The Increasing Privatization of Environmental Permitting

This article examines the increasing privatization of environmental law by taking a close look at mitigation measures in permitting programs. As mitigation has become an increasingly important element of permitting programs, permitting agencies have looked for outside organizations to help design, monitor, and enforce the mitigation projects. Thus, compensatory mitigation projects provide a good lens for examining the role of private organizations in environmental law. There are good reasons for drawing on the power of private organizations. They can provide flexibility and expertise as well as increased capacity. However, concerns regarding democracy and accountability arise when government agencies hand off duties to private actors. It is not clear that the private organizations have adequate oversight, and there are no clear mechanisms for stepping in when these organizations fail to perform (or inadequately perform) their conservation duties. This increasing privatization has largely occurred without a public debate regarding who is the appropriate entity to carry out and enforce environmental law. The privatization has gone unnoticed and under examined. Environmental conservation is a public duty, and we should be concerned with the increasing privatization of that task

Unforeseen Land Uses: The Effect of Marijuana Legalization on Land Conservation Programs

This Article explores the tension between land conservation and marijuana cultivation in the context of legalization. The legalization of marijuana has the potential to shift the locations of marijuana cultivation. Where cultivation need no longer be surreptitious and clandestine, growers may begin to explore sanctioned growing sites and methods. Thus, the shift to legalization may be accompanied by environmental and landuse implications. Investigating commercial-scale marijuana cultivation, this Article details how, in some ways, legalization can reduce environmental impacts of marijuana cultivation while also examining tricky issues regarding tensions between protected lands and marijuana cultivation. If we treat cultivation of marijuana the same as we treat cultivation of other agricultural crops, we gain stricter regulation of the growing process, including limits on pesticide usage, water pollution, wetland conversion, air pollution, and local land-use laws. Thus, legalization of marijuana should yield environmental benefits. And yet the story is, of course, more complicated than that. The strange status of marijuana as both a federally impermissible use and a stigmatized crop suggests that it will not fall under the same legal regimes as other agricultural products. In the realm of protected agricultural and conservation lands, a particular concern arises for land trusts grappling with proposals for marijuana cultivation. Where landowners receive federal tax benefits or land trusts rely upon federal laws for funding and legitimacy, the decision to grow marijuana on the land could have significant consequences. The Article reaches two main conclusions. First, in the absence of federal regulations, subnational governments should create and implement environmental and land-use regulations governing the cultivation of marijuana to ensure that legal grows do not continue the harmful practices involved with black market marijuana. Second, land trusts and agricultural protection organizations should not become involved with marijuana cultivation in any form while it remains illegal at the federal level. To do so puts both the land and their operations at risk

Changing Property in a Changing World: A Call for the End of Perpetual Conservation Easements

Increasing environmental problems, including those associated with climate change, highlight the need for land conservation. Dissatisfaction with public methods of environmental protection has spurred conservationists to pursue private options. One of the most common private land conservation tools is the conservation easement. At first blush, this relatively new servitude appears to provide a creative method for achieving widespread conservation. Instead, however, conservation easements often fail to accommodate the reality of our current environmental problems. These perpetual (often private) agreements lack flexibility, making them inappropriate tools for environmental protection in the context of climate change and our evolving understanding of conservation biology. This article addresses concerns with the widespread use of conservation easements, advocating for improved conservation easements and better decision making as to when to use conservation easements. A first step in rethinking our approach to the use of conservation easements is to shift from perpetual conservation easements to renewable term conservation easements. Although perpetuity is one of the defining aspects of most conservation easements, it is neither realistic nor desired. In their current static form, conservation easements are not receptive to change in ecology or society. Where conservation easements are of a limited duration, their economic, societal, and conservation value can be more readily assessed and considered when making land-use decisions. Additionally, many conservation easements are already beset with durability concerns. Instead of forcing a cumbersome and unrealistic perpetuity requirement on conservation easements, we should use agreements with a revisitation date. By shifting the initial assumption that these agreements will not be perpetual, we can create responsive agreements and make better decisions regarding when conservation easements are appropriate

Property Constructs and Nature\u27s Challenge to Perpetuity

Published as Chapter 4 in Environmental Law and Contrasting Ideas of Nature: a Constructivist Approach, Keith H. Hirokawa, ed.https://digitalcommons.law.buffalo.edu/book_sections/1036/thumbnail.jp

Keeping Track of Conservation

Throughout the world, governments require land protection in exchange for development permits. Unfortunately, oftentimes scant attention has been paid to these land protection programs after development. Agencies and permit applicants agree on mitigation rules, but there appears to be little follow-up. When we do not know where conservation is occurring and cannot determine the rules of mitigation projects, the likelihood that they will be successful or enforced diminishes. I journeyed to California in search of answers by tracing four mitigation plans associated with the Federal Endangered Species Act. While I anticipated some difficulties, the tale is more alarming than expected. The government entities involved struggled to locate and understand the permits themselves, let alone the details of the compensatory mitigation projects. A common land protection tool in this context is the conservation easement. These exacted conservation easements exchange public goods for private gain. Attempting to locate and understand these mitigation easements revealed pervasive problems with tracking mitigation in the United States. The federal agencies had trouble finding and understanding records. The county offices charged with recording property restrictions often had inadequate records of land use restrictions. These challenges exacerbate the accountability and enforceability concerns already associated with mitigation programs. Such uncertainty calls into question this method of environmental conservation. This Article highlights pressing concerns with our current mitigation paradigm and calls for reform of federal programs through promulgating new regulations and updating agency guidance. Furthermore, this project calls upon citizens and researchers to turn their eyes to mitigation programs generally and to question whether such programs truly compensate for the environmental harms they facilitate

From Citizen Suits to Conservation Easements: The Increasing Private Role in Public Permit Enforcement

The past 40 years have seen an increase in the involvement of private actors in environmental law. One of the best-known (and arguably best-loved) methods for public involvement is the citizen suit. This popular method of public enforcement of environmental permits (among other things) has been joined by the use of conservation easements. Conservation easements are increasingly used to meet permit mitigation requirements. When private nonprofits hold the exacted conservation easements, they assume the role of permit enforcers. It is their job to ensure that conservation easement terms are complied with, giving them oversight and control over one of the pivotal components of environmental permitting regimes. Land-trust-held exacted conservation easements privatize enforcement of environmental law, much as citizen suits do. However, exacted conservation easements differ from citizen suits in that they foreclose public enforcement instead of complement it. Use of exacted conservation easements would improve if we apply lessons about public involvement and information from our citizen suit tradition

Conservation Easements at the Climate Change Crossroads

The essence of a conservation easement as a static perpetual restriction is coming to a head with the understanding that the world is a changing place. This demonstration is nowhere more dramatic than in the context of global climate change. In response to this conflict, users of conservation easements face the decision of either (1) changing conservation easement agreements to fit the landscape or (2) changing the landscape to fit the conservation easements. Both of these options present benefits and challenges in implementation. Where conservation easement holders’ ultimate goal is to keep a maximum number of acres under protection from development, flexible conservation easements may present a viable and attractive method of protection. Where a specific conservation value or habitat is the concern, active management of the land may be more appropriate. As a further complication, both of these options are at odds with the essential nature of conservation easements. These conflicts lead to a third option: making different decisions about where and how to use conservation easements. This would likely lead to the conclusion that conservation easements are only desirable in a narrower category of purposes. This is, of course, dismaying to champions of conservation easements. Unfortunately, ensuring the long-term viability of conservation easements may entail omitting the very features that give conservation easements their strength