Thursday, September 29, 2011

McLaughlin on Conservation Easements and Merger

Nancy McLaughlin (Utah) has made another fine contribution to our understanding of the use of long-term land protection devices with her essay Conservation Easements and the Doctrine of Merger, 77 J. Contemp. Probs ___ (forthcoming 2011).  Here's the abstract:

Conservation easements raise a number of interesting legal issues, not the least of which is whether a conservation easement is automatically extinguished pursuant to the real property law doctrine of merger if its government or nonprofit holder acquires title to the encumbered land. This article explains that merger generally should not occur in such cases because the unity of ownership that is required for the doctrine to apply typically will not be present. This article also explains that extinguishing conservation easements that continue to provide significant benefits to the public through the doctrine of merger would be contrary to the conservation and historic preservation policies that underlie the state enabling statutes and the federal and state easement purchase and tax incentive programs. 

Jim K.

September 29, 2011 in Conservation Easements, Property, Property Rights, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 20, 2011

Owley & Rissman on Distributed Graduate Seminars

Jessica Owley (University at Buffalo School of Law) and Adena Rissman (Wisconsin-Madison, Dept. of Forest & Wildlife Ecology) have posted Distributed Graduate Seminars: An Interdisciplinary Approach to Studying Land Conservation, forthcoming in the Pace Environmental Law Review (PELR).  The abstract:

Adapting to the many changes associated with climate change is an increasingly important issue and nowhere more so than in efforts to conserve private land. Interdisciplinary distributed graduate seminars conducted in Spring 2011 at six universities investigated whether current land conservation laws and institutions appear up to the task of protecting land in the context of change and avenues for improving the adaptive capacity of such institutions.

Distributed graduate seminars are courses coordinated among multiple universities. They begin with a core of interested faculty who organize graduate students at their universities to collect or analyze dispersed data. This article gives a brief introduction to distributed graduate seminars and then details the experience and insights gained conducting such a seminar for land conservation and climate change. The distributed graduate seminar offers advantages by allowing for the synthesis of diverse data, the integration of multiple disciplinary perspectives, and the person-power enabled by student research. For students, the distributed seminar provides opportunities to engage with a broader academic community, benefit from new perspectives, and contribute in a meaningful way to a large endeavor.

Their seminar is a great idea, and an ambitious way to take advantage of the inherent interdisciplinarity in the land use field.  The paper is part of the forthcoming PELR special issue from the Practically Grounded conference on teaching land use and environmental law.  More to come. 

Matt Festa

July 20, 2011 in Conferences, Conservation Easements, Environmental Law, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 28, 2011

Conservation Easement Outlines

For those interested in conservation easements, if you haven't seen Jessica Jay's  work its worth checking out. She is a practitioner who teaches Land Conservation Law at VLS during the summers and gave a great lunch lecture today on "When Perpetual is Not Forever: The Challenge of Changing Conditions, Amendment & Termination of Perpetual Conservation Easements."  There is a lot of ink on this subject and she does a great job keeping up-to-date on how states and the IRS manage and might manage amendments to conservation easements. Here are a couple of her helpful outlines:

Conservation Easements and Tax Benefits Outline

Conservation Easement Drafting Guidance Outline

Kat Garvey

June 28, 2011 in Conservation Easements, Lectures | Permalink | Comments (1) | TrackBack (0)

Monday, April 25, 2011

Doremus (and many more) on Adaptive Management

Holly Doremus (Cal-Berkeley) collaborated with nine other scholars and two staff members from the Center for Progressive Reform to produce Making Use of Adaptive Management. Here's the abstract:

Over the last two decades, natural resource scientists, managers, and policymakers have increasingly endorsed “adaptive management” of land and natural resources. Indeed, this approach, based on adaptive implementation of resource management and pollution control laws, is now mandated in a variety of contexts at the federal and state level. Yet confusion remains over the meaning of adaptive management, and disagreement persists over its usefulness or feasibility in specific contexts.

This white paper is intended to help legislators, agency personnel, and the public better understand and use adaptive management. Adaptive management is not a panacea for the problems that plague natural resource management woes. It is appropriate in some contexts, but not in others. Drawing on key literature as well as case studies, we offer an explanation of adaptive management, including a discussion of its benefits and challenges; a roadmap for deciding whether or not to use it in a particular context; and best practices for obtaining its benefits while avoiding its potential pitfalls. Following these recommendations should simultaneously improve the ability of resource managers to achieve management goals determined by society and the ability of citizens to hold managers accountable to those goals.

The nine other scholars listed as co-authors (Andreen, Camacho, Farber, Glicksman, Goble, Karkkainen, Rohlf, Tarlock and Zellmer) make this white paper an all-star production. As an environmental 'greenhorn', I found the explanation of the concept of adaptive management straightforward and compelling. The case studies illustrate not only best practices but cautionary tales belying elevation of adaptive management as a panacea for the protection of all complex ecosystems.

Jim K.

April 25, 2011 in Coastal Regulation, Conservation Easements, Environmental Law, Environmentalism, Sustainability, Water, Wetlands | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 2, 2011

Long on Sustainability v. Sprawl in the Post-Public-Lands West

Jerry Long (Idaho) explores the causes of and reasons for a community's commitment to sustainable land-use planning in his recently posted Private Lands, Conflict, and Institutional Evolution in the Post-Public-Lands West, 28 Pace Env. L. Rev. ___ (forthcoming 2011).  Here's the abstract:

As rural communities face amenity-driven population growth and globalizing culture and economic systems, the process by which those communities imagine and implement desired futures grows increasingly complex. Globalization- and technology-facilitated and amenity-driven population growth increases the value of place-bound benefit streams – including land – promoting increased levels of physical development and a changed built environment. At the same time, globalizing culture and evolving local demographics might alter local land-use ideologies, yielding a preference for resource protection and more sustainable local land-use regimes. This article engages in a theoretical and empirical exploration that seeks to answer a single question: Why, in the face of competing land-use ideologies, might a community choose to adopt a more resource-protective, or resource-sustaining, land-use regime? Ultimately, it is only upon witnessing the actual effects of previous choices on the ground – including most significant, real harm to valued social or natural amenities – that a community is able to imagine and implement a land-use regime that can protect the amenities that community values.

Jim K.

March 2, 2011 in Community Design, Community Economic Development, Comprehensive Plans, Conservation Easements, Density, Development, Environmental Law, Environmentalism, Federal Government, Globalism, Land Trust, Las Vegas, Local Government, Planning, Scholarship, Smart Growth, Sprawl, Subdivision Regulations, Suburbs, Sun Belt, Sustainability, Urbanism, Water, Zoning | Permalink | Comments (0) | TrackBack (0)

Sunday, February 27, 2011

Teaching Outside the Box

We're now entering week 4 of the spring semester at Buffalo. I'm very excited about my classes this e. Both of which are firsts for me.

I am teaching Natural Resources Law. This is a fun course and I have a great group of students. I was a bit taken aback when I learned how many of my students are from Buffalo. Place matters for many reasons, but it is especially strange feeling to teach a public lands class without one person in the room from west of the Mississippi.

I am also teaching a distributed graduate seminar called Land Conservation in a Changing Climate. "A distributed what?" you say? Yep, a distributed graduate seminar. I believe it is the first seminar of its type in the legal academy. A group of eight professors at six different schools (Buffalo, Denver, Indiana,South Carolina, Stanford, Wisconsin) are all teaching a course with roughly the same title at the same time. We have similar but not identical syllabi and take slightly different approaches to our classes. Although law students probably dominate the classes, we have opened up our classes to graduate students in other departments. All students are examining case studies, collecting data, and inputting results of interviews and research into a joint system. At the end of the semester, both the faculty and students will have access to the collected data. I am excited about this project for many reasons. First, our students are learning how to work with social scientists and understand scientific reports and papers. Second, students are actually collecting data and interviewing people who are conserving land. Third, the data collection will enable us to think both about our own states and do comparative work. Studying conservation easements is often challenged by the lack of available data. We are specifically examining how conservation easements will react (or not) to climate change. I think this project will be good for the students of course, but I also hope they learn things that will help others.

I will be speaking more about this project in May at Pace's Practically Grounded Conference (and elsewhere). If any of you are engaged in (or know of) similar projects, please let me know!

- Jessica Owley

 

February 27, 2011 in California, Charleston, Climate, Conferences, Conservation Easements, Environmentalism, Land Trust, Lectures, New York, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tribes, Land, and the Environment

I just returned from a stimulating one-day conference at American University's Washington College of Law called Tribes, Land, and the Environment. Organized by Ezra Rosser and Sarah Krakoff,  it was a great mix of speakers on Indian law generally and environmental issues affecting/involving tribes significantly. Land use gets even more complicated when we add tribes to the mix and need to address the special issues of working with sovereign entities and federal law. I presented some of the initial findings of a larger study I am undertaking on how tribes use conservation easements. Specifically, I was examining instances where tribes hold conservation easements over land off-reservation. Much like other governments [as I have written about here], tribes use conservation easements to protect areas and ecological amenities outside their jurisdictions. I have been particularly intrigued by (1) whether tribes need to adhere to state law when entering into such agreements and (2) considering how the use of conservation easements interacts with tribes' views of property and the natural world. Intriguing stuff. If you see any examples of tribal holders in your necks of the woods, please let me know!

Many of the presentations at the conference, will appear in an edited volume of the same name.

- Jessica Owley

February 27, 2011 in Books, Conferences, Conservation Easements, Environmental Justice, Environmental Law, Federal Government, Local Government, Property, Property Rights, Property Theory, Race, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 22, 2011

Virtual Speaker Series

One of the many exciting things I am engaged in this month is Mercer's Environmental Law Virtual Guest Speaker Series. Students at Mercer and elsewhere listen to recorded presentations on different topics by law professors across the country. Unsurprisingly, my presentation is about conservation easements. Starting Monday February 21, my lecture was available to the students. All week students are asking me questions in an online discussion format. This is a great project by Mercer, giving students access to law professors across the country with different specialties and creating a flexible learning environment that takes advantages of new technologies.  [I gave my presentation using powerpoint's new narration function which I found alternatively straightforward and infuriating.]

The discussion is a bit harder than answering questions after a talk because writing down answers in a public forum always requires a bit more thinking than the off-the-cuff answers we give when answering live questions immediately following a talk. BUT the format also lends itself to a higher caliber of questions. When students have the opportunity to think about a presentation and write questions at their leisure, the questions are intriguing and thoughtful. Almost every questions so far has pushed me more than I generally expect from students. Kudos to Mercer  and Steve Johnson for this annual program.

- Jessica Owley

February 22, 2011 in Conferences, Conservation Easements, Environmental Law, Land Trust, Property, Property Theory, Scholarship, Servitudes, Teaching | Permalink | Comments (0) | TrackBack (0)

Sunday, February 20, 2011

Interdisciplinary Interactions

February has been a busy but exciting month for me. I have agreed to a few speaking engagement and have found all of them to be worthwhile and stimulating. I spoke about my research on the Enforceability of Exacted Conservation Easements at the Albany Junior Scholar Workshop (and will be speaking on it again at the upcoming ALPS Annual Meeting). I also presented my research on Tribal Conservation Easements at the Buffalo Junior Faculty Forum (and will be speaking at it again at the upcoming Tribes, Land, and the Environment Conference at American University). I wrote earlier about how helpful I find junior faculty events and have really benefited from my colleagues at Buffalo at elsewhere who took the time to give me feedback on my work.

In the midst of these legal speaking events, I also spent a Friday afternoon presenting my research to Buffalo's Geography Department at their weekly colloquium. It's wonderful to be part of a big university where opportunities to speak and work with colleagues in other departments abound. Land Use and Environmental Law present multiple avenues for intersections and interactions.  The Geography Department faculty and graduate students asked me questions that law profs never would have come up with. My TA from the Geography Department is helping me map conservation easements in a GIS database. While I appreciate the feedback from law professors, the benefits of speaking to a broader crowd are plentiful. Next stop -- Urban and Regional Planning

- Jessica Owley

February 20, 2011 in Conferences, Conservation Easements, Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, February 19, 2011

Landowners Ignorant About Encumberances on Their Land

It is perhaps not surprising to many of us that landowners don't understand the encumberances on their land. If someone has never heard the term "conservation easement" before, it's not surprising that they don't understand what it means when they see it with their deed. One would hope, however, that you would find out before buying the property.

An article in yesterday's Washington Post gives examples of landowners who are uninformed about the nature of the restrictions on their land. Although the Post writer doesn't place blame, the official at the County Planning Office quoted in the article is not hesitant about pointing the finger at real estate agents.

Although this article doesn't present heartening news for the land conservation community, I was glad to see this in print. I have been hearing stories like this from landowners for a few years now (folks who just didn't realize there were encumberances on their land). While our land recording systems appear to ensure landowners will get notice of the restrictions on their land, we see that it doesn't always happen. This article highlights that such notice may not be meaningful if purchasers don't understand the deeds they are reading.

Not sure what the answer is to concerns like this. Fewer deed restrictions perhaps, but that is not very satisfying. We could require real estate agents to clearly explain all the provisions in a deed, but it doesn't look like it would have helped here. The couple that the story focuses on read and signed the conservation easement indicating that they had reviewed it. Looks like this couple may turn to the courts for relief. Hope their lawyer is better than their real estate agent.

UPDATE ON 02/21:

The Washington Post has added (or maybe it was there all along but I didn't see it) a great graphic showing where the conserevation easement was. This case has sparked an interesting debate in the land conservation community about the appropriateness of protecting backyards in this way.

 

- Jessica Owley

February 19, 2011 in Conservation Easements, Land Trust, Planning, Real Estate Transactions, Servitudes | Permalink | Comments (0) | TrackBack (0)

Friday, February 18, 2011

Land Trust Sued Over Conservation Easement Enforcement (or lack thereof)

Those of us who study conservation easements don't have a wealth of case law to debate and scrutinize (query whether that is a bad or good thing). So perhaps it is understandable that we  get excitable when there is even a hint of litigation. According to a local newspaper, a couple in Pennsylvania has just sued a local land trust for failing to enforce a conservation easement. In this case, the landowner allegedly violated the conservation easement by clearing woodlands, building a stable, and keeping horses. The plaintiffs claim that the land trust has not adequately enforced the conservation easement.

There are several interesting issues here including two big ones:

(1) Who has standing to bring challenges regarding enforcement of a conservation easement? Here, the plaintiffs own adjoining land. Could the township intervene?

(2) what are a land trusts' enforcement obligations? Did create of the conservation easement create a charitable trust? Can they choose not to enforce a conservation easement? How much discretion do land trusts have in negotiating settlements or conservation easement amendments?

I'm sure the land trust community will be watching this one closely.

- Jessica Owley

February 18, 2011 in Caselaw, Conservation Easements, Land Trust | Permalink | Comments (0) | TrackBack (0)

Thursday, February 17, 2011

Tax Breaks For Conservation Easements May Get Even Sweeter

As some of you may know, I am obsessed with intrigued by conservation easements. A strong motivator for some conservation easements (but not all or even necessarily most) is the availability of federal income tax deductions. A current bill in the senate would make such donations even more alluring. 

The Rural Heritage Conservation Extension Act of 2011 would allow landowners to deduct up to 50% of the adjusted gross income for such donations (right now it is only a mere 30%).

- Jessica Owley

February 17, 2011 in Agriculture, Conservation Easements, Federal Government, Historic Preservation, Land Trust, Servitudes | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 8, 2011

Recent Article Highlights Need to Think Comprehensively About Land Conservation

A new article in the journal Conservation Biology, highlights the need to shift our way of thinking about preservation sites. As I (and many others) have noted elsewhere, climatic changes are likely to disrupt current land protection schemes. Many of our current land conservation strategies (including establishment of reserves and most uses of conservation easements) assume environmental stability. This assumption if inappropriate when studies increasingly demonstrate there will be large shifts in ecosystems and species habitat. The authors of Toward a Management Framework for Networks of Protected Areas in the Face of Climate Change demonstrate that there is a need to increase the resilience and robustness of our conservation areas and reassess our decisions regarding where protected lands should be and what the rules governing those areas should be. Although the study examines birds in sub-Saharan Africa, the ideas and cautions easily apply to decisions regarding land conservation in the United States and elsewhere.

Below is the authors’ abstract:

Networks of sites of high importance for conservation of biological diversity are a cornerstone of current conservation strategies but are fixed in space and time. As climate change progresses, substantial shifts in species’ ranges may transform the ecological community that can be supported at a given site. Thus, some species in an existing network may not be protected in the future or may be protected only if they can move to sites that in future provide suitable conditions. We developed an approach to determine appropriate climate change adaptation strategies for individual sites within a network that was based on projections of future changes in the relative proportions of emigrants (species for which a site becomes climatically unsuitable), colonists (species for which a site becomes climatically suitable), and persistent species (species able to remain within a site despite the climatic change). Our approach also identifies key regions where additions to a network could enhance its future effectiveness. Using the sub-Saharan African Important Bird Area (IBA) network as a case study, we found that appropriate conservation strategies for individual sites varied widely across sub-Saharan Africa, and key regions where new sites could help increase network robustness varied in space and time. Although these results highlight the potential difficulties within any planning framework that seeks to address climate-change adaptation needs, they demonstrate that such planning frameworks are necessary, if current conservation strategies are to be adapted effectively, and feasible, if applied judiciously.

 HOLE, D. G., HUNTLEY, B., ARINAITWE, J., BUTCHART, S. H. M., COLLINGHAM, Y. C., FISHPOOL, L. D. C., PAIN, D. J. and WILLIS, S. G. , Toward a Management Framework for Networks of Protected Areas in the Face of Climate Change. Conservation Biology, no. doi: 10.1111/j.1523-1739.2010.01633.x

- Jessica Owley

February 8, 2011 in Climate, Comprehensive Plans, Conservation Easements, Development, Environmental Law, Environmentalism, Smart Growth | Permalink | Comments (0) | TrackBack (0)

Monday, January 31, 2011

Introducing Jessica Owley

Owley Here at the Land Use Prof Blog we've been incredibly fortunate to have some really bright scholars willing to contribute--from getting Jim Kelly and Tony Arnold join the lineup, to several interesting guest bloggers, including Ken Stahl, McKay Cunningham, and most recently, Antonia Layard.  It's a new month (already!) and I'm pleased to announce a new guest blogger: Jessica Owley of the University at Buffalo Law School.

Jessica teaches environmental law, property, and land conservation at Buffalo.  She holds both a JD and a PhD in environmental science, policy, and management from Berkeley.  Before joining the faculty at Buffalo, Jessica practiced in the land use & environmental law group at a major law firm and taught at Pace Law School.  Her research interests are in land conservation, property rights, and using property tools for conservation in the context of climate change.  She has posted several interesting articles in recent months on the subject of conservation easements, including forthcoming pieces in the Stanford Environmental Law Journal, an ABA book on Greening Local Government, and Law and Contemporary Problems

We're excited to have Jessica join us this month, and we look forward to her thoughts and observations!

Matt Festa

January 31, 2011 in Climate, Conservation Easements, Environmental Law, Property, Property Rights, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 25, 2011

Owley on Conservation Easements at the Climate Change Crossroads

Jessica Owley (Buffalo) has posted Conservation Easements at the Climate Change Crossroads, forthcoming in Law and Contemporary Problems.  The abstract:

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.

This is another article from Professor Owley that challenges some prevailing views on conservation easements.  On a side note, I can hint that we might be hearing more from her soon in this space!

Matt Festa

January 25, 2011 in Climate, Conservation Easements, Environmental Law, Property Theory, Scholarship, Servitudes | Permalink | Comments (0) | TrackBack (0)

Monday, December 20, 2010

Conservation Easements - The view from the other side

The common law has long encouraged the use and development of land.

This policy favoring land use and development certainly made sense during America's infancy, when the country boasted seemingly inexhaustible stretches of land. But today you cannot find property that is not subject to zoning restrictions. What seemed unlimited is now increasingly scarce. Over-develpment generates multiple problems ranging from pollution to species endangerment. Forty million acres of land - larger than the state of Florida - were newly developed between 1992 and 2007.

One of the reactions to perceived over-development and receeding "wild" lands is the conservation easement, which is (generally speaking) a voluntary agreement to refrain from developing land. Much has been written about the effectiveness of this legal tool, but the arguments in this recent online publication seem disingenuous. The article characterizes the conservation easement as a clever tool wielded by a surreptitious government. The article warns private landowners to be wary of the conservation easement and the government's desire to restrict their rights.

Land trusts exist to remove private property from production.
They do this by acquiring ranch, farm, forest, or other private land either through donation, purchase, or by acquiring CEs to property as well as water. They act as unofficial arms of government agencies—third party intermediaries or ‘land agents’—and routinely flip (sell) donated as well as purchased land and CEs to these government agencies. When they do, they’re paid with tax dollars which, in turn, are used to purchase more private property.

The Conservation Easement is vulnerable to many legitimate criticisms; that it is a tool enabling a government conspiracy to rob private landowners should not be among them.

-McKay Cunningham

  

 

December 20, 2010 in Caselaw, Conservation Easements, Development, Environmental Law, Federal Government, Land Trust, Politics | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 9, 2010

Owley on Use of Conservation Easements by Local Governments

Jessica Owley (Buffalo) has posted another informative paper: Use of Conservation Easements by Local Governments, forthcoming in GREENING LOCAL GOVERNMENT, Patricia Salkin and Keith Hirokawa, eds., A.B.A. Publishing, 2011.  The abstract:

This chapter (which will be included in the forthcoming Greening Local Government book published by ABA Publishing and edited by Patty Salkin and Keith Hirokawa) briefly introduces conservation easements, explains how local governments can use them, and discusses the appropriate role and extent of their use. 

Conservation easements are nonpossessory interests in land restricting a landowner’s activities in a way that yields a conservation benefit. Local governments have been on the cutting edge of using conservation easements, engaging with them on multiple fronts. First, local governments hold conservation easements. This enables local governments to enforce individual agreements and prevent landowners from engaging in environmentally destructive practices. Second, as landowners, local governments encumber public land with conservation easements — affirming their commitments to land conservation. Finally, local governments promote conservation easements. By passing laws supporting and funding conservation easements as well as requiring exacted conservation easements for land-use permits, local governments employ mechanisms that increase the number of conservation easements in their communities. 

Conservation easements can protect environmental amenities and deserve praise for their individual nature and ease of establishment. However, conservation easements are static agreements locking in today’s land use preferences and understandings of the natural environment to the potential detriment of future generations with different goals or understandings of the natural world. Furthermore, although praised as an inexpensive method for governments to obtain land conservation, funding necessary for stewardship and enforcement could be significant. As development pressures and understandings of environmental degradation increase, the use of conservation easements by local governments is likely to continue to grow. Local governments should make use of this tool cautiously.

This paper is a helpful resource for practitioners and scholars in understanding the basics of conservation easements.  Along with Owley's forthcoming Stanford Environmental Law Journal piece, Changing Property in a Changing World: A Call for the End of Perpetual Conservation Easements, it cautions local government officials to be wary of the conservation easement as a panacea in pursuing environmental planning objectives.  

Matt Festa

November 9, 2010 in Conservation Easements, Environmental Law, Local Government, Property, Scholarship, Servitudes, Sustainability | Permalink | Comments (0) | TrackBack (0)

Sunday, November 7, 2010

Cunningham on Easements and the Environment

McKay Cunningham (Phoenix) has posted Oil and Water: Easements and the Environment.  The abstract:

The age of American environmentalism has arrived. Surveys show widespread public support for preservation policies, open spaces, and natural parks, while reflecting popular disdain for new development of wild lands. Federal and state governments have reacted to public sentiment by adding acreage to national preserves, increasing the budget for agencies tasked with preservation, and by enacting and enforcing pollution laws and regulations. 

Despite popular support and government-initiated efforts, forty million acres of land – larger than the state of Florida – were newly developed between 1992 and 2007. This paper addresses the historic and deeply rooted pro-development policy informing American property law. While critical in the country’s infancy, encouraging land use and development through legal constructs is less important and arguably detrimental now. Long-standing legal constructs encourage land use and as a result discourage conservation. Our need to develop wide swaths of wild land has changed; our common law has not. 

One area of property law, easements, fully embraces pro-development policies. The legal principles defining express easements, implied easements by necessity, easements by implied grant, and prescriptive easements champion the development of land while disfavoring parties that allow land to remain “idle.” The pro-development policy undergirding common law property tenets lacks a conservation counterbalance. This paper details several approaches that might curb pro-development bias in easement law.

Matt Festa

November 7, 2010 in Conservation Easements, Development, Environmental Law, Federal Government, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, October 28, 2010

Owley on Changing Property and the End of Perpetual Conservation Easements

Jessica Owley (Buffalo) has posted Changing Property in a Changing World: A Call for the End of Perpetual Conservation Easements, forthcoming in the Stanford Environmental Law Journal.  The abstract:

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.

Matt Festa

October 28, 2010 in Conservation Easements, Environmental Law, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 19, 2010

Owley Lippman & Levy on Preservation as Mitigation under CEQA

Jessica Owley Lippman (Buffalo) and David C. Levy (Morrison & Foerster) have posted Preservation as Mitigation Under CEQA: Ho Hum or Uh-Oh?, published in Environmental Law News, Vol. 14, No. 1, p. 18, 2005.  The abstract:

Many local, state, and federal environmental laws contain provisions requiring mitigation of environmental harms caused by development projects. One such law is the California Environmental Quality Act (CEQA). CEQA requires environmental review of projects that have a significant impact on the environment and require discretionary approvals from public agencies. CEQA prohibits agencies from approving projects as proposed if there are feasible alternatives or mitigation measures available that would substantially lessen the environmental impacts of the projects. 

This article reviews California cases regarding use of preservation of agricultural land as mitigation and concludes that the California courts have not yet developed a coherent position. In a few published cases, the California appellate courts appear to accept the notion that preservation can meet mitigation requirements without discussion. In some unpublished decisions where courts addressed the issue head on, they reached the opposite decisions.

There are only two acceptable techniques for mitigating environmental impacts that involve the loss, destruction, or significant alteration of unique resources such as land or habitat: creation and enhancement. However, most laws (including CEQA) define mitigation more broadly to include notions of avoidance, minimization, and preservation. Such techniques should not qualify as mitigation because these strategies should be elements of project design. When beginning a project that may have significant environmental impacts, one should seek to avoid and minimize those effects from the onset. After those steps, one would mitigate the remaining impacts through creation or enhancement. Preservation as mitigation is inappropriate because it admits that destruction of the amenity will occur. It results in an overall net loss of the amenity. It may prevent future impacts, but it does not address present problems.

Matt Festa

October 19, 2010 in Agriculture, Conservation Easements, Environmental Law, Scholarship | Permalink | Comments (0) | TrackBack (0)