stages at which participation and review are guaranteed. In such a system, third parties could legitimately expect not stability of outcomes, but stability of procedure: that agencies will adhere to the adaptive track, disclose data, and follow the prescribed checkpoints for revision. Therefore, while a continuous management model challenges the classic conception of legitimate expectations tied to final decisions, it can remain compatible with those expectations if the law provides sufficient procedural guarantees to make the adaptive process itself reliable, foreseeable, and legally constrained. ↑
79. In this regard, see C. Leone, Adaptive management and environmental challenges, in the Proceedings of the Conference “Change in the Role of Public Administration and Automatic Rebalancing Indices of the Administrative Relationship”, held in Como on 5 December 2024 at the University of Insubria, forthcoming. ↑
80. See § 4.1 and 4.2 above. The adaptive procedures developed by AIFA and AGENAS – through conditional authorizations, pharmacovigilance systems, and periodic accreditation reviews – provide concrete examples of structured flexibility grounded in legal discipline. When AIFA establishes the framework for pharmacovigilance, it predetermines not the specific modifications that may be required – these cannot be known in advance – but rather the types of evidence that may trigger modifications, the procedural steps required for such modifications, and the limits within which changes may be made. ↑
81. See in particular Mission 1, Component 1 (“Digitalization, Innovation, and Security in Public Administration”). ↑
82. This, in turn, calls for a revision of public employment frameworks and training programs, introducing multidisciplinary curricula capable of addressing complexity and uncertainty in regulatory contexts. ↑
83. In particular, the digitization of processes is an unfailing prerequisite for the implementation of adaptive models. As also highlighted in the National Recovery and Resilience Plan (Mission 1, Component 1 “Digitization, Innovation and Security in PA”) and the recent amendments to the Digital Administration Code (Legislative Decree 82/2005), digital transition is an essential tool for modernizing the administrative apparatus. An adaptive process would require digital platforms capable of: collecting and processing data in real time; ensuring interoperability between different information systems; ensuring transparency through automated data publication; and facilitating stakeholder participation, including through forms of digital consultation. Administrative jurisprudence has already recognized the importance of digitization to ensure efficiency and transparency (see Cons. St., 25 November 2021, n. 7883), elements that would become even more crucial in an adaptive context. ↑