September 23, 2010
Korngold on Globalizing Conservation Easements
Gerald Korngold (New York Law School) has posted Globalizing Conservation Easements: Private Law Approaches for International Environmental Protection on SSRN. Here's the abstract:
For the past thirty years nonprofit organizations have revolutionized open space and habitat conservation in the United States through the use of conservation easements. Pursuant to legislation, nonprofits may now acquire and hold perpetual restrictions that prevent alteration of the subject land’s natural and ecological features. These rights can be held “in gross,” with the result that the nonprofit need not own land near the restricted property and can be based in a distant location.
Based on this success, proponents in more recent years have advocated the export of “conservation easements” from the United States to other countries. A vehicle like a conservation easement and having some or perhaps all of its attributes could be employed in other countries to achieve various local and national conservation goals. My thesis, however, is that while conservation easements could be a useful tool for preservation of land outside of the U.S., they may not be the most effective or suitable framework to advance conservation in all countries. Rather than pushing for adoption of an American style “conservation easement” elsewhere, other countries and American (and global) advocates of conservation devices should engage in a process to determine a given country’s appropriate conservation toolbox. That process should be free of American legal and conservation jargon and without a predisposition for U.S. legal structures, values, and policy choices. Each country must determine on its own whether private conservation restrictions meet its economic, social, and political realities and aspirations (many of which are quite different than the American experience reflected in American conservation easements) and what attributes the device should have on key issues such as duration, in gross enforcement, role of government, etc. These national and local goals can then be given life by finding an appropriate legal structure, ideally consistent with the country’s own jurisprudence and system.
This article will provide a framework of the major policy and legal issues that could, and in my view should, inform a country’s decision to adopt private conservation restrictions. These include considerations of cost, efficiency, preference for private vs. governmental actors, the benefits and costs of perpetual limits on land, public regulation of land as an alternative, the specter of neocolonialism in environmental controls, the nature and capacity of the country’s nonprofit sector, and the local legal system. Finally, the learning about conservation restrictions should be a two-way street, not just the export of American methods: the views of some other countries about governmental involvement in private conservation may teach valuable lessons to American jurisdictions about the need for an increased role of government and the public in certain aspects of the selection, modification, and termination of a some conservation easements.
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