Monday, June 20, 2016

Contemporary Issues in Climate Change Law & Policy, Part 4: Flexible Conservation in Uncertain Times, by Jessica Owley & David Takacs

Land Use Prof Blog is hosting a series of posts that are excerpts from book chapters in the recently released Contemporary Issues in Climate Change Law and Policy:  Essays Inspired by the IPCC.  The book was co-edited by Robin Kundis Craig (Utah) and me.  The posts will progress in the order of the book's chapters.  This fourth post is an excerpt from Profs. Jessica Owley & David Takacs' chapter, "Flexible Conservation in Uncertain Times."  The entire chapter is available here.  Links to previous excerpts are at the bottom of this post.

Buy the book here.

Cover

 

Excerpt

  1. Techniques and Concepts

Given the urgency of climate change and the uncertainty of which of our proposed solutions will be successful in a given context, we generally advocate for an all-of-the-above approach to climate change (Quick! Everyone do everything they can!). In a no-analog future, we may need innovation laboratories to discern what can work and under what particular conditions. Conservationists generally agree that certain habitat features are desirable. We want to protect species refugia, corridors, and migration pathways.[1] We want to assemble larger parcels and think about connecting them together.[2] Nevertheless, we note that proceeding in such a fashion can lead to piecemeal protection: everyone doing what they can in isolation may not be the most strategic way to maximize conservation outcomes. Conservation planners need some kind of coordinated holistic planning approach on how these individual actions complement each other to sustain human and non-human communities.

As discussed in Part I, many techniques and legal concepts already exist that do or could promote land conservation—particularly land conservation that can help to preserve biodiversity as the climate changes. This Part discusses each of these techniques and concepts in turn. Notably, moreover, many of the techniques we discuss here may also promote socioeconomic climate change adaptation through new sources of income by providing, for example, direct payments for preserving forests, by teaching new conservation-related income-generating skills,[3] or by providing for more secure, formal land title.[4] Managing REDD+, biodiversity offsetting, or debt-for-nature swaps, or securing community-based natural resources management may further institutional adaptation as community leaders, landowners, and government officials develop and manage projects and hone skills and institutions to negotiate effectively with project developers, funders, and government functionaries.[5] We explain each tool in turn below.

A.        Public Trust Doctrine

The public trust doctrine is a legal idea dating to the Holy Roman Empire in A.D. 529, when the Emperor Justinian added these words to the body of law by which he ruled: “By the law of nature these things are common to all mankind, the air, running water, the sea and consequently the shores of the sea.”[6] This idea has spread throughout the planet because it encapsulates a fundamental idea: some resources are so vital for human flourishing that the sovereign must steward those resources for the public benefit.[7] Private parties must never be allowed to gain permanent control over these resources.

While the public trust doctrine, as this notion came to be known, began its peripatetic life applied to water, it is now applies much more widely in various locales.[8] Some activists in the United States and elsewhere have been advocating for an expanded use of the public trust doctrine, both in reaching beyond the traditional geographical (beyond the low tide line as discussed below) and topical limits (beyond water) and in extending the purposes for which public resources can be protected and managed. While the classic public trust doctrine was confined to protecting waterways subject to the ebb and flow of tides to enable public rights of navigation and fishing, today’s public trust doctrine encompasses many categories of waterways and land adjacent to waterways for purposes that now include recreation and environmental protection. For example, in one of India’s seminal cases reinstituting the public trust doctrine, the Supreme Court held that a public market and park are public trust resources that may not be given away to a private developer for a shopping center.[9] In South Africa, the 1998 National Environmental Management Act invokes the public trust in an expansive way: “[t]he environment is held in public trust for the people, the beneficial use of environmental resources must serve the public interest and the environment must be protected as the people’s common heritage.”[10] A California appeals court has declared that “it has long been recognized that wildlife are protected by the public trust doctrine” as “they are natural resources of inestimable value to the community as a whole.”[11]

Protection of public resources is vital as climate change reshapes the landscape, and expanded recognition and application of the public trust doctrine could serve as an important tool for both mitigation and adaptation. Unfortunately, public officials and courts in the United States (and elsewhere) have been slow to acknowledge the important role this doctrine could play. As one California court pointed out, “public agencies do not always strike an appropriate balance between protecting trust resources and accommodating other legitimate public interests.” [12] Indeed, governments may completely ignore the protection of the trust resources. The suggestion that members of the public have no right to object if the agencies entrusted with preservation of wildlife or other resources fail to discharge their responsibilities is contrary to the holding in pivotal California Supreme Court case National Audubon Society[13] and to the entire tenor of the cases recognizing the public trust doctrine elsewhere.

The public thus has the right to demand that government agencies steward resources wisely; such wisdom includes attending to the changing needs of biodiversity as climates change and human needs change accordingly.[14] The public trust doctrine demands that as trust resources evolve, conservation evolves with it. We should continue to acknowledge the rights of citizens to claim sound stewardship of their evolving public trust resources, and courts should recognize that public trust doctrine logically applies to other natural resources including a wide variety of ecosystems and habitat based on the ecosystem services that they can provide the public.[15]

B.  Payments for Ecosystem Services

While we can employ the public trust doctrine to press governments to steward resources, we can also employ market forces to pay private citizens to cooperatively protect those resources. IPCC’s Working Group II suggests that “existing and emerging economic instruments” might provide a route to adaptation.[16] The Working Group’s Summary for Policymakers specifically identifies payments for environmental services and subsidies as possible adaptation tools, but cautions that if not used carefully these economic tools “can provide disincentives, cause market failure and decrease equity.”[17] Payments for ecosystem services (PES) is central tenet of many of the economic instruments used in climate change measures. Landowners are remunerated for managing their land to produce or maintain ecosystem services.[18] Ecosystem services are “components of nature, directly enjoyed, consumed, or used to create human wellbeing,”[19] and the concept acknowledges that natural ecosystems perform critical life-supporting services upon which the wellbeing of all society depends.[20] The main ecosystem services are categorized as provisioning, regulating, supportive, and cultural services.[21] Provisioning services include food, water, fiber, and fuel; these have quantifiable market values.[22] Regulating services include flood control, and soil erosion prevention, while supporting services include nutrient cycling and soil formation. Cultural services include recreational use and spiritual values, the values of which are uncertain.[23]

The type, quality, and quantity of services provided by an ecosystem are affected by our resource decisions.[24] When the benefits of an ecosystem service accrue mainly to those who make management decisions (e.g., as in production of crops or livestock), private markets are likely to work relatively well.[25] However, when the benefits of an ecosystem service flow primarily to others, such as with water purification or climate stabilization, public interests and the interests of the resource manager may be misaligned.[26] This difference in private and social benefits, or the problem of externalities, results in a classic market failure: individuals will tend to provide too little of the ecosystem service.[27] PES can serve as “an effective mechanism to translate external, nonmarket values of ecosystem services into financial incentives” for individuals to provide conservation and socioeconomic development.[28]

After identifying important services or amenities provided by ecosystems, we could pay landowners to undertake pro-conservation management practices, such as habitat restoration or practices to reduce soil runoff. Such payment plans can enable private organizations or governments to influence landowner behavior without acquiring a formal property interest in the land or needing extensive regulatory programs. The parties to the contract, moreover, can modify the nature of the requirements or the level of payments as a changing climate changes local and global needs. It’s usually easier to modify contracts than statutes!

This mechanism also enables private organizations to promote land conservation where they believe government entities aren’t adapting quickly enough to prevailing local conditions. Thus, conservation organizations might pay landowners to engage in specific management practices to promote climate change adaptation or even pay landowners to allow the conservation organizations to undertake those management practices. For example, the U.S, Department of Agriculture pays farmers to undertake conservation efforts on their land.[29] Farmers can receive an annual “rental” payment in exchange for maintaining certain vegetative cover. This program focuses on soil conservation and encourages native grasses and other plantings that reduce soil erosion while supporting healthy ecosystems.[30] Prevention of erosion has many benefits, including watershed protection and providing riparian habitat for birds and other species.

Payments for ecosystem services allow those who benefit from ecosystem services to direct and redirect funding to where it is most needed as the needs of human and ecological communities evolve as the climate changes. Costa Rica is the paradigmatic success story—“an icon”[31]—in implementing innovative programs to pay property owners for conserving ecosystem services. Costa Rica’s Payment for Environmental Services program (PES, or PSA, Pagos por Servicios Abientales) was introduced in 1996 in Forestry Law No. 7575, which describes the terms by which property owners with forests, tree plantations, or agroforestry systems are compensated for mitigating GHG emissions, providing hydrological services, conserving biodiversity, and preserving scenic beauty for ecotourism.[32] Since 1997, the program has funded conservation of about 1 million hectares of forests, and forest cover in the nation has grown from 20% in 1987 to over 50% in 2013.[33] Although the program has faced some criticisms—e.g., payments were not directed to priority conservation areas and didn’t consider additionality, i.e., the government paid for areas that would have been conserved anyway—the government has continuously made improvements to target both priority conservation areas and to channel more funds to indigenous communities and women-owned properties.[34]

C.  Conservation Easements

While PES is rooted in contract law, conservation easements emerged from traditional property law. For centuries, common law countries have enabled restrictions on private land through servitudes, often in the categories of easements and covenants. The traditional servitudes enable private (or public) parties to limit land use.[35] They could also sometimes be used to achieve environmental protection goals, but common law impediments that restricted who could enter into the agreement, what the agreement could be for, how long it could last, and whether it could be transferred made conservationists hesitant to use them.[36] To get around these problems, states enacted conservation easement statutes that enabled government agencies and nonprofit organizations to hold perpetual restrictions on land.[37] Conservation easements prohibit landowners from acting in otherwise permissible ways with the goal of yielding a conservation benefit. For example, in many conservation easements, the landowner agrees to limit development on her land, and the conservation easement holder is the entity that can enforce the agreement. In exchange for agreeing to this limitation, the landowner usually receives tax breaks, cash payments, or permits to develop elsewhere.

Most conservation easements are perpetual, and their stipulations allow for little or no change. The current landowner and conservation easement holder determine the specifics of the agreement temporally (by naming the length of the conservation easement’s term), spatially (by drawing the conservation easement boundaries), and ecologically (by establishing the exact restrictions on the land). These conservation easements run with the land. In other words, when an owner sells her property, the new owner must also abide by the terms of the agreement. While some conservation easements may use management plans and rely on adaptive management procedures to respond to changing conditions, many conservation easements state that the property is to be preserved in its “natural state.”[38] A baseline document (required by the IRS for donated conservation easements)[39] makes it likely that the natural state will be assessed by comparison to the conditions of the property on the day the conservation easement was recorded.[40]

Conservation easements are a useful tool for climate change in both mitigation and adaptation programs. The ability to tailor the agreements to the landscape and to ensure long-term protection of natural resources is invaluable. Indeed, many of the other conservation tools we discuss often work alongside conservation easements. However, the classic perpetual static conservation easement will not always be the ideal tool to meet conservation goals. Some modifications of the classic tool can yield benefits as well. For example, non-perpetual conservation easements may be appropriate in many circumstances. These could take different forms: term conservation easements that expire on a specified date or perhaps renewable conservation easements in which the holder retains an option to terminate the agreement if it no longer makes sense for protection of the land’s conservation values.[41] Some suggest that removing perpetuity from conservation easements without clear guidelines for modification is unlikely to reduce the vulnerability of conserved lands to climate change.[42] However, land trusts may find term conservation easements an attractive path because they allow the holder or the community to change its mind about which lands to conserve and what the restrictions on those lands should be. Other land trusts are looking at their holdings and wishing some of the agreements weren’t perpetual, expressing the concern that they haven’t protected the right lands and are now stuck with stewardship obligations over lands they no longer view as desirable for meeting their conservation goals.[43] There may also be a hybrid approach where the conservation easement remains in place but there are requirements to periodically revisit and reassess the terms of the agreement.[44] This arrangement would allow incorporation of principles of adaptive management.

Conservation easements have largely been couched in terms of negative restrictions. That is, they tell landowners what they can’t do. They rarely require affirmative obligations by the landowners.[45] When they do, those obligations tend to be minimal, like keeping certain areas landscaped or, in rare circumstances, requirements to control invasive species or engage in pest management.[46] Conservation easements also rarely enable the holder to undertake conservation activities on the land. While some conservation easements have provisions for public access or periodic visits to the land, it may be more desirable to enable holders to restore degraded habitat, relocate species to or from the land, or remove invasive flora and fauna. Most land trusts, the private land conservation organizations that hold conservation easements, are not well equipped currently to undertake active land management. They often have few employees, most of whom are not trained in ecology, conservation biology, or restoration.[47] Changing the framework of conservation easements to make them more active sites of conservation work will involve engaging new players in the effort. Where the holders are government agencies, such expertise may already be available on staff or in other units. Either way, we may see contracting out for active conservation expertise and labor. The climate change-addled future may see a blossoming of new economic livelihoods from restoring the planet.

Some tools inspired by conservation easements are only now entering into use or being proposed. One example is the use of real estate options. Where it appears possible that a specific parcel will become an important building block in a landscape protection system, options may become attractive.[48] An option is the right to buy a conservation easement or full title ownership to a property at a future point for a specified price. Options can keep future alternatives open without requiring the investment needed for immediate purchase. They can enable planning for an uncertain future, identifying multiple potential sites for species or ecosystem migration and asserting control over larger land area without the level of investment needed for purchase of full title or conservation easements.  

Annuity or endowment conservation easements[49] occur when a conservation organization wants to protect a parcel of land but is not sure whether the land will retain its conservation value in the future. Rather than paying the landowner up-front for the conservation easement, the conservation organization invests what it would otherwise pay for a perpetual conservation easement in an annuity. As the annuity accrues interest or increases in value, the holder transfers those funds to the landowner for as long as the organization wishes to retain the conservation easement. If the holder decides to terminate the conservation easement, it stops making payments. So long as the conservation organization makes the payments, however, the conservation easement can last in perpetuity.[50]

Recognizing that the land important for conservation can change over time in response to changes in sea level, habitat, and the like, it may be desirable to design conservation easements (or a succession of them) that “move” in response to climate conditions. An inspiration for this is a rolling easement along a shoreline that shifts as the high water mark shifts.[51] The public trust doctrine discussed above recognizes a public right of use and access to coastal areas.[52] The line demarcating public ownership varies, but whether set at low tide, high tide, or the vegetation line (for some examples), it is a line that will be changing with sea level rise and other complications resulting from climate change. In the United States, the law generally recognizes that as the line changes, the property that we consider part of the public trust (and thus either owned by the state or imbued with a public trust easement protecting access and use of the area) shifts. While it is not yet clear how this concept would work with changing property owners (or with the constraints on donated conservation easements), rolling conservation easements limiting development and land use would be more closely tied to ecological boundaries than property lines. In particular, sea level rise projections predict submergence, coastal flooding, and coastal erosion with very high confidence,[53] suggesting that there may be a place for tools like rolling conservation easements and shifting rules regarding protected areas.[54]

Even within the context of the traditional rolling coastal easement that demarcates the line between public access and use and private property, there may be opportunities for developing better conservation tools. The rules governing the boundaries of public trust property (or a public trust easement) often vary depending on the rate of the shifts in the sea level. Usually, shifts in shoreline occur gradually over the course of years or decades. Many states therefore adopt an average of the mean high tide line to determine which lands are public trust lands and which are private (and therefore belong to adjoining property).[55] Where the change happens quickly, as with a storm surge, the property line doesn’t generally change.[56] The reasoning for this rule is that it would be overly harsh to make such dramatic changes to private property lines. This reasoning is often not that persuasive, particularly where current IPCC reports and other studies continually improve our understanding of the likely levels of sea level rise and the increasing frequencies of storm surges and other coastal events. One approach may be not that the actual title and occupancy to the land needs to change hands but that we expand the public trust zone by having an expansive public easement over the private land in that area that lets those who need it have access to the shoreline and enables public entities to take measures to protect important resources and habitats. Indeed, states already have a lot of variation on their interpretation of these boundaries and judicial interpretation of the doctrine to encompass greater ecosystem protection in the context of climate change is not unrealistic.

Although not currently consistent with all state and federal laws regarding conservation easements, tradable or moveable conservation easements could provide an opportunity to shift conserved lands as the landscape changes. These may be more politically palatable than the idea of a rolling easement. With a predefined agreement between a landowner and conservation easement holder, tradable conservation easements could be terminated at any point so long as the proceeds of the termination are reinvested in another conservation easement that meets the same conservation values.[57] This strategy is already legally possible with preservation of property in fee simple (that is, holding full title to the parcel), if perhaps cumbersome. Adding this agility to conservation easements could provide greater flexibility when the value of particular land changes in the face of climate change.

D.  Reducing Emissions from Deforestation and Forest Degradation: REDD+

As the Working Group III’s Summary for Policy Makers notes, “[p]olicies governing agricultural practices and forest conservation and management are more effective when involving both mitigation and adaptation. . . . When implemented sustainably, activities to reduce emission from deforestation and forest degradation (REDD+[58] is an example designed to be sustainable) are cost-effective policy options for mitigating climate change, with potential economic, social and other environmental and adaptation co-benefits. . . .”[59] In REDD+, a local community, individual landowner, private developer, or government entity reforests degraded land or preserves a forest that would otherwise be felled. The actor may then sell the stored carbon in that land or forest for a contracted period to entities that want to offset their GHG emissions or simply want to preserve forests.[60] REDD+ may happen on a project-by-project basis. Increasingly, however, it is operating on a broader scale: A nation, province, or state uses REDD+ funds to reduce deforestation or promote reforestation in a wide geographic area, resulting in greater stored carbon than would have occurred without the funding.[61]

REDD+ blurs the bounds between global mitigation and local adaptation. REDD+ mitigates climate change when trees retain carbon that deforestation would otherwise release, or if new growth absorbs extra carbon dioxide. Additionally, maintaining healthy forests helps communities adapt to climate change by sustaining ecosystem services—preventing erosion, increasing rainfall, buffering floods, cleansing drinking water, and harboring crop pollinators—and by preserving biodiversity crucial for human survival. REDD+ investments can promote socioeconomic climate change adaptation through new sources of income and by providing for more secure, formal land title.[62] REDD+ may also further institutional adaptation as community leaders, landowners, and government officials develop and manage REDD+ projects and hone skills and institutions to negotiate effectively with project developers and government functionaries.[63]

Governments, international financial institutions, environmental and social justice NGOs, and private citizens have poured over US$5 billion into REDD+ thus far.[64] REDD+ financing may be one of the best friends tropical biodiversity has ever had, provided that safeguards to emphasize biodiversity protection are incorporated into REDD+ finance deals. The Climate, Community, and Biodiversity Alliance, a consortium of businesses, technical advising agencies, and environmental and social welfare NGOs, has issued the most widely used standards to ensure positive biodiversity and social welfare benefits for individual projects.[65] A formal verification process ensures that when a state, province, or nation that pledges to reduce deforestation over a larger area in exchange for REDD+ funding, it actually does so, and that the implementing entity adheres to the guidelines that ensure biodiversity and social welfare co-benefits.[66] Even more money should be flowing into REDD+ thanks to agreements on social and environmental safeguards, a regime of measuring, monitoring, reporting, and verifying REDD+ outcomes, and a system of REDD+ financing reached in advance of the UNFCCC Conference of Parties in Paris in December 2015.[67] The 2015 Paris Agreement itself reaffirms the role of REDD+ in mitigating climate change while calling for “results-based payments” and “reaffirming the importance of incentivizing, as appropriate, non-carbon benefits associated” with REDD+.[68]  REDD+ funding priorities may shift as climate change shifts the landscape and thus conservation needs arise in new or unexpected locales, but for now REDD+ seems certain to expand across multiple landscapes.

E.  Biodiversity Offsets

Biodiversity offsetting translates the logic of carbon offsetting—because greenhouse gases are fungible, let the market figure out where it makes best economic sense to mitigate their buildup in the atmosphere—into something more sweeping. In more than three dozen jurisdictions,[69] developers are allowed to destroy biodiversity—individual species, particular ecosystems—in one place in exchange for protecting biodiversity elsewhere. As in REDD+, success of biodiversity offsetting is all about wise, participatory planning to map where and why we want development and where and why we want nature. If done well, biodiversity offsetting allows experts to plan for maximum flexibility and resilience in face of climate change. If biodiversity offsetting works as its backers promise, then it’s a win-win situation on a landscape level: jurisdictions encourage economic development where it is needed and can prioritize conservation where it makes the greatest ecological sense. For the regulated entity—the developer, the citizen wishing to build a home, even the government—offsets may reduce the costs of compliance with environmental laws and offer sensible flexibility for how to respond to laws protecting biodiversity.[70] For conservationists, offsets can help incentivize conservation on private land and can channel protection efforts to where they will do endangered species and ecosystems the most good.

To fulfill their promise, biodiversity offsets must both mitigate the original damage and enhance the chance for a species to survive. Let’s put aside for the moment the question of whether it is ethically legitimate to harm one biological community (and perhaps harm the human communities that depend upon those biological communities) in exchange for biodiversity mitigation elsewhere.[71] In the name of preservation of an imperiled species or ecosystem, conservation biology may support offsetting. Conservation biologists often note that single large reserves are more ecologically sustainable, and may offer better long-term resilience, than several smaller reserves of the same surface area.[72]Larger reserves may lessen fragmentation where scraps of isolated habitat fail to provide area to support minimum viable population sizes or corridors to connect isolated populations, and thus provide more resilient species response to climate change.[73] Larger areas may support larger populations that are more likely survive disturbances and “edge effects” from surrounding habitats whose biota may invade and conquer the desired rare species.[74] Smaller preserves may allow species nowhere to go, creating islands of the doomed.[75] In sum, the U.S. Fish & Wildlife Service suggests, “larger reserves are more likely to ensure ecosystem functions, foster biodiversity, and provide opportunities for linking existing habitat.”[76]

Mitigation banks are part of a market for ecosystem services and environmental amenities. The two most common types of mitigation banks are those for wetlands and those for endangered species habitat. Mitigation banks are created (often by for-profit private corporations but not necessarily) by setting aside areas of land to promote healthy wetlands or endangered species habitat. With wetlands, for example, often the bank buys existing or degraded wetlands and puts in place management plans to promote a healthy functioning wetland.[77] The governmental agencies overseeing the bank (in the case of wetlands in the United States, it is usually the U.S. Army Corps of Engineers) work with the bank to quantify the value of the wetlands. They rank the wetlands on a scale of how valuable/rich/healthy the wetland is.[78] The Corps then approves the bank to sell credits. The marketplace determines the price tag on those credits. Developers engaging in projects that harm or degrade wetlands then buy credits from the bank to compensate (or mitigate) for the environmental damage they are causing. Thus, wetlands mitigation banking turns wetlands into a fungible asset.

Government agencies may be responsible for biodiversity offsetting, as in when developers pay “in lieu” fees and officials use those fees to prioritize conservation in priority areas, such as Natural Community Conservation Plans or regional Habitat Conservation Plans in the United States (discussed below). Keeping offsetting in the hands of the government may make it more likely that democratically accountable institutions are balancing competing needs and prioritizing correctly. Biodiversity offsetting can provide money in the form of payments to help cash-strapped governments do what they might otherwise not be able to afford to do.[79] In Australia, for example, New South Wales is newly prioritizing “biobanking,” as it encourages “offsets on land that is strategically important for biodiversity in NSW, such as land adjacent to rivers, streams and wetlands and important mapped biodiversity corridors. Establishing offset sites in these areas may generate additional biodiversity credits, which can be sold by landowners.”[80] A review of the potential of biodiversity offsetting in New South Wales notes that the government supplies only enough funds to manage 19% of species that are threatened.[81] Offsetting will potentially pour billions of dollars into biodiversity conservation.[82] Kiesecker et al. note that a single oil and gas field pumped US$24.5 million into a biodiversity mitigation fund in Wyoming, compared to US$4 million otherwise available for wildlife conservation.[83]

Some critics allege that biodiversity offsetting is just a sop for developers to circumvent existing, effective conservation laws.[84] Arguably, the existence of mitigation banks facilitates conversion of already-existing habitat. The ability to purchase credits can hamper pressure to minimize impacts or to find alternative mitigation opportunities. However, for the UK’s leading biodiversity offset private company, “It is not a license to trash, it is the complete opposite. When you put a value on biodiversity, you are putting a financial incentive for developers not to trash it.”[85] In the continental United States, private parties own 73% of the land; half of all endangered and threatened species have at least 80% of their necessary habitat on private land.[86] Through biodiversity offsetting, endangered species become assets to a property owner to steward, not a liability to dread or even surreptitiously destroy.[87] Once a price is put on biodiversity, private landowners have an economic incentive to manage their land for conservation.[88] By one estimate, over US$1 billion/year is spent on biodiversity and ecosystem mitigation.[89] Thus, money provides jobs and boosts economic vitality in rural areas.

On the other hand, much of the money may go to private, for-profit biodiversity bankers as the offsetters. Offsetting creates a new class of “enviroproneurs”[90] who can participate in “free market” (although the market depends on formal statutes that require conservation in the first place!) solutions to environmental conservation. Such bankers may have particular restoration or conservation expertise and thus earn profit from sound stewardship, making conservation an economic asset rather than a liability. Under the U.S. Endangered Species Act, federal agencies can offset anticipated takes (i.e., destruction or harm) of listed species by investing in private biodiversity banks.[91] Private citizens can use banking offsets to help fulfill the requirements of the habitat conservation plan required when the U.S. Fish & Wildlife Service (USFWS) issues an incidental take permit allowing the property owner to “take” listed species. The USFWS has approved over 100 biodiversity banks in 11 states covering nearly 100,000 acres for more than 60 listed species.[92]

Some biodiversity banks we visited in central California and Victoria and Queensland, Australia,[93] were situated in prime habitat in ecologically prudent locations and saved land that otherwise would have been destroyed, or were well-restored prior agricultural land now hosting endangered species where otherwise such conservation would not have existed. Offsetting programs can also generate funding and support for other efforts. The Queensland Trust for Nature, for example, is using biodiversity offsetting not only to preserve crucial koala corridors, but also to raise funds for their other conservation efforts.[94] Biodiversity offset programs can sometimes be a model of corporate social responsibility: Paul Detmann, who is one of Victoria’s prime biobankers, expresses his company’s philosophy:

Cassinia Environmental has a very long-term vision of reconnecting all of Australia’s National Parks through a network of private land managed for conservation. We call this vision Biolinking Australia—and it’s a goal we share with many other conservation organizations. . . . Biolinking Australia is both a company and a vision. We have a 100-year plan to see all Australia’s significant natural assets connected through linkages—connecting private and public lands of environmental significance into a network of natural linkages. . . .[95] 

Not all stories were as hopeful, though. Some of the U.S. wetland and habitat banks we visited had been severely degraded as a result of a lack of adequate caretaking and were secured with uncertain legal instruments. Moreover, democratically responsible governments may have a wider view of what both human and nonhuman communities need; if private offsetting is to be allowed, it should be under constant watchful government supervision.[96] If done right, offsetting may provide great benefits to biodiversity, now and as climate changes the landscape.

Biodiversity offsetting programs can be part of larger landscape level protection efforts. As noted above, conservation biologists often advocate for large reserves for the protection of biodiversity.[97] At the same time, biodiversity advocates increasingly call for comprehensive conservation planning in the context of comprehensive development planning. Such planning will become even more urgent as climate change alters what both human and nonhuman communities require to survive. Resilient ecological communities support resilient human communities.[98] Rather than a project-by-project atomization of individual habitat conservation plans (where a given developer must mitigate her impacts on formally listed endangered species), such comprehensive plans would seek to identify and plan for “the full range of biological features, how they are currently distributed, and what minimum viability needs each biological target require to persist in the long term.”[99] Successful programs must result from a public process, including government officials, environmental advocates, business interests, biologists, and representatives of the general public. Such participatory conservation planning, often incorporating private landowners as newly converted conservation allies, allows communities the space to plan sound development and conservation and the space to change their minds if climate change shapes the landscapes in unanticipated ways.

California has pioneered Natural Community Conservation Plans (NCCPs), which “review the landscape area by area and species by species, yielding a list of types of terrain that might be purchased for mitigation, such as creek side corridors, alkali wetlands and meadows, and serpentine rock types home to rare and specially adapted species.”[100] In most NCCPs, developers pay the government fees that the government invests in biodiversity targets; these fees could just as easily be invested in privately run biodiversity banks. Supporters of offsetting point to the sound conservation planning and public buy-in for this kind of landscape-level planning, providing money for conservation that is less acrimonious and more likely to accommodate human and nonhuman needs.[101] Additionally, planning at this scale can enable protection of larger areas of land and put conservation programs in place before development projects even begin. This advanced protection has the potential (but yet to be widely realized) advantage of enabling conservationists to evaluate the success of conservation projects before permitting development.

The U.S. Department of Interior supports streamlined approval for renewable energy projects in California’s deserts, and thus “[m]itigation is being baked into an integrated, landscape-level management and planning exercise.”[102] This program gives greater certainty to permit applicants and the public, and promotes “meaningful, landscape-level environmental needs–rather than small-bore and/or ad hoc mitigation efforts.”[103] Incorporating biodiversity offsetting at an early stage means that parties can plan ahead so that both agencies and developers know what they have to do, and environmental advocates and conservation biologists can advise on where large new sources of cash can do the most good for biodiversity. According to the Bureau of Land Management, “a regional mitigation approach also shifts the BLM’s mitigation focus from a permit-by-permit perspective to a proactive regional-scale mitigation planning perspective.”[104]   

One or more conservation organizations or governments could create a landscape-scale reserve in which the protections afforded to any particular area is dynamic and flexible over time. As conditions change and species and habitats move, the level and type of protection applicable to any portion of the reserve also would change. For example, one area of the reserve might initially be open to agriculture but then restored to native habitat at a later point if a species moves in that direction. In some cases, a sound strategy for land conservation is simply to create room for adaptation. The Environmental Defense Fund (EDF) has developed programs along these lines. For example, through the greater sage-grouse habitat exchange, landowners in the western United States are incentivized to engage in proactive measures “to grow habitat”[105] for sage grouse, including controlling the expansion of undesirable vegetation and invasive species, and restoring appropriate habitat on degraded land.[106] Scientists evaluate the landowners’ efforts and assign them a credit value. The landowners can then sell this credit to industries and developers looking to offset the impacts of their projects. Promoted as a win-win solution,[107] the program protects and increases habitat while providing an income stream for landowners. Developers also find the program desirable because it gives them a marketplace to buy credits and removes the onerous task of developing new mitigation projects for each new proposal. Although this EDF example concentrates on one type of species habitat, related programs could address broader goals. The Department of Interior is pursuing this philosophy on a grander scale as it seeks protections and new funding sources for the sage grouse[108] and lesser prairie chicken, whose habitats stand in the way of oil and gas development in the American West, and who have chosen to live largely in Republican congressional districts where support for endangered species protection at the property owners’ expense is not robust.

F.  Debt for Nature Swaps

After gaining independence from colonizing northern nations, many southern governments, desperate to improve their citizens’ quality of life, entered into loan agreements with the World Bank and other lending institutions and donor governments.[109] Many borrowing nations then found themselves unable to pay back their debts (totaling over US$1 trillion) without exploiting their natural resources via extractive industries such as mining and logging to earn hard currency.[110] It’s precisely these resources—clean water, intact forests—citizens will require even more urgently as they adapt to an increasingly capricious climate.

In debt-for-nature swaps, lenders cancel or reduce debt in a developing nation if, instead, the nation invests the money (that otherwise would have flown from South to North) in actions to preserve nature within the country.[111] While critiqued for their threats to sovereignty, legitimation of “illegitimate” debt, and possible interference with the participation and property rights of indigenous or other local peoples,[112] when done carefully, debt-for-nature swaps can result in win-win-win results. When developing nations—and their sovereign indigenous groups—are full (and not coerced) participants, debt-for-nature swaps may enhance climate change mitigation and adaptation in the same way REDD+ can: through reducing greenhouse gas emissions from deforestation and degradation while, and through preserving local ecosystem services and the cultures dependent on those services.

For example, in one successful U.S.-funded (US$2 million) debt-for-nature swap in Bangladesh, local groups receive land rights and in turn reforested denuded hills and received training in alternative (to forest destruction) income generation, thus providing more land for conservation, greater buffering from erosion and flooding, and local institutional adaptation.[113] Debt-for-nature swaps could also be used to help developing nations fulfill their treaty obligations under the Convention on Biological Diversity and other multilateral environmental agreements whose obligations are good on paper, but are often difficult to fulfill for cash-strapped governments.[114] By allowing a nation to pay off its debts through investing in homegrown conservation solutions, debt-for-nature swaps could be reinvigorated as a means to facilitate climate change adaptation.

G.  Community-Based Natural Resource Management

There’s only so much land that a given government can afford to set aside as public conservation lands and only so many private citizens willing to burden their properties with conservation easements. REDD+ and biodiversity offsetting are two ways to incentivize conservation for a no-analog climate change future. Some nations are also experimenting with directly incentivizing conservation by turning over management of biodiversity to local community groups, who may then profit directly from ecotourism. Wildlife, particularly in developing countries, requires cooperation from local people if it is to persist; limiting wildlife to formal protected areas shrinks the potential pool of lands where conservation can occur and limits migration corridors,[115] both of particular concern as climate change reshapes habitats and requires both greater genetic variability and larger areas where wildlife may be able to thrive in the future.

Much of the world’s land is formally owned by national governments.[116] In some cases, those governments are finding it advantageous to devolve certain property rights to local community groups. For example, Namibia has established fifty local community conservancies; each conservancy is then legally enabled to manage biodiversity and benefit from visitors who wish to see (or even hunt, sustainably) the nation’s spectacular wildlife.[117] Thus, even if the land is still legally owned by the national government, management and benefits accruing from tourism now rests in the hands of local communities. In one analysis, when they benefit directly from biodiversity, “many local people see wild animals, even troublesome animals such as elephants and rhino, as a key to an improved future.”[118] In Namibia, half the elephants live outside of officially protected areas, but the elephant populations have rebounded because community-based natural resource management has given extra incentive to communities to patrol against poaching.[119]

Community-based natural resource management not only maximizes the area in which biodiversity may thrive, it also maximizes corridors for flora and fauna to migrate as local ecological conditions change, stabilizes healthy local ecosystem services, and provides institutional adaptation as communities develop organizational structures to work together to manage their environmental resources.[120] For community-based natural resource management to work, communities must have clearly delineated property rights, management responsibilities, and economic incentives.[121] The programs are most successful where the natural resource decisions then made are supported by science and flexible enough to incorporate principles of adaptive management and resilience thinking.

Community-based natural resource management can meet other goals related to community development, as well. When conservation occurs only in areas set aside and designated for conservation, we create a dichotomy between areas where people live and work and areas dedicated to “nature.” This approach focuses on isolating and protecting designated environmental areas or amenities from human impact. Implicit is the assumption that human activity will negatively affect environmental resources and, therefore, human interaction with those resources should be eliminated, reduced, or controlled. Conservation, obviously, requires land devoted to activities other than intense human appropriation of primary production. Yet, that need not mean exclusion of all humans and their activities from the land. 

 

[1] See, e.g., James R. Sedell et al., Role of Refugia in Recovery from Disturbances: Modern Fragmented and Disconnected River Systems, 14 Envtl. Mgmt 711 (1990); Francis Gilbert et al., Corridors Maintain Species Richness in the Fragmented Landscapes of a Microecosystem, 265 Proceedings B of the Royal Society 577 (1998); Frank R. Moore et al., Habitat Requirements During Migration: Important Link in Conservation, in Ecology and Management of Neotropical Migratory Birds, 121 (Thomas E. Martin & Deborah E. Finch, eds., 1995).

[2] California Department of Fish and Wildlife, Conservation and Mitigation Banking, https://www.wildlife.ca.gov/Conservation/Planning/Banking (last visited Oct. 11, 2015); U.S. Fish & Wildlife Service, Guidance for the Establishment, Use, and Operation of Conservation Banks 4, 6 (2003).

[3] Jared E. Knicley, Debt, Nature, and Indigenous Rights: Twenty-Five Years of Debt-For Nature Evolution, 36 Harv. Envtl. L. Rev. 79, 81 (2012); see also Arannayk Foundation, http://www.arannayk.org/curproject_biram.php (last visited Sept. 3, 2015); Richard Tipper, Helping Indigenous Farmers to Participate in the International Market for Carbon Services: The Case of Scolel Té, in Selling Forest Environmental Services: Market-Based Mechanisms for Conservation and Development 223, 232 (Stefano Pagiola et al., eds., 2002); Margaret Skutsch et al.,  Alternative Models for Carbon Payments to Communities under REDD+: A Comparison Using the Polis Model of Actor Inducements, 14 Envtl. Sci. & Pol’y 140, 143 (2011); Promode Kant, REDD Should Create Jobs, Not Merely Bring Compensation 3 (Inst. of Green Econ., Working Paper No. 13, 2010), available at http://www.igrec.in/REDD_should_create_Jobs_Not_merely_bring_ compensation.pdf.

[4] David Takacs, Conservation International, Forest Carbon + Property Rights 25-26, 37, 38 51, 62 (2009) [hereinafter Takacs, Forest Carbon + Property Rights]; Ashwini Chhatre et al., Social Safeguards and Co-Benefits in REDD+: A Review of the Adjacent Possible, 4 Current Opinion in Envtl. Sustainability 654, 655 (2012); 2008 Forest Group, Katoomba Group & UNEP, Payments for Ecosystem Services: Getting Started 10 (2008), available at http://www.katoombagroup.org/documents/publications/GettingStarted.pdf; William D. Sunderlin et al., Rights & Res. Initiative, From Exclusion to Ownership? Challenges and Opportunities, in Advancing Forest Tenure Reform 29–30 (2008).

[5] Chhatre et al., supra note 53, at 657; Patricia Nelson, An African Dimension to the Clean Development Mechanism: Finding a Path to Sustainable Development in the Energy Sector, 32 Denv. J. Int’l. L. & Pol’y 615, 623 (2004); Alfred Ofosu-Ahenkorah, CDM Participation and Credit Pricing, in Africa, in Equal Exchange: Determining a Fair Price for Carbon 127, 133 (Glenn Hodes & Sami Kamel, eds., 2007).

[6] David Takacs, The Public Trust Doctrine, Environmental Human Rights, and the Future of Private Property, 16 NYU Envtl. L. J. 711, 771 (2008).

[7] Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471, 484 (1970); Takacs, supra note 55, at 713–15.

[8] Takacs, supra note 55, at 79.

[9] M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu, (1999) S.C.C. 464 (India).

[10] National Environmental Management Act of 1998, Ch.1, § 2(4)(o), available at https://www.environment.gov.za/sites/default/files/legislations/nema_amendment_act107.pdf (last visited Sept. 8, 2015).

[11] Center for Biological Diversity v. FPL Group, Inc, 83 Cal. Rptr. 3d 588, 597, 599 (Cal. App. 1st Dist. 2008).

[12] Id. at 602.

[13] National Audubon Soc’y v. Super. Court., 658 P.2d 709, 732 (1983).

[14] Robin Kundis Craig, A Comparative Guide to the Western States' Public Trust Doctrines: Public Values, Private Rights, and the Evolution Toward an Ecological Public Trust, 37 Ecology L. Q. 53, 80 (2010).

[15] A current focus of public trust doctrine advocates is asserting that the doctrine applies to climate stability and air quality as embodied in the atmospheric trust litigation. Mary Christina Wood, The Planet on the Docket: Atmospheric Trust Litigation to Protect Earth’s Climate System and Habitability, 9 Fla. A&M L. Rev. 1 (2015).

[16] 2014 IPCC Adaptation Report, supra note 3, at 26.

[17] Id.

[18] Evan Mercer et al., Taking Stock: Payments for Forest Ecosystem Services in the United States, Forrest Trends: Ecosystem Marketplace 1 (2011), available at www.forest-trends.org/documents/files/doc_2673.pdf.

[19] James Boyd & Spencer Banzhaf, Resources for the Future, What are Ecosystem Services?: The Need for Standardized Environmental Accounting Units 8 (2006), available at http://www.rff.org/rff/Documents/RFF-DP-06-02.pdf.

[20] Id.

[21] Pushpam Kumar et al. , Behavioral Foundation of Response Policies Management: What Can We Learn from Payments for Ecosystem Services (PES), 10 Ecosystem Services 128, 129 (2014).

[22] Id.

[23] Id.

[24] Jack B. Kelsey et al., Designing Payments for Ecosystem Services: Lessons from Previous Experience with Incentive Based Mechanisms, 105 PNAS 9465, 9465 (2008).

[25] Id.

[26] Id.

[27] Id.

[28] Hua Zheng et al., Benefits, Costs, and Livelihood Implications of a Regional Payment for Ecosystem Service Program, 110 PNAS 16681,16681 (2014).

[29] USDA, Natural Resources Conservation Service, Conservation Reserve Program, http://www.nrcs.usda.gov/wps/portal/nrcs/detail/national/programs/?cid=stelprdb1041269 (last visited Aug. 18, 2015).

[30] Id.

[31] Ina Porras et al.,  Learning from 20 Years of Payments for Ecosystem Services in Costa Rica, IIED 2 (2013), available at http://pubs.iied.org/pdfs/16514IIED.pdf?.

[32] Takacs, Forest Carbon + Property Rights, supra note 53, at 40.

[33] Porras et al., supra note 80, at 8.

[34] Id. at 10–11, 53; Takacs, Forest Carbon + Property Rights, supra note 53, at 44.

[35] Federico Cheever, Public Good and Private Magic in the Law of Land Trusts and Conservation Easements: A Happy Present and a Troubled Future, 73 Denv. U. L. Rev. 1077, 1081 (1996) (contrasting conservation easements with traditional easements). See generally Gerald Korngold, Private Land Use Agreements: Easements, real Covenants, and Equitable Servitudes (2d ed. 2004).

[36] Jessica Owley, The Emergence of Exacted Conservation Easements, 84 Nebraska L. Rev. 1043, 1075–82 (2006).

[37] Mary Ann King & Sally K. Fairfax, Public Accountability and Conservation Easements: Learning from the Uniform Conservation Easement Act Debates, 46 Nat. Resources J. 65, 71–72 (2006) (describing the Uniform Conservation Easement Act and other state enabling acts).

[38] See, e.g., San Juan Preservation Trust, Conservation Easement, http://sjpt.org/what-you-can-do/conserve-your-land-2/conservation-options/conservation-easements/ (last visited Oct. 7, 2015) (describing conservation easements to protect land in its “natural state”); Southwest Michigan Land Conservancy, Why Protect Your Land, http://www.swmlc.org/content/why-protect-your-land (last visited Oct. 7, 2015) (describing conservation easements as protecting land “in its natural state forever”).

[39] Elizabeth Byers & Karin Marchetti Ponte, The Conservation Easement Handbook 100–115 (2005) (describing conservation easement baseline requirements and offering guidelines for completing a baseline report).

[40] For a discussion and critique of baselines, see generally J.B. Ruhl & James Salzman, Gaming the Past: The Theory and Practice of Historic Baselines in the Administrative State, 64 Vanderbilt L. Rev. 1 (2011).

[41] Nancy A. McLaughlin, Conservation Easements: Perpetuity and Beyond, 34 Ecology L.Q. 673, 708 (2007); Jessica Owley, Changing Property in a Changing World: A Call for the End of Perpetual Conservation Easements, 30 Stan. Envtl L. J. 121, 163 (2011).

[42] Adena R. Rissman, Evaluating Conservation Effectiveness and Adaptation in Dynamic Landscapes, 74 Law & Contemp. Problems 145, 166–67 (2011).

[43] Confidential interviews with land trust employees.

[44] See Owley, supra note 98, at 163.

[45] Alexander R. Arpad, Comment, Private Transactions, Public Benefits, and Perpetual Control over the Use of Real Property: Interpreting Conservation Easements as Charitable Trusts, 37 Real Prop. Prob. & Tr. J. 91, 112–21 (2002) (explaining that the affirmative aspect of conservation easements is often ignored).

[46] Jessica Owley & Adena Rissman, Trends in Private Land Conservation: Increasing Complexity, Shifting Conservation Purposes and Allowable Private Land Uses, 51 Land Use Pol’y 76-84 (2016)

[47] See Jessica Owley, Conservation Easements at the Climate Change Crossroads, 74 Law & Contemp. Probs 199, 223 (2011) (describing both the potential need for and the problems with active land management by conservation easement holders). See also Rissman, supra note 91 (describing role land trust could play in adaptive management while acknowledging the short comings of such organizations).

[48] Federico Cheever & Jessica Owley, Enhancing Conservation Options: An Argument for Statutory Recognition of Options to Purchase Conservation Easements (OPCEs), 40 Harv. Envtl. L. Rev. __ (forthcoming 2016).

[49] Adena R. Rissman et al., Private Land Conservation & Climate Change: Rethinking Strategies & Tools (forthcoming 2015).

[50] Not all state conservation easement statutes will accommodate this structure currently (particularly states that require perpetuity) but many will and experimentation with this tool should begin.

[51] Jesse J. Richardson, Jr., Conservation Easements and Adaptive Management, 3 Sea Grant L. & Pol’y J. 31, 50–51 (2010).

[52] Richard J. Lazarus, Changing Conceptions of Property and Sovereignty in Natural Resources Law: Questioning the Public Trust Doctrine, 71 Iowa L. Rev. 631, 636 (1986).

[53] 2014 IPCC Adaptation Report, supra note 3, at 17.

[54] Coastal adaptation could be expensive. Low-lying countries and small island states face different circumstances and rolling easements will make little sense where there isn’t much room to which to roll, but in larger countries with coastal areas, recognizing protection and public use of coastal areas should acknowledge a flux in that coastal area.

[55] Craig, supra note 63.

[56] Joseph L. Sax, The Accretion/Avulsion Puzzle: Its Past Revealed, Its Future Proposed, 23 Tul. Envtl. L. J. 305, 343 (2009).

[57] W. William Weeks, A Tradable Conservation Easement for Vulnerable Conservation Objectives, 74 Law & Contemp. Problems 230, 235–37 (2011).

[58] The “+” refers to going beyond preserving intact forests and reducing forest degradation, to removing extra carbon from the atmosphere by reforesting degraded land, storing extra GHGs in wetlands, peatlands, and farm lands, and improving forest management. See Takacs, supra note 45, at 658.

[59] Intergovernmental Panel on Climate Change, Climate Change 2014: Mitigation of Climate Change 26 (2014) (internal citations omitted) [hereinafter 2014 IPCC Mitigation Report].

[60] David Takacs, Forest Carbon Projects and International Law: A Deep Equity Analysis, 22 Geo. Int’l Envtl L. Rev. 521, 532 (2010).

[61] For overviews on how REDD+ works, see David Takacs, Environmental Democracy and Forest Carbon, 44 Envtl. L. 71 (2014) [hereinafter Takacs, Environmental Democracy]; Takacs, supra note 45.

[62] Amy E. Duchelle et al., Linking Forest Tenure Reform, Environmental Compliance, and Incentives: Lessons from REDD+ Initiatives in the Brazilian Amazon, 55 World Development 53 (2014). But see Anne M. Larsen, Forest Tenure Reform in the Age of Climate Change: Lessons for REDD+, 21 Global Envtl. Change 540 (2011) (arguing that REDD and REDD+ programs have not been successful at protecting land tenure and securing benefits for local communities); Joanes O. Atela et al., Are REDD Projects Pro-Poor in Their Spatial Targeting? Evidence from Kenya, 52 Applied Geography 14 (2014) (concluding that REDD projects in Kenya were more likely to benefit international companies and low vulnerability areas than to help poor communities).

[63] See H. Carolyn Peach Brown et al., Climate Change and Forest Communities: Prospects for Building Institutional Adaptive Capacity in the Congo Basin Forests, 43 Ambio 759 (2014).

[64] International Sustainability Unit, Emergency Finance for Tropical Forests: Two Years on: Is Interim REDD+ Finance Being Delivered as Needed? 7–10 (2011), http://www.pcfisu.org/wp-content/uploads/2011/11/Two-years-on_Is-interim-REDD+-Finance-being-delivered-as-needed.pdf; see also Forest Trends Initiative, Covering New Ground: State of the Forest Carbon Markets 2013 vii (2013), available at http://www.forest-trends.org/documents/files/SOFCM-full-report.pdf.

[65] See Climate, Community, & Biodiversity Standards 40–46 (3d ed. 2013), available at https://s3.amazonaws.com/CCBA/Third_Edition/CCB_Standards_Third_Edition_December_2013.pdf.

[66] REDD+ Social & Environmental Standards 16–17 (2d ed. 2012), available at http://www.redd-standards.org/images/site/Documents/REDDSESVtwo/REDDSES_Version_2_-_10_September_2012.pdf.

[67] Climate Law & Policy, Unpacking the Warsaw Framework for REDD+ (2014), http://reddcommunity.org/publications/briefing-note-unpacking-warsaw-framework-redd; Gustavo A. Silvez-Chavez, Surprising Development at UN Climate Meetings: REDD+ is Finished, Forest Trends, June 10, 2015, http://forest-trends.org/blog/2015/06/10/surprising-development-at-un-climate-meetings-redd-is-finished/; Subsidiary Body For Scientific and Technological Advice, Methodological Guidance for Activities Relating to Reducing Emissions from Deforestation and Forest Degradation and the Role of Conservation, Sustainable Management of Forests, and Enhancement of Carbon Stocks in Developing (2015).

[68]  Adoption of the Paris Agreement, UN Framework Convention on Climate Change, Conference of the Parties, Twenty-first session, Paris, 12 Dec 2015, FCCC/CP/2015/L.8,

[69] Kerry Ten Kate & Michael Crowe, Biodiversity Offsets: Policy Options for Governments, Input paper for the IUCN Technical Study Group on Biodiversity Offsets i (2014).

[70] Thompson, supra note 23, at 261.

[71] For a conversation with multiple viewpoints, see Karl Mathiesen, Is Biodiversity Offsetting a ‘License to Trash Nature’? Guardian, May 22, 2014, http://www.theguardian.com/environment/2013/nov/12/biodiversity-offsetting-license-trash-nature.

[72] U.S. Fish & Wildlife Service, Conservation Banking: Incentives for Stewardship (2012), available at http://www.fws.gov/endangered/esa-library/pdf/conservation_banking.pdf [hereinafter USFWS, Conservation Banking].

[73] Id.

[74] For a good court explanation, see Sierra Club v. Marita, 46 F.3d 606, 618 (7th Cir. 1995).

[75] USFWS, Guidance for the Establishment, Use, and Operation of Conservation Banks 4 (2003); U.S. Fish & Wildlife Service, Building a Bank Takes More than Just Snakes (2011), http://www.fws.gov/sacramento/outreach/Featured-Stories/BuildingBanksSnakes/outreach_featured-stories_BuildingBanksSnakes.htm; Marita, 46 F.3d at 618.

[76] USFWS, Conservation Banking, supra note 120.

[77] USDA, Natural Resources Conservation Service, Wetland Mitigation Banking, http://www.nrcs.usda.gov/wps/portal/nrcs/main/national/water/wetlands/wmb/ (last visited Sept. 4, 2015).

[78] WARPT: Wetlands-At-Risk Protection Tool, Estimate Wetland Values, http://www.wetlandprotection.org/estimate-wetland-values.html (last visited Sept. 4, 2015).

[79] For an example from Brazil, see Juan David Quintero & Aradhna Mathur, Biodiversity Offsets and Infrastructure, 25 Conservation Biology 1121, 1122–23 (2011); Joshua Bishop, Producing and Trading Habitat, or Land Development as a Source of Funding for Biodiversity Conservation, IUCN World Conservation Union (May 10, 2003).

[80] NSW Government, NSW Biodiversity Offsets Policy for Major Project 8 (2014), available at http://www.environment.nsw.gov.au/resources/biodiversity/140672biopolicy.pdf.

[81] Neil Byron et al., Independent Biodiversity Legislation Review Panel, A Review of Biodiversity Legislation in NSW (2014), available at http://www.environment.nsw.gov.au/resources/biodiversity/BiodivLawReview.

[82] Joseph M. Kiesecker et al., Development by Design: Blending Landscape-Level Planning with the Mitigation Hierarchy, 8 Frontiers in Ecology & Env’t. 261, 265 (2009). 

[83] Id.

[84] Jessica Owley, The Increasing Privatization of Environmental Permitting, 46 Akron L. Rev. 1091, 1092 (2013) (“Many environmental laws appear to prohibit environmental degradation outright, but then contain provisions allowing for environmentally destructive activities after obtaining appropriate permits.); Bruce A. McKenney & Joseph M. Kiesecker, Policy Development for Biodiversity Offsets: A Review of Offset Frameworks, 45 Envtl Mgmt 165, 173 (2010); James Kanter, Companies With Poor Track Records on Environmental Damage Try for Change. N.Y. Times, Oct. 13, 2008.

[85] Tom Tew, CEO of the Environment Bank, quoted in Mathiesen, supra note 119.

[86] Michael Bean et al., Environmental Defense, Private Lands Opportunity: The Case for Conservation Initiatives (2003), available at http://www.fws.gov/southeast/grants/pdf/2677_ccireport.pdf.

[87] Bunn, Mark Lubell & Christine K. Johnson, Reforms Could Boost Conservation Banking by Landowners, 67 Cal. Ag. 86 (2013), available at http://californiaagriculture.ucanr.edu/landingpage.cfm?article=ca.v067n02p86&fulltext=yes.

[88] Jessica Fox & Anamaria Nino-Murcia, Status of Species Conservation Banking in the United States, 19 Conservation Biology 996, 997 (2005). The government of New South Wales, for example, cites this as a major impetus for a move to private biobanking. New South Wales Government, NSW Biodiversity Offsets Policy for Major Projects 8, 33 (2014), available at http://www.environment.nsw.gov.au/resources/biodiversity/140672biopolicy.pdf. The Australian Senate notes that biodiversity offsetting payments could also provide funds to help Aboriginal peoples manage communally owned land. Australia Senate Report Environment and Communications References Committee, Environmental Offsets 24 (2014).

[89] Kate & Crowe, supra note 117, at 10.

[90] Property and Environment Research Center, PERC Enviropreneurs, http://perc.org/programs/perc-enviropreneurs/enviropreneur-institute (last visited Sept. 8, 2015).

[91] See 16 U.S.C. § 1539; [please provide the ESA citation] California Department of Fish and Wildlife, Conservation and Mitigation Banking, http://www.dfg.ca.gov/habcon/conplan/mitbank/ (last visited Sept. 8, 2015); U.S. Fish & Wildlife Service, Guidance for the Establishment, Use, and Operation of Conservation Banks 3–4 (2003); U.S. Fish & Wildlife Service, For Landowners: Recovery Credits and Tax Deductions, http://www.fws.gov/endangered/landowners/recovery-credits.html (last visited Sept. 8, 2015) [hereinafter USFWS, For Landowners: Recovery Credits and Tax Deductions].

[92] USFWS, For Landowners: Recovery Credits and Tax Deductions, supra note 139.

[93] See the plans, vision, and business models of these organizations: Cassina Environmental, http://www.cassinia.com (last visited Sept. 8, 2015); Queensland Trust for Nature, http://www.qtfn.org.au (last visited Sept. 8, 2015); Wildlands, http://www.wildlandsinc.com (last visited Sept. 8, 2015); Westervelt Ecological Services, http://www.wesmitigation.com (last visited Sept. 8, 2015).

[94] Queensland Trust for Nature, http://www.qtfn.org.au (last visited Sept. 8, 2015); interview and site visit with CEO Ben O’Hara (Jan. 11, 2015).

[95] Cassinia, Biolinking Australia, http://www.cassinia.com/#!biolinking/c1u8a (last visited Sept. 8, 2015).

[96] Our interviews in California suggest this is often the case; failure to fulfill the terms of a given offsetting contract means the biodiversity banker will not receive future contracts.

[97]Lee Hannah & Lara Hansen, Designing Landscapes and Seascapes for Change, in Climate Change and Biodiversity 329 (Thomas E. Lovejoy & Lee Hannah, eds., 2005). 

[98] Kate & Crowe, supra note 117, at 10; Kiesecker et al,  supra note 130 at 262.

[99] Joseph M. Kiesecker et al., supra note 146, at 262.

[100] John Hart, Planned Wilderness: A Big Deal for Bay Area Open Space, Bay Nature, Oct. 6, 2011, https://baynature.org/articles/planned-wilderness/.

[101]Daniel Pollak, Natural Community Conservation Planning (NCCP) 21, 34, 41 (2001), available at https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=6388&inline

[102] David J. Hayes, Addressing the Environmental Impacts of Large Infrastructure Projects: Making ‘Mitigation’ Matter 44 ELR 10016 (2014). See also Amy Morris & Jessica Owley, Mitigating the Impacts of the Renewable Energy Gold Rush, 15 Minn. J. L. Sci. & Tech. 293 (2014) (detailing some of the concerns that occur when mitigation plans proceed on a case by case basis and focus on perpetual offsite mitigation).

[103] Hayes, supra note 150 at 10017. See also Bureau of Land Management, Draft Regional Mitigation Strategies and Planning Manual (2014), available at http://www.blm.gov/pgdata/etc/medialib/blm/wo/Information_Resources_Management/policy/im_attachments/2013.Par.57631.File.dat/IM2013-142_att1.pdf [hereinafter BLM, Mitigation Manual].

[104] BLM, Mitigation Manual, supra note 151.

[105] Environmental Defense Fund, Greater Sage-Grouse Habitat Exchange, http://www.edf.org/ecosystems/greater-sage-grouse-habitat-exchange (last visited Sept. 8, 2015).

[106] Environmental Defense Fund, Central Valley Habitat Exchange, http://www.edf.org/sites/default/files/CentralValley_HabEx_factsheet_05.pdf (last visited Sept. 8, 2015).

[107] Kate & Crowe, supra note 117, at ii, 1.

[108] U.S. Fish & Wildlife Service, Greater Sage-Grouse Range-Wide Mitigation Framework, Version 1.0, 3 Sept 2014. Listing of the Sage Grouse as an endangered species is currently warranted, according to USFWS; the agency is attempting to use offsetting as a means to avoid listing and the political headaches and legal battles such listing will incur. Id.

[109] Knicley, supra note 52, at 81.

[110] Amanda Lewis, The Evolving Process of Swapping Debt for Nature, 10 Colo. J. Int’l. Envtl. L. & Pol’y 431, 432 (1999); Knicley, supra note 52, at 81.

[111] For a comprehensive review and critique of such swaps, see Knicley, supra note 52.

[112] Id. at 81, 88; Timothy B. Hamlin, Comment, Debt-for-Nature Swaps: A New Strategy for Protecting Environmental Interests in Developing Nations, 16 Ecology L.Q. 1065, 1080 (1989).

[113] Knicley, supra note 52, at 81.

[114] Id.

[115] Gregg Goldstein, The Legal System and Wildlife Conservation: History and the Law’s Effect on Indigenous People and Community Conservation in Tanzania, 17 Geo. Int’l. Envtl. L. Rev. 481, 483 (2005).

[116] See, e.g., Andy White & Alejandra Martin, Forest Trends, Who Owns the World’s Forests? 5 (2002), available at http://www.cifor.org/publications/pdf_files/reports/tenurereport_whoowns.pdf (showing chart of government ownership in the world’s major forest nations).

[117] Karol Boudreaux, A New Call of the Wild: Community-Based Natural Resource Management in Namibia, 20 Geo. Int’l. Envtl. L. Rev. 297, 308 (2008).

[118] Id. at 300.

[119] Id. at 309.

[120] Id.; Katherine L. Babcock, Note, Keeping it Local: Improving the Incentive Structure in Community-Based Natural Resource Management Programs, 21 Colo. J. Int’l Envtl. L. & Pol’y 201, 207–09 (2010).

[121] Babcock, supra note 168, at 202–03. For a comprehensive overview of effective legal conditions for community based resource management, see Sean T. McAllister, Community-Based Conservation: Restructuring Institutions to Involve Local Communities in a Meaningful Way, 10 Colo. J. Int’l. Envtl. L. & Pol’y 195 (1999).

 

 

Links to previous excerpts in this series are below:

Part 1:  Climate Change, Sustainable Development, and the IPCC’s Fifth Assessment Report, by Robin Kundis Craig

Part 2:  Creating Legal Pathways to a Zero Carbon Future, by John C. Dernbach

Part 3:  Thinking Ecosystems, Providing Water:  The Water Infrastructure Imperative by Keith Hirokawa & Jonathan Rosenbloom

 

 

 

https://lawprofessors.typepad.com/land_use/2016/06/contemporary-issues-in-climate-change-law-policy-part-3-thinking-ecosystems-providing-water-the-wate.html

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