Tuesday, November 18, 2014
Jessica Owley, Associate Professor, SUNY Buffalo Law School
Working Group II Summary for Policymakers, states:
Many terrestrial, freshwater, and marine species have shifted their geographic ranges, seasonal activities, migration patterns, abundances, and species interactions in response to ongoing climate change (high confidence). … While only a few recent species extinctions have been attributed as yet to climate change (high confidence), natural global climate change at rates slower than current anthropogenic climate change caused significant ecosystem shifts and species extinctions during the past millions of years (high confidence).
These most recent findings of the IPCC confirm something conservation biologists and other scientists have already been observing and writing about for years: climate change means landscape change. As the world warms and sea level rises, ecosystems will both shift and reconfigure. The most recent IPCC report designates this at its highest confidence level, stating that change has already occurred (and will continue to occur) and it will do so in virtually every type of landscape: terrestrial, freshwater, and marine life. As climate change results in changed landscapes, our strategies for how we interact and behave on the land has no choice but to shift as well. In particular, this essay focuses on what this means for land conservation and goals of protecting specific endangered species or ecosystems.
Current land conservation policies focus on static programs that assume land conserved today should be conserved in the future and the same conservation goals will be met across time scales. Little attention has been paid to how changes to the landscape will affect the priorities of conserved land or how land management processes or land conservation strategies will need to change in response to changes on the land. For example, a 2011 survey of seventy-three land conservation organizations (both nonprofit organizations and government agencies) across the United States that use conservation easements as a land protection mechanism found that while most organizations agreed that climate change was likely to impact not only their region but also their conservation efforts, few had taken or even planned to take active measures to respond to the likely changes. Indeed, the private land conservation movement has been dominated by the use of perpetual property tools that set the status quo as the conservation goal in perpetuity with few mechanisms to revisit that goal or to consider whether the current makeup the land will be either possible or desirable as climate change shifts landscapes.
The IPCC’s report discusses the benefit of different types of land uses (suggesting that certain types of development might be more harmful or that forestry could be a good thing if done right) but does not go so far as to discuss the legal mechanisms being used to protect and promote specific land uses. In the United States, conservation easements have become the favored tool for private land protection, and that trend is slowly spreading to other regions of the world (including other common law countries like Australia and Canada where property law tools are already similar to those in the United States, as well as places with other legal traditions like Latin America and Africa). Indeed, conservation easements are often the cornerstone of key climate change policies like REDD or sustainable agriculture where property agreements like conservation easements and other servitudes burden the land, requiring adherence to certain environmental standards. In fact, conservation easements may be seen as a way to ensure that carbon sequestration gains are realized (e.g., preventing forests from being cut down by subsequent landowners or prohibiting farmers from abandoning agricultural practices). 
Conservation easements, however, may be particularly ill-suited to a changing world without undergoing some changes themselves. Generally, a conservation easement defines today’s use of the land and requires perpetuation of that use. Instead, conservation easements should adopt adaptive management principles and create mechanisms that allow for things that might sound radical, such as changing management provisions or even possibly moving protected areas to follow species migrations. In some cases, a simple change may be convert perpetual conservation easements to term agreements that look more like conservation leases. This could allow conservation organizations to continually assess the conservation value of protecting the property and consider shifting levels of encumbrance on landowner activities.
In addition, land conservationists need to recognize not only that conservation easements aren’t the only tool presently in their tool box but they need to work on making adding tools to their kit. The current embrace and growth of conservation easements demonstrates the possibility for developing new public and private tools to meet community land protection needs. Already groups are experimenting with (and scholars are beginning to write about) using options differently, making payments for protection of ecosystem services, and exploring uses of endowments or annuities for land protection. Moreover, private contract and payment-based tools will likely prove inadequate on their own. Regulatory prohibitions on harmful activities are needed to meet goals of both mitigation and adaptation. For example, state legislatures and courts could begin by acknowledging the idea of rolling easements along coastlines where protected areas shift as sea levels rise even if this will mean loss of private land. While the public trust doctrine protects these areas in theory, many governments are too nervous about potential takings claims to disrupt private property owners’ expectations (whether those expectations are reasonable or not). Our culture is so busy worshipping at the altar of private property rights that we are going to degrade, or even destroy, the very idol sitting before us.
 See Steven Ruddell, R. Sampson, Matt Smith, R. Giffen, James Cathcart, John Hagan, Daniel Sosland, John Goodbee, John Heissenbuttel, Stephen Lovett, John Helms, William Price, & Robert Simpson, The Role for Sustainably Managed Forests in Climate Change Mitigation, 105 J. Forestry 314 (2007); James L. Olmsted, Carbon Dieting: Latent Ancillary Rights to Carbon Offsets in Conservation Easements, 29 J. Land Resources & Envtl. L. 121 (2009).
 See Jesse J. Richardson, Jr., Conservation Easements and Adaptive Management, 3 Sea Grant L. & Pol’y J. 31 (2010); Adena R. Rissman, Lynn Lozier, Tosha Comendant, Peter Kareiva, Joseph M. Kiesecker, M. Rebecca Shaw, & Adina M. Merenlender, Conservation Easements: Biodiversity Protect and Private Use 21 Conservation Biology 709 (2007).
 See, e.g., Rissman, et al. supra note 2.
 See W. Neil Adger, Nigel W. Arnell, & Emma L. Tompkins, Successful Adaptation to Climate Change Across Scales, 15 Global Envtl. Change 77 (2005); Richard J. Lazarus, Super Wicked Problems and Climate Change: restraining the Present to Liberate the Future, 94 Cornell L. Rev. 1153 (2009).
 See So-Min Cheong, Policy Solutions in the U.S., 106 Climate Change 57, 61-62 (2011) (describing rolling easements).