Land Use Prof Blog

Boise burning: The wildfires come for me

Last night, a 1,400-acre wildfire ripped through the foothills just above Boise, threatened communities in the foothills, and threatened to come down into the heart of the city itself.  The timing was meaningful to me because I just posted the first publication of my work on wildfire, which I wrote with several students, on SSRN.  It lays out some of the more important legal tools for wildfire planning.  That paper, "Planning for Wildfire at the Wildland-Urban Interface," is available here.  It is also the forerunner to a much larger publication due out this summer, which will provide a detailed approach to planning for wildfire in the WUI.

In the meantime, this fire has made it all-too-real to me the importance of this project.  Here is a picture from the front porch of my colleague Lee Dillion:

 

 

And here are more images of the fire from a local newspaper:

 

 

Contemporary Issues in Climate Change Law & Policy, Part 5: The Local Official and Climate Change, by Stephen R. Miller

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 fifth post is an excerpt from Prof. Stephen R. Miller's chapter, "The Local Official and Climate Change."  The entire chapter is available here.  Links to previous excerpts are at the bottom of this post.

Buy the book here.

 

 

 

III. Ineffective Institutions for Regulating or Planning Land Use

The Fifth Assessment identified “[t]he urban institution conundrum”: “rapidly urbanizing cities—cities with the greatest potential to reduce future GHG emissions—are the cities where the current lack of institutional capacity will most obstruct mitigation efforts.”[1] The same is true with regard to adaptation efforts as well.[2] This section looks at several aspects of why local development institutions are ineffective and what local officials can do with an eye towards addressing climate change.

Among the reasons urban development institutions fail is not only resources, but also organizational design. Three examples serve to illustrate these failures and their effect on climate change planning: ineffective commission structures; ineffective public participation structures; and ineffective alliance of staff professional goals with climate change goals.

A.    Overcoming Ineffective Commission and Permitting Structures

The proliferation of land use controls in the last 100 years has led to the belief, in some cities, that there is a need for multiple boards or commissions to review different parts of a project.[3] For instance, the rise of historic preservation has led many advocacy groups to create a specific historic preservation committee or commission.[4] In some cities, these commissions give recommendations to planning commissions; in other cities, these commissions have equal status as planning commissions in determining whether a project obtains a certificate of appropriateness or similar entitlement.[5] Other commissions or committees common in many cities include design review boards that apply design guidelines, and transportation-focused groups that address traffic-related issues.[6] Add to these approval complications the bifurcation of land use and building permits, and it becomes clear that decisions about any one project can become highly segmented. This fragmentation can cause problems that lead to either over-regulation—in which case the various regulatory bodies fail to see the burdens imposed by other regulators and duplicate regulation—or under-regulation, in which case the developer can segment the approval process in a manner that frustrates holistic decisionmaking and collective review of the project. 

Such problems could affect climate change in a number of ways, several of which are discussed here.  First, climate change factors should be integrated into permitting processes at the front-end of the development cycle. For instance, the building efficiency of a project should be a factor in whether it obtains a discretionary land use permit.[7] However, in most American jurisdictions, the building permit, and compliance with efficiency codes, occurs in a typically ministerial review and against energy codes that are often not sufficient to meet climate change mitigation necessities.[8] Decisionmaking could be improved by integrating even energy code compliance into land use entitlement processes, something easily done by placing such goals into the comprehensive plans with which most conditional use permits for larger land use projects must comply.[9] If the project does not meet the comprehensive plan energy mandates, it might not receive the discretionary land use entitlement, even if it might otherwise meet the ministerial requirements of an outdated building code.

Second, local permitting should require demonstration of compliance with other state and federal laws prior to obtaining the local permit. Local land use decisionmaking is often not effectively coordinated with other state and federal agency processes that evaluate the project for compliance with other laws, which may currently include, or may come to include, climate change mitigation and adaptation.[10] The facts of Sackett v. Environmental Protection Agency provide a useful example.[11] In Sackett, local officials issued building permits for a project applicant’s local code-compliant home near a lake; the applicant proceeded to build on the bases of those properly issued local permits.[12] However, the U.S. Environmental Protection Agency issued an administrative compliance order to stop work when the project was already under construction because, the agency argued, the project was placing fill material into a jurisdictional wetland and thus needed a Clean Water Act Section 404 permit from the Army Corps.[13] While the outcome of the Sackett case ultimately turned on a procedural question of administrative law,[14] the facts of the case illustrate important institutional issues regarding the lack of integration of local government and other permits. Many local governments issue land use and building permits with standard conditions, which typically include the requirement that the project applicant must comply with all other state and federal laws. Problems arise, however, where local government issues land use and building permits without verifying compliance with those other laws. As in the case of Sackett, the local government likely could have foreseen the necessity of a Clean Water Act fill permit for a home being built near a lake—even though the Sacketts as developers contested that requirement—but the local government did not require that the fill permit be on file or otherwise ensure compliance with other laws before issuing its building permits.[15] This is poor institutional practice. 

It is true that it can be difficult for local governments, especially those in states that do not require environmental review of private projects, to ensure compliance with the raft of potentially applicable state and federal environmental regulations. However, local governments need not shoot in the dark: the local government could simply have a policy of sharing all applications with local offices of state and federal permitting officials seeking their guidance, as is common with the lead agency and cooperating agency distinction under the National Environmental Policy Act.[16] By using the local government permit as the coordinating permit for compliance with other state and federal laws, local officials can ensure that a situation like that in Sackett is avoided, which also aids the project applicant in ensuring that the applicant does not necessarily spend money or time on a project that will run afoul of other regulations. This coordinated approach, while valuable for many land use and environmental purposes, would also prove useful in ensuring climate change mitigation and adaptation compliance. Further, it should be noted that this process should not lengthen the entitlement timeframe because the project applicant cannot properly begin construction until all permits are obtained in any case.

B.     Overcoming Ineffective Public Participation

The last several decades have seen a great emphasis on public participation in local government decisionmaking.[17] This has included, among other changes, increased participation for neighborhood groups, as well as increasing access to GIS tools that permit the community to offer their own project alternatives.[18] Nevertheless, despite these additional procedural and technological tools to enhance community engagement, public participation routinely fails to prove effective in basic ways. Most importantly, public participation is typically focused on quasi-judicial proceedings against particular projects where the community shows up solely to oppose the project. In these situations, despite hours long meetings in which tens or even hundreds of community members offer comments, there is typically no real discussion of project alternatives. Instead, public participation typically involves a litany of reasons that oppose the particular project.

This is a poor use of the public process. Surely, in some cases, the project under review deserves wholesale rejection. However, if the project complies with the community’s basic land use documents—the comprehensive plan, zoning, and so on—then it is likely not without some merit. A better public participation process would address not only whether the project should be approved in its current iteration, but more importantly, how the project might be altered or otherwise provide mitigations that would make the project acceptable to the community.[19] This broader analysis requires a far more searching review of community goals than simply rejection or acceptance of the project; indeed, it invites conversation between city officials, the community, and the developers as to what the future of the community should be. That conversation is seldom had in quasi-judicial proceedings, but it should be, especially in situations where climate change mitigation and adaptation are at stake.

Further, in many communities, public participation is simply not a component of those processes where the real planning for the future takes place:  in the legislative determinations of how to structure the comprehensive plan and zoning. For the interested public seeking to make a difference with regard to climate change, participation in these legislative processes is instrumental to ensuring that the community’s development rules are climate-friendly.[20] Local officials can make climate change part of the legislative process by actively engaging the conversation in a manner that is appropriate to the community.[21] This engagement can include public meetings, but, increasingly, online and social media participation can be valuable. Many local communities have adapted climate action plans over the last decade, but many have taken the approach of primarily providing a common language for engaging climate rather than providing actionable regulatory compliance measures.[22] The common language assists with the previously noted goal of providing a common vision, but ultimately communities will need to find a way to move climate compliance from policy to law.

C.    Overcoming Staff Reluctance To Engage

While staff can be a great resource both for implementing existing policies as well as creating new policies, there are often significant barriers to staff effectively addressing long-term problems such as climate change. These impediments can be doubly strong in fast growth communities.

First, planning departments are often funded from fees paid by developers.[23] This mandate for planning departments to “pay their own way” can create a culture in which leadership establishes a mandate to please its perceived customer—the developer—because the department’s continued existence is dependent upon such applications. Clearly, such a mindset can make it difficult to have hard conversations with developers; it can also obscure calls in existing plans to require or encourage types of development that may not be popular with the community’s extant development sector but that might assist with climate mitigation or adaptation. Staff who work under such conditions can find themselves evaluated on the basis of how they please the customer-developer rather than with respect to the verve with which they maintain the integrity of the code or exhibit creativity in assisting project applicants with climate-friendly alternatives. 

            Second, planning is an occupation in which there is continued ambivalence about professionalization.[24] While many planning departments in major cities require some form of advanced graduate work in planning for their staff, fast growth areas often do not. As a result, many planners faced with the inordinate challenges of fast growth have no formal training in the history of land use regulation, much less regarding cutting-edge strategies for addressing long-term issues like climate change. What training that does occur in fast-growth areas tends to focus on assisting processing of applications—making the day-to-day business of the department function smoothly—rather than on contemplating alternatives that could improve a community’s mitigation of and adaptation to climate change. In these circumstances, with project applications piling up and pressure from developers to get to a hearing, finding time to learn about climate change, much less draft language and engage departmental leadership on the issue, can feel like trying to shoot the moon.

 

[1] 2014 IPCC Mitigation Report, supra note 9, §12.6.1.

[2] 2014 IPCC Adaptation Report, supra note 9, §8.4.3.4.

[3] For instance, Boise is a prime example of a still small but fast-growth city with multiple agencies. See, e.g., City of Boise, Idaho, City Code §§ 2-02-01 et seq. (Airport Commission); id. §§2-06-01 et seq. (Planning-Zoning Commission); id. §§2-07-01 et seq. (Development Impact Fee Advisory Committee); id. §§2-16-01 et seq. (Public Works Commission); id. at §§ 2-17-01 et seq. (Arts and History Commission); id. §§2-20-01 et seq. (Irrigation Commission); id. §§2-21-01 et seq. (Housing and Community Development Advisory Committee); id. §§2-23-01 et seq. (Foothills Conservation Advisory Committee); id. at §§ 2-25-01 et seq. (Boise City Accessible Parking Committee); Ada County Highway Dist., Policy Manual, http://www.achdidaho.org/AboutACHD/PolicyManual.aspx (district controls all roads in Boise City).

[4] City of Boise, Idaho, City Code § 4-13-03 (2015) (designating Boise City Historic Preservation Commission as entity tasked with reviewing historic buildings).

[5] Id.

[6] See supra note 38.

[7] See, e.g., City & Cty. of San Francisco, Cal., General Plan, Environmental Protection Element, Objective 13, Enhance the Energy Efficiency of Housing in San Francisco, http://www.sf-planning.org/ftp/general_plan/I6_Environmental_Protection.htm#ENV_EGY_12 (last visited Oct. 9, 2015).

[8] See, e.g., 7 Miller & Starr Cal. Real Est. §25:25 (4th ed. 2015) (“As a general rule, the building official is required to issue a permit if the application is in order, the proposed use is one permitted by the zoning ordinance, the proposed structures comply both with zoning conditions and with the applicable building codes, and any other conditions imposed on the development or subdivision approval.”).

[9] See supra note 41.

[10] 2014 IPCC Mitigation Report, supra note 9, §12.5.3.

[11] 132 S. Ct. 1367 (2012).

[12] Complaint for Declaratory and Injunctive Relief, Sackett v. United States Environmental Protection Agency, 2010 WL 7634112 at *7 (2010) (“[The Sacketts] applied for and obtained the requisite building permits.”).

[13] Sackett v. E.P.A., 132 S. Ct. at 1370.

[14] Id. at 1371 (holding that the administrative compliance order was a final agency action for purposes of the Administrative Procedure Act and thus petitioners could seek judicial review of the order under the Act).

[15] Id. at 1370.

[16] 40 C.F.R. § 1501.5 (2015) (duties of lead agencies); 40 C.F.R. § 1501.6 (2015) (duties of cooperating agencies).

[17] See, e.g., Lawrence Susskind et al., Mediating Land Use Disputes: Pros and Cons (Policy Focus Report) 2–5 (Ann LeRoyer ed., Lincoln Institute of Land Policy 2000).

[18] Craig Anthony Arnold, The Structure of the Land Use Regulatory System in the United States, 22 J. Land Use & Envtl. L. 441, 476 (2007) (noting that “increasingly neighborhood residents are actively participating in developing plans and land use regulations for their neighborhoods through techniques like design charrettes, scenario development, impact assessment, [and] participatory land use mapping”).

[19] Some have argued that the current air of uncertainty created by Koontz would make such consideration of alternatives more difficult. See Lee Anne Fennell & Eduardo M. Peñalver, Exactions Creep, 2013 S. Ct. Rev. 287, 287–88 (2014) (“By beating back one form of exactions creep—the possibility that local governments will circumvent a too-narrowly drawn circle of heightened scrutiny—the Court [in Koontz] left land use regulation vulnerable to the creeping expansion of heightened scrutiny under the auspices of its exactions jurisprudence.”). On the other hand, it is ironic that environmental review statutes typically require the presentation of project alternatives and thus, in those states with mini-NEPAs, the environmental review process necessitates that the land use process also envision alternatives. See Cal. Pub. Res. Code § 21002 (2015) (California Environmental Quality Act requires that “public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects” of the project.).

[20] 2014 IPCC Adaptation Report, supra note 9, § 8.4.2.2.

[21] See Maarten K. van Aalsta, Terry Cannonb & Ian Burtonc, Community Level Adaptation to Climate Change: The Potential Role of Participatory Community Risk Assessment, 18 Global Environmental Change 165 (2008).

[22] See, e.g., California Jurisdictions Addressing Climate Change, Cal. Office of Planning & Research (July 7, 2014), http://www.ca-ilg.org/sites/main/files/file-attachments/california_jurisdictions_addressing_climate_change_pdf_0.pdf (list of local governments in California that have adopted plans “to address climate change and/or to reduce GHG emissions”).

[23] See, e.g., Facts, City & Cty. of San Francisco Planning Dept., http://www.sf-planning.org/index.aspx?page=3419 (noting that, in 2012, total revenue was $24,604,399 and fees accounted for $19,630,295 of costs with just $1,905,311 in General Fund support).

[24] Becoming a Planner, Am. Planning Ass’n, https://www.planning.org/aboutplanning/becomingaplanner.htm (“In 2004, 43 percent of all APA members (note: approximately one-sixth of the APA members are planning commissioners, officials, or students, who do not have a degree in planning) had earned a master's degree in planning.”).

 

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

Part 4:  Flexible Conservation in Uncertain Times, by Jessica Owley & David Takacs

Condemning Easements on a Conservation Easement in Kentucky

A unpublished Kentucky case on conservation easements highlights a bunch of things I have been grappling with lately. Thought I'd check in with our readers to see if anyone else has thoughts on Crain v. Hardin County Water District No.2, 2016 WL 3453206, Court of Appeals of Kentucky, June 17, 2016 (unpublished, not to be cited).

The Crains own a 270-acre farm in Hardin County, Kentucky. It has been in the family for generations. In 2004, the Crains conveyed an agricultural conservation easement (ACE) to the Purchase of Agricultural Conservation Easement Cooperation, which is part of the Kentucky Department of Agriculture. In 2013, the Water District decided to build a sewage line through the Crains' property (to facilitate development of a nearby industrial site. The parties were unable to negotiate a price for either fee simple purchase of the area needed or of an easement. The District began the eminent domain process, and through it we learn a few interesting things about CEs.

• Subsurface Land Uses: When the Crains and the District were still in negotiation phase, the Crains expressed concern that a planned pump station would conflict with the ACE. In response, the District agreed not to place any air release valves or any above-ground facilities on the Crains’ property. This brings to mind a discussion I have been in lately with a few people about subsurface disturbance and CEs. Do we automatically assume that all subsurface use of the land is consistent with ACE? Should we take into account likelihood of associated problems like subsidence or leaks? Do we feel less nervous about sewage lines than we might feel about oil or gas lines? Could a landowner or CE holder ever object to subsurface development?
• Condemnation not interfering the CE: There have been many discussions in the land trust community about how eminent domain and CEs. Usually these conversations are dominated by issues of calculating compensation assuming that the exercise of eminent domain on the land will remove the CE. Here, the District contended that the proposed acquisition of utility easement would not interfere with the ACE, whose restrictions would still govern. Indeed, both the state agency holding the ACE and the District agreed that the utility easement would be secondary to the ACE.
• Condemnation in Kentucky: Here, the state CE statute specifically considers eminent domain (a rarity) and explains that certain categories of use are inconsistent with restricted agricultural land. “Landfills, sewage treatment plants and other public service facilities” shall not be located on such lands. But, installation of utility lines (including sewer lines) is specifically permitted. The court found that this was a sewer line and clearly permitted.
• Standing: Here, neither the state agency holding the Agricultural Conservation Easement nor the third party enforcer (the United States Department of Agriculture) challenged the utility easement condemnation process. The landowner argued that the utility easement would be inconsistent with the ACE but the trial court held that the Crains did not have standing to assert the position. The idea seems to be that only a CE holder or someone with an established third party enforcement right have standing to make a challenge based on the CE, not the landowner. While the Court of Appeals does not clearly state that landowners do not have the authority to enforce CEs, it doesn’t examine the CE document to see whether a utility easement would be consistent with it. Presumably this is because the District and holder agreed that the utility easement would play second fiddle.
• Prior Public Use Doctrine: Now, this is a fun one and an argument I had not contemplated before. The prior public use “doctrine provides that land devoted to a public use may not be taken for another public use under the power of eminent domain” in Kentucky. The Crains argued that the ACE was a prior public use, but the court did not agree. Quoting an earlier case, the court explained that just because the public receives some benefit from the land, it doesn’t “mean that the land is being used for a public purpose.” Crain at 4 (quoting Kipling v. City of White Plains, 80 S.W.3d 776 (Ky.App. 2001)). Neither this property covered by an ACE nor the Kipling property that was in an agricultural district had enough of a link to public use. BUT might the answer be different if it was an exacted CE? What if the CE under threat of eminent domain was set aside to satisfy requirements of the Clean Water Act or even just a local development law? Would it change the level of public use? I believe habitat and wetlands easements would easily meet this test. Perhaps a fun tool in the arsenal, but a circumstance that will seldom arise.

Call for Papers & Presentations: Idaho Law Review Symposium: Livestock Grazing on Public Lands: Law, Policy & Rebellion

I am delighted to be the faculty adviser for the 2017 Idaho Law Review symposium, which is seeking papers and presentations on the topic below.  The students run this show, but I am always happy to answer questions, too.

 

CALL FOR PAPERS OR PRESENTATIONS

***

Livestock Grazing on Public Lands:  Law, Policy & Rebellion

2017 Idaho Law Review Symposium

The Idaho Law Review invites you to participate in its 2017 symposium, Livestock Grazing on Public Lands:  Law, Policy & Rebellion, to be held in Boise, Idaho on March 31, 2017.  Livestock grazing on western public lands is a complicated, and often hotly contested subject that deeply influences the economies of rural western places.  The Bureau of Land Management currently administers 8,000 permits and leases for livestock grazing, mostly cattle and sheep, on 21,000 allotments that cover nearly two-thirds of the country’s federal public lands.  How grazing is managed on such federal public lands, as well as state-owned and tribal lands, plays a singular role in the future of the rural West.  Conflicts over grazing have also proven an on-going source of anti-government sentiment, from the Seventies’ Sagebrush Rebellions to recent occupation of the Malheur National Wildlife Refuge and the transfer of public lands movement. 

We seek papers or presentations that investigate the topic generally.  Issues that may be addressed include:

• How should grazing on public lands be managed?
• With increased litigation against federal agencies, should there be a restructuring of livestock grazing laws?
• What are the legal challenges with managing for both grazing of livestock and wildlife (sage grouse, big horn sheep, other endangered species issues)?
• Are there legal solutions to managing both wildlife populations and livestock grazing efficiently on public lands?
• How can communities come up with creative and productive solutions to disagreements on public grazing?
• How can private landowners effectively manage for both livestock grazing and wildlife populations and comply with Endangered Species Act or other federal guidelines?
• What are the implications of using grazing as a tool to eliminate fire hazard and should this be included in federal fire management plans?
• How do Tribal permitting processes differ from other grazing permitting?
• With limited resources, how can land managers best use lands for most beneficial uses?
• How does the resurgence of the Sagebrush Rebellion, especially the recent standoff in Malheur County, affect policy decisions going forward?
• Are there any other legal effects of the Sagebrush Rebellion or other “take-back-the-public-lands” movements?
• What are economic and legal consequences of open range laws versus herding district laws?
• How might private land conservation, such as conservation easements or agricultural easements, assist grazing on public lands?

Symposium papers or presentations addressing the topics above—or others proposed—will be presented at the conference with publications appearing in the Symposium volume in Spring, 2017.  We are especially interested in shorter essays (roughly 6,000 to 10,000 words, including references).  We will also consider proposals for presentations without essay contributions.  Draft abstracts of no more than one page and queries may be addressed to Kaycee Royer, Chief Symposium Editor, at [email protected], as soon as possible and no later than August 1, 2017.

Travel expenses will be paid for presenters of accepted papers or presentations.

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.

 

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

 

 

 

Contemporary Issues in Climate Change Law & Policy, Part 3: Thinking Ecosystems, Providing Water: The Water Infrastructure Imperative, by Keith Hirokawa & Jonathan Rosenbloom

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 third post is an excerpt from Profs. Keith Hirokawa and Jonathan Rosenbloom's chapter, "Thinking Ecosystems, Providing Water:  The Water Infrastructure Imperative."  The entire chapter is available here.  Links to previous excerpts are at the bottom of this post.

Buy the book here.

Excerpt:

III. Greening the Gray: Climate Preparedness through Ecosystem Services Implementation

In this final part, we begin what we hope is a sustained dialog about where and how ecosystem services can be implemented at the local level to help provide water-based services. The areas of focus and the examples below are meant to illustrate the benefits of ecosystem services planning. They also showcase opportunities where cities and communities are investing in ecosystem functionality to ensure that ecosystems performing at a fraction of the cost of built infrastructure while illustrating that implementing ecosystem services at the local level can occur in many ways, from broad-based approaches (such as “low impact development” practices described in Section A) to specific ordinances (such as mitigation of urban forest losses set forth in Section B) [Sections A and B available in full text version at link above]. In addition, ecosystem services may apply to diverse and core local legal instruments, including comprehensive plans, zoning and building codes, and water distribution regulations.

1. Low Impact Development

One example of green infrastructure for reducing stormwater impacts has been “low impact development” (LID) practices. LID generally refers to conservation-based land use strategies that minimize impervious surfaces and emphasize the use of natural features and native vegetation as stormwater control tools. Common implementation programs include reduction of lot sizes and parking lot sizes while maintaining overall density (and preserving open space), rooftop capture of stormwater, downspout disconnection, adjusting curb design to capture instead of transport stormwater in vegetated swales, replacing impervious surfaces with permeable surfaces, and increasing vegetation on development sites. Common targets for these practices are parking lots, roads and driveways, street curbs, rooftops and residential and commercial developments. In recent decades, many communities and municipalities have implemented LID practices to control stormwater flows and improve water quality, especially in communities suffering the challenges of combined sewer overflows (CSO).

A study commissioned by Pierce County, Washington, illustrates some potential LID practices in local residential subdivisions. The consultant was directed to evaluate the costs and benefits of implementing green infrastructure solutions to the stormwater impacts caused by new development. The report analyzed a typical lot size, but on atypical developments that incorporated LID practices. The report described the following:

[T]he LID design attempts to reduce the severity of the changes in the landscape thereby reducing the change in the hydrology from the predeveloped state. Mitigation for changes in the landscape are completed as close to the source of runoff as possible with nonstructural [best management practices] such as swales, bioretention areas, and open spaces. If designed correctly and allowed to function without encroachment from incompatible uses these stormwater treatments should function much more like natural systems thereby meeting the goal of maintaining the predeveloped hydrology of the site.[1]

The report identified significant benefits from the use of green infrastructure techniques and provided support for the notion that green infrastructure can facilitate stormwater infiltration at volumes closer to natural and background levels of stormwater control. These designs also incorporate air and water filtration through the protection of vegetation and wetlands, reductions to habitat impacts, and reduced peak flows through groundwater infiltration. Interestingly, the report also identified “non-quantified benefits,” which included a reduction in automobile traffic as a result of the creation of a more walkable neighborhood, as well as environmental literacy benefits by including residents in the water quality process.[2]

The approach set forth in the Pierce County Report exemplifies the initiatives taken by local governments across the nation to infuse infrastructure planning with ecosystem concepts. New York City, for example, has committed roughly $2.4 billion to green infrastructure practices over the next 18 years to integrate green roofs and streets, bioswales, and other natural systems to manage stormwater. This approach is intended to reduce the amount of “contaminant-latent water” flowing into the waterways. The City of Philadelphia has committed $1.2 billion to green infrastructure over the next 25 years to manage stormwater, including the conversion of 9,600 impervious acres into permeable surfaces. Washington, D.C., has proposed nearly $60 million in green infrastructure along its Rock Creek waterway and another $30 million along the Potomac River. These projects will capture pollutants and retain stormwater to prevent flooding, while providing green space and recreational opportunities. Portland, Oregon, has launched a campaign to promote rooftop rainwater capture, downspout disconnection, curb cuts to feed runoff water into bioswales, and permeable road surfaces to complement Oregon’s smart growth system.

These examples of LID practices implement an ecosystem services approach by using natural processes to control and mitigate stormwater flows. As a component of the local land use regulatory process, LID practices integrate resiliency by improving the natural environment and the dependency on gray, temporary solutions.

1. Urban Forests as Water Infrastructure

In addition to LID practices, cities are looking to forests to help ensure the provision of water-based services. From the forestry perspective, urban forests are relevant to an ecosystem services analysis because urban trees are engaged where people live, work, and play. From the infrastructure perspective, urban forests are relevant because of the critical and essential services they provide.[3] The shade offered by urban trees results in lower climate control costs. Trees capture air pollutants, provide shelter and food for urban critters, and even contribute community assets such as neighborhood attractiveness and property values.  For our purposes here, urban forests also provide substantial stormwater control services by retaining soils and by capturing and filtering stormwater, resulting in cleaner water and reducing flood flows. Urban forests illustrate the importance of ecosystem function and transform our understanding of nature “from amenity to living technology.”[4]

Some local governments protect these values by requiring tree removal applications, imposing stringent tree replacement requirements, and mandating the planting of native species.[5] Other cities incorporate urban forest resources throughout their land use planning scheme because of the significant economic benefits they accrue as infrastructure. For instance, the City of Vancouver, Washington, has noted in its comprehensive plan that, “unlike traditional grey infrastructure capital improvements, such as transportation and water systems, which begin to depreciate as soon as they are installed, green infrastructure accrues value and provides greater services as time passes.”[6] As part of its comprehensive plan, the City of Vancouver has been active in protecting its urban forest resources for some time. Currently, urban forestry is included as part of the city’s compliance with state stormwater control requirements. To protect the benefits of urban trees, the City of Vancouver has created an urban forestry commission,^[7] adopted regulations to protect street trees,^[8] and regulated clearing in priority habitat areas to maintain “habitat function and value.”^[9] In its tree conservation ordinance, Vancouver also regulates the destruction or removal of “any tree” without an approved tree plan.^[10] Development applicants under this program are required to preserve any tree that could be protected by selection of a “feasible and prudent location alternatives on-site” for the project.^[11] Development applicants must also demonstrate meeting the minimum 30 tree units per acre for most projects.^[12]

Vancouver estimates that its tree canopy captures enough stormwater to save $12.9 million in avoided construction costs for stormwater retention structures and $78.3 million in air pollutant removal services. Vancouver estimates an annual net benefit per tree of $1 to $8 for small trees, $19 to $25 for medium-sized trees, and $48 to $53 for large trees. Vancouver has stated:

Improving aesthetics of our community has tangible economic benefits. Systems of open space and bike trails give a community a reputation for being a good place to live and visit. Increased recreational and community activity attracts new businesses and stimulates tourism. Well-maintained trees improve residential “curb appeal” and increase potential buyers’ willingness to pay a 3–7% premium for property. Trees in retail settings increase shoppers’ willingness to pay for goods and services by 12%.[13]

            Tree protection programs similar to Vancouver’s stand apart from conventional water infrastructure wisdom. Without pipes and dams to measure, urban forestry programs break free of preferences for the built environment. Yet tree protection programs typically provide added societal benefits and critical functions needed in water infrastructure at a substantially decreased cost and with a longer lifespan.

1. City Creation and Infrastructure Planning

A third example of innovative, ecosystem-based infrastructure planning is illustrated in the City of Damascus, Oregon. When Damascus was drawn into the Portland Urban Growth Boundary in 2002, public infrastructure served only 10% of its area.[14] Damascus subsequently incorporated and took on significant infrastructure responsibilities.[15] The cost for constructing built infrastructure and public services was estimated at $3 to $4 billion.[16] In the process of developing a comprehensive land use plan and an ecosystem services master plan,[17] the City prioritized ecosystem services as a component of its utility infrastructure and stormwater management “to forestall increased costs to the citizens of Damascus. These increased costs take the form of built infrastructure to replace the service (as in stormwater management), increased regulatory compliance hurdles (as in Clean Water Act and Endangered Species Act compliance), and loss of quality of life.”[18] The City prepared a public facilities plan that mapped the existing ecosystem services to develop “relative level of service (LOS)” that incorporated the location and quality of the ecosystem services.[19] With input from service providers and the public, Damascus developed an Integrated Water Resource Management Plan (IWRMP) “to establish an integrated, cost-effective, and sustainable approach for providing water, wastewater, reclaimed water, and stormwater services to new and existing development in the City.”[20]

The City of Damascus has not completed its infrastructure, and in likelihood, the road ahead will be complicated. In the summer of 2015, the City was presented with an infrastructure white paper that detailed an accounting of the needs and assets required to maintain an effective water infrastructure. The white paper referred to the City’s ecosystem services obligations in its capital facilities plan.[21] It relied on the capital facilities plan map previously produced that located gray infrastructure based in part on minimizing interruption of ecosystem services. On the other hand, the City has not yet adopted the LID concepts that were intended to govern new development and integrate ecosystem services ideas. Even worse, the white paper does not illustrate the importance of ecosystem services in the accounting for infrastructure needs. Rather, the white paper provides a needs assessment for new pipes and culverts, roads, and treatment facilities.[22]

The example of Damascus is interesting from a resiliency planning standpoint because of the breadth of the challenge: because Damascus’ water infrastructure was, in a sense, starting “from scratch,” it was not bound to conventional formulae and engineering preferences. Under these circumstances, the idea of accounting for ecosystem services and ecosystem vulnerabilities as a launching point for infrastructure planning is a great experiment. In the climate change era, many, if not most, cities will undergo transformation and will bear the burden of reinvention as climatic changes are more extreme and vulnerabilities become more pronounced. Cities will have opportunities to rebuild.

 

[1] Pierce County, Pierce County Low Impact Development Study 38–39 (Apr. 11, 2001), available at http://www.co.pierce.wa.us/archives/150/LID%20Report%20final%20complete.pdf.

[2] Id. at 39.

[3] Trees in urban areas “soothe eyes and spirits, they shade, they form special places for recreation or relaxation, they provide habitat for birds and other wildlife, they purify the air, and they increase the market value of real estate.” Henry W.  Lawrence, The Neoclassical Origins of Modern Urban Forests, 37 Forest & Conservation Hist. 26, 35 (1993).

[4] E. Gregory McPherson, Accounting for Benefits and Costs of Urban Greenspace, 22 Landscape & Urb. Plan. 41, 41 (1992).

[5] For instance, the Township of Jackson, New Jersey, has declared that its trees are “important cultural, ecological, scenic and economic resources” and regulates land uses to preserve tree canopy, biomass production, air filtering and oxygen production. Jackson, N.J., Admin. Code §100:A (2003). Applications must be accompanied by a reforestation plan and may be denied where the proposed activity indicates “any negative effect upon ground and surface water quality, specimen trees, soil erosion, dust, reusability of land, and impact on adjacent properties.” Id.; see also New Jersey Shore Builders Association. v. Township of Jackson, 970 A.2d 992 (N.J. 2009) (in which the New Jersey Supreme Court upheld the Jackson Ordinance).

[6] City of Vancouver, Vancouver Urban Forestry Management Plan 7 (Dec. 2007), available at http://www.cityofvancouver.us/parksrecreation/parks_trails/urban_forestry/pdf/UFMP_final-web.pdf. See also Vancouver Watersheds Alliance, Report of 2014 Activities by the Vancouver Watersheds Alliance Supporting Vancouver’s NPDES Phase II Permit (2014), available at http://www.cityofvancouver.us/sites/default/files/fileattachments/public_works/page/1125/5c_vwa2014annualreport.pdf.

[7] The purpose of the Urban Forestry Commission for “managing, conserving and enhancing the existing trees located in the parks and public areas owned by the city of Vancouver and in public right-of-way, and thereby enhancing the appearance of the city and protecting an important environmental and economic resource. . . .”  Vancouver, Wash. Mun. Code 12.02.010 (2009).

[8] Vancouver, Wash. Mun. Code 12.04 (2006).

[9] Vancouver, Wash. Mun. Code 20.740.110 (2009).

[10] Vancouver, Wash. Mun. Code 20.770.020.A (2004).

[11] Vancouver, Wash. Mun. Code 20.770.070.B.1 (2004).

[12] Vancouver, Wash. Mun. Code 20.770.080 (2007).

[13] City of Vancouver, supra note 36, at 9. In the Vancouver Municipal Code, the City declares that trees are protecting and valuable for the following functions: 1. Increasing the air quality with the absorption of air pollutants, assimilation of carbon dioxide and generation of oxygen, and with the reduction of excessive noise and mental and physical damage related to noise pollution; 2. Minimizing the adverse impacts of land disturbing activities and impervious surfaces on runoff, soil erosion, land instability, sedimentation and pollution of waterways, thus, minimizing the public and private costs for stormwater control/treatment and utility maintenance; 3. Cost-effective protection against severe weather conditions with cooling effects in the summer months and insulating effects in winter; 4. Providing habitat, cover, food supply and corridors for a diversity of fish and wildlife; and 5. Economic support of local property values and contribution to the region’s natural beauty and enhancing the aesthetic character of the community. Vancouver, Wash. Mun. Code 20.770.010 (2004).

[14] Anita Yap et al., Ecosystem Services & City Planning: The City of Damascus Develops a Model Approach to Public Facilities Planning, Or. Insider 1, 4 (Aug. 2009), on file with the authors.

[15] Id. at 1.

[16] Id.

[17] Id. at 3, 9.

[18] Work Session, City of Damascus City Council, Ecosystem Services – Executive Summary from the Tier II Ecosystem Services Report ES-1 (2010), on file with the authors.

[19] Id.

[20] CH2MHILL, Damascus Integrated Water Resources Management Plan ES-1 (2011), available at http://ci.damascus.or.us/References/Misc/Draft_Damascus_IWRMP_07062011.pdf.

[21] The white paper notes, “In addition to the traditional public facilities, the plan also took into consideration ecosystem services, which are the unique and irreplaceable service provided by the existing natural resources such as air and water quality, stormwater management, erosion control, and fish and wildlife habitat.” Infrastructure White Paper, City of Damascus 3-4 (June 22, 2015), http://www.damascusoregon.gov/AgendaCenter/ViewFile/Agenda/06252015-397.

[22] Id. at 6–11.

 

 

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

MIT's Projections journal focuses on relationship between law and planning

The latest edition of MIT's Projections, which is written primarily by doctoral planning students with some professors mixed in, focuses upon "new approaches to law and planning."  You can download the journal here.  In particular, the introductory essay by Karthik Rao-Cavale is of interest as it addresses the relationship between the fields of planning and law and proposes areas of future dialogue that may be especially fruitful.  Worth a read.

Save the Date: Oct. 7: State & Local Government Law Works-in-Progress Conference

The University of Houston Law Center will be hosting the 5th Annual State & Local Government Law Works-in-Progress Conference on Friday, October 7, 2016 and Saturday, October 8, 2016.  Scholars and practitioners writing in areas related to state and local government law are invited to attend and/or present works in progress. A formal call for papers will follow during the summer.   Registration will take place in late August, and the deadline for papers and abstracts will be in mid-September.  The conference will provide an opportunity for state and local government law scholars and practitioners to present works-in-progress and receive feedback from colleagues.  Questions should be directed to Kellen Zale at [email protected].

Comments of a former mayor at the monument dedication for Euclid v. Ambler Realty

Yesterday I posted about the unveiling of a monument to Euclid v. Ambler Realty, courtesy of Michael Allan Wolf.  Prof. Wolf has also kindly shared the comments of former Euclid mayor Paul Oyaski upon the placement of the monument.  Mr. Oyaski's comments are reproduced below with his permission:

June 9, 2016 Euclid v. Ambler Realty Historic Marker Dedication

Greetings to Euclid’s 14^th Mayor, distinguished guests, friends and neighbors, especially fellow members of the Euclid Historical Society.   Every day is a fine day to be in Euclid but today…is an auspicious and historically fine day.   We are thankful for the many sponsors that made this marker a reality.

I have been asked to tell the story behind the lawsuit that made the Village of Euclid nationally famous.

In short:  Why are we here?

Historic events occur when, at a particular time and place, a battle occurs involving important principles and featuring memorable leading personalities. The resolution of that battle has far reaching impacts. This is what happened with The Village of Euclid v. Ambler Realty.   It is also the story of David v. Goliath during the Roaring Twenties.

What were the particular time and place like when this battle began?   When the Village Council passed Ordinance 2812 in November 1922, it was only a few short years after the First World War and the worldwide flu epidemic which had caused millions of deaths.  Women could vote but no one could drink. The Cleveland Indians had recently won the world series.   The Terminal Tower had not been started. Most of the mansions on Millionaire’s Row remained.   796,000 people lived in Cleveland. 84% of county residents then lived in the central city. Today, barely 31% of county residents live in Cleveland.

Euclid was home to less than 4000 residents and less than a thousand dwellings, mostly located near the old downtown area by Chardon and Euclid.  265 people lived in Richmond Heights and only 851 lived in Mentor. Smaller versions of Shore, Central, Noble and Roosevelt schools existed.   The Village had two interurban (or, early rapid transit) trains running  through it as well as two standard railroads, the New York Central to the north and the Nickel Plate to the south at the rear of this parcel.   The Village’s population was less than one percent of that of Cleveland.   Euclid’s streets were named, not numbered.  E 222^nd was Bliss Road,  260^th was Upson, 200^th was Cutt Road. When the small Village and its leaders took on the major Cleveland property developer Ambler Realty who owned this site, it truly was a case of David standing up to Goliath. 

The legal battle between competing interests began when the Village passed the comprehensive zoning ordinance, which set forth detailed rules regulating how all private property could be developed. The ordinance set forth rules for the height of structures, rules for how much of a parcel could be built upon and the major bone of contention, rules limiting how private property owners could use their property, such as single family residential or industrial. 

Before government-passed zoning ordinances, differences between private property owners were addressed in civil court by the individuals involved relying on older legal concepts like nuisance, trespass and breach of contract.  In keeping with the spirit of the Progressive Era, comprehensive zoning ordinances with a variety of restrictions, especially on the use of private property, were new creations.  They were viewed by many as a modern, systematic and efficient way to regulate land use. 

Euclid’s zoning ordinance was not the first such ordinance adopted in the United States.   But Euclid, the “mere” suburb of giant Cleveland became the target of the first federal lawsuit alleging that the ordinance in its entirety was unconstitutional for violating the due process rights, the liberty interests and the equal protection rights of the owner of this then 68-acre property, Ambler Realty.   The Euclid ordinance determined that Ambler’s parcel would have to be used for single or two family residences only along the Avenue.   Only the rear portion of this parcel next to the railroad could be used for industrial purposes.  Ambler was very unhappy with these restrictions as he saw the maximum value of his private property was greatly reduced.  The successful 77 year-old Ambler wanted to decide himself how to best use his property. Industrial use was his preferred choice for his Euclid Avenue frontage.

Euclid’s position was that its elected government, possessing home rule powers under the 1912 Ohio constitution, could legislate what was in the best interests of the public health, safety and general welfare of its residents.  Ordinance 2812 was based on the Village’s desire to prevent congestion, to not overburden the sewer and water systems, and to preserve the Village’s character. Euclid’s law pointed out that they had set aside sufficient land for industrial purposes but not at this spot.     

 The issue of how much power the government has over private property was the crux of the matter that, once resolved, established a long-enduring legal precedent, served as a model for thousands of other communities and rightfully earned us this historical marker.

Who were the key leaders in the battle?   The Village was led by its fifth Mayor, Charles X. Zimmerman, 57 years old and a veteran of the Spanish-American War and the First World War and a Brigadier General to boot. The village was represented by lawyer James Metzenbaum, who once lived in a beautiful house on the Avenue near Sherwood Boulevard with his late, beloved wife, Bessie Benner Metzenbaum.  The six members of Village Council, including the sponsor of Ordinance 2812, Councilman Cantlon, were unanimous in their support for the innovative ordinance.   Just after Ambler filed suit in May, 1923, Euclid offered to compromise by increasing the size of the area for industrial use that could be built next to the railroad. Euclid never budged on its decision that the Euclid Avenue frontage must be residential.   The village’s concession did not stop the lawsuit.

The private property owner was Judge William Ambler whose family had developed the still beautiful Ambler Heights subdivision, just east of University Circle. Ambler was represented by Newton Baker, someone who would have been one of the first selections to the Cleveland politicians’ Hall of Fame if there was such a thing.   Baker was once the law director for the legendary Cleveland Mayor Tom Johnson, then Mayor himself when City Hall was dedicated and later Woodrow Wilson’s Secretary of War during WW 1.  Baker was a founder of the powerhouse Cleveland law firm, Baker and Hostetler, now located in Key Tower.     Baker privately considered Euclid’s zoning restrictions as “communistic” in that they took the value of private property and gave that value to the public without compensating the private owner. Baker was a mover and a shaker and he raised several thousands of dollars to cover legal fees and expenses in advance from major property owners, including the two railroads in Euclid.  Ambler filed suit initially in the federal district court then found in the new federal building on Public Square.  The local federal judge assigned to decide the case was Judge David Westenhaver, Baker’s former law partner whom Baker reportedly encouraged President Wilson to appoint to the bench.

The initial decision by Judge Westenhaver in early 1924 was a total loss for Euclid.  He decided that the Euclid law violated the due process clause by taking private property for public use without just compensation.  It was discriminatory, confiscatory, exclusionary and unreasonable. Euclid’s law had put private property in a “straitjacket.”  Round one of Euclid v. Ambler was a complete victory for the 55 year-old Baker and his client.  In those days, an appeal could be made directly to the US Supreme Court led by former President Taft which the Village and Metzenbaum promptly filed.  

By all accounts, the 43-year old Metzenbaum was a nervous worry wart as he mounted the appeal, inundating the Court clerk with numerous filings. This would be his only case before the highest court and he was determined to win. It was also said that the village’s attorney was a small man whom the justices had to lean forward to see from the high bench upon which they sat.

There was a first hearing in early 1926 and the results of that hearing had Metzenbaum worried; he urgently and successfully asked the Court for permission to file another brief from his homebound train which was stuck in a blizzard.    An unusual second hearing was granted for the fall of 1926 and it included all nine justices.  In the meantime, a national planning expert, Alfred Bettman from Cincinnati was permitted to file a brief on behalf of Euclid.  In the end, Bettman’s work justifying zoning was considered very helpful to Euclid.

On November 22, 1926, by a 6-3 vote, Euclid won!     The famous decision upheld the validity of municipal zoning and is still good law today.   Justice Sutherland, once known as one of the four most conservative justices—the so-called Four Horsemen of the Apocalypse- who were generally supportive of private property rights and opposed to government regulation, wrote a thorough opinion upholding Metzenbaum and Bettman’s arguments.   Sutherland said that changes in modern society justified a new approach to reviewing the extent of governmental power involving land use issues.   His opinion gave deference to local governments, saying the Euclid’s law was not clearly arbitrary or unreasonable and that it was not unrelated to the public health, safety and general welfare.  Sutherland was not impressed with the fact that Ambler’s property was worth less under Euclid’s zoning, finding that the village’s regulation was not an unconstitutional taking of the parcel’s entire value.   Sutherland noted that most state court decisions had previously upheld the power of zoning under state constitutions.  Westenhaver’s lower court decision was reversed.

A key cameo role was played by US Commerce Secretary Herbert Hoover who was then developing the Standard State Zoning Enabling Act, promoting the federal view that states should empower their subdivisions to enact local zoning in the interests of efficiency.  Mayor Zimmerman admitted that Euclid relied on an early version of Hoover’s work when the village was studying the subject in 1922.

Euclid’s zoning plan was given the Supreme Court’s seal of approval!    The Cleveland City Manager called the decision “revolutionary.”   Major US newspapers commented favorably on the decision.  The Christian Science Monitor said that it was an answer to an urban reformer’s prayer. And, David had beaten Goliath! Ordinance 2812 is still the law in Euclid, although repeatedly amended.  It has been a model for more than 4000 American cities.  The bold initiative taken by Mayor Zimmerman and the Village Council was completely vindicated.   Thanks to zoning, there are no fast food restaurants on Ball Avenue and no smoke stacks north of the Boulevard.  Homes are setback from the street just so far, fences can only be so high, signs so big, and houses must be set apart from one another.

Zoning laws, while not without criticism, led to such newer concepts as environmental protection and historic preservation.   Cities can still lose zoning cases today if a court finds the regulations to be arbitrary, discriminatory, unreasonable or based on aesthetics.  But zoning stills stands as a municipal watchdog.

In Euclid after 1926, industry, for a time, was limited to the area along and between the railroads until Hitler started invading most of Europe. America prepared to respond.   Congress passed a law calling for the increased production of war materials and the federal construction of war plants, including one right here that made airplanes and airplane parts. The Constitution also states that federal laws are the supreme law of the land meaning that the US government is not bound by local zoning.   So, long after Judge Ambler and Newton Baker passed away, the Ambler property here was used for industry after all.  The need for the Arsenal of Democracy trumped Ordinance 2812.

James Metzenbaum had won his one and only case before the US Supreme Court.  His argument and legal skills bested the vaunted Newton Baker. His attention to detail and determination on behalf of the people of Euclid established a lasting precedent. His life after this victory was described as melancholy.  His young wife, Bessie Benner Metzenbaum died in 1920 after 15 years of marital bliss. They had no children. Shortly after her death, Mayor Zimmerman had put him to work on the committee that drafted Ordinance 2812.   Metzenbaum moved to Cleveland’s Statler Hotel after her death, wrote two popular law casebooks on the Law of Zoning, and ran several times for public office.  He bought a farm in Chester Township in the late 1940s.   Metzenbaum remained devoted to her wife’s memory.   He visited her at Lakeview Cemetery two or three times weekly for the forty years! In fact, Metzenbaum died on New Year’s Eve in 1960 while trying to free his car from a snow drift in Lakeview after his last visit to his beloved Bessie.   Metzenbaum’s will left part of the farm in Chester to serve young people and the Metzenbaum Center for the developmentally disabled opened in 1966 and is still hard at work today.  The balance of the farm became the beautiful Bessie Benner Metzenbaum Park. 

Metzenbaum’s legacy lives on in American jurisprudence, in the community of Euclid he served so diligently and on a beautiful rustic site a short distance from here.

Four score and ten years ago, the mere suburb known as the Village of  Euclid, population of less than 4000, boldly passed a visionary law, tenaciously fought to defend that law and won the day before the highest court in the land against formidable opponents.  That victory led to the nationwide adoption of zoning laws, and American cities have been forever transformed as a result.

Thank you for allowing me to join you today.  Please join us after the reception at the Euclid History Museum at 21129 North Street-just east of the Chardon Road fire station because you will see Euclid v. Ambler Realty is only one small part of this community’s 220 years of pride and progress.

Paul Oyaski   June 9, 2016 at 20001 Euclid

Monument to Euclid v. Ambler Realty unveiled

Today, the city of Euclid, Ohio unveiled a monument to the landmark zoning case, Euclid v. Ambler Realty.  Michael Allan Wolf provided the following image of the monument.

 

Contemporary Issues in Climate Change Law & Policy, Part 2: Creating Legal Pathways to a Zero Carbon Future, by John C. Dernbach

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 second post is an excerpt from Prof. John C. Dernbach's chapter, "Creating Legal Pathways to a Zero Carbon Future."  Read Prof. Dernbach's entire chapter here.  Links to previous excerpts are at the bottom of this post.

Buy the book here.

Excerpt:

The Challenge of the Carbon Budget

The challenge posed by climate change is both urgent and enormous. It is also daunting: it requires that the world, as a whole, move as soon as possible from the current situation of increasing greenhouse gas emissions to rapid reductions in greenhouse gas emissions. A recently developed concept—the carbon budget[1]—provides a way of understanding both the magnitude of this challenge and possible pathways for an effective response.

The objective of the U.N. Framework Convention on Climate Change is “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.”[2] In 2010, the Conference of the Parties to the Convention translated the stabilization objective into a maximum permissible surface temperature increase—2 degrees Celsius (or 3.6 degrees Fahrenheit) above preindustrial levels.[3] Parties, it said, “should take urgent action to meet this long-term goal, consistent with science and on the basis of equity.”[4] In addition, it stated the importance of “strengthening the long-term global goal on the basis of the best available scientific knowledge, including in relation to a global average temperature rise of 1.5 °C.”[5] The Paris Agreement, which was adopted unanimously by the Conference of the Parties in December 2015, stated the objective in terms of both temperatures—to hold “the increase in the global average temperature to well below 2 °C above pre-industrial levels,” and to “pursue efforts to limit the temperature increase to 1.5 °C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change.”  

The IPCC has translated the 2°C limit into a carbon “budget”—a numerical limit on all additional emissions, cumulatively, for the rest of the century. It concluded that this budget is between 630 and 1,180 gigatons of carbon dioxide equivalent.[7] That range represents the cumulative total of all new emissions of carbon dioxide equivalent between 2011 and 2100.[8] If cumulative emissions do not exceed the figures in that range, the IPCC states, it is “likely” that global average temperatures will stay below a 2°C increase.[9] To have a “likely” chance of staying within this budget, IPCC says, global greenhouse gas emissions need to be 40% to 70% lower by 2050 and “near zero” gigatons of carbon dioxide equivalent or “below” by 2100.

Several points of caution are needed to understand this carbon budget. First, there is a one in three chance that, on its own terms, the budget will not succeed. The term “likely”—as used by both the Conference of the Parties and the IPCC—means that the chance of a particular outcome is greater than 66%,[11] or two out of three. To put this probability in perspective, it helps to recall that the U.S. Environmental Protection Agency (EPA) has traditionally regulated chemicals under its major statutes when they create a risk of cancer of between one in 10,000 and one in 10 million.[12] Cancer risks from chemicals are different from the risks of climate change, of course, but the contrasting probabilities are striking nonetheless. Even in Russian roulette, a player has only a one in six chance of dying. 

Second, other calculations of a carbon budget provide even less time to reduce emissions that low. The writers of a frequently cited 2009 paper in Nature, for example, focused on the time period between 2000 and 2050, not 2000 and 2100, and calculated carbon budgets to avoid exceeding a 2°C increase based on cumulative emissions in the first half of this century.[13] Given past and projected emissions, they conclude, “we would exhaust the CO₂ emission budget by 2024, 2027 or 2039, depending on the probability accepted for exceeding 2°C (respectively 20%, 25% or 50%).”[14] The International Energy Agency states that, with business-as-usual emissions, the remaining carbon budget (based on a 50% chance of keeping the temperature increase below 2°C) will be exhausted around 2040.[15] Others, including James Hansen, are less certain that the world can increase global temperatures by 2°C without severe adverse consequences. They argue that 1.5°C, or an even lower temperature limit, would be even better.[16] The Paris Agreement appears to be based on a recognition of these concerns, aiming to keep the temperature increase “well below 2 °C” and indicateing the desirability of holding the increase to 1.5°C.  Of course, the carbon budget to stay below a 1.5°C increase is even smaller, and hence it is more likely that the world will exceed it.

      Third, operationalizing this budget requires that it be allocated by nation based on population, historical contribution to global atmospheric greenhouse gas concentrations, development status (developed vs. developing), equity, and other factors. The question of each nation’s “fair share” of the budget is both essential and highly contested.[17] 

At the same time, if business as usual continues, and the growth of greenhouse gas emissions continues to accelerate, the world will simply blow by the budget and considerably exceed global average temperature increases of 2°C. According to the IPCC, emissions of carbon dioxide equivalent are increasing by about 1 gigaton annually, were the highest in human history between 2000 and 2010, and in 2010 alone reached 49 gigatons.[18] Half of cumulative anthropogenic (human-caused) carbon dioxide emissions have occurred in the last 40 years.[19] These increases are occurring in spite of the efforts that have been made thus far to reduce greenhouse gas emissions.[20] The IPCC thus concludes:

Without additional efforts to reduce GHG emissions beyond those in place today, emissions growth is expected to persist driven by growth in global population and economic activities. Baseline scenarios, those without additional mitigation, result in global mean surface temperature increases in 2100 from 3.7 °C to 4.8 °C compared to pre-industrial levels. . . .[21]

A variety of other projections based on business-as-usual emissions growth also put the world on track for a temperature increase of at least 4°C.[22] 

A 2012 report for the World Bank by the Potsdam Institute for Climate Impact Research and Climate Analytics describes the impact of a 4°C temperature increase by 2100 as disastrous.[23] Such a world, the report said, would be “one of unprecedented heat waves, severe drought, and major floods in many regions, with serious impacts on ecosystems and associated services.”[24] The report adds:

[G]iven that uncertainty remains about the full nature and scale of impacts, there is also no certainty that adaptation to a 4°C world is possible. A 4°C world is likely to be one in which communities, cities and countries would experience severe disruptions, damage, and dislocation, with many of these risks spread unequally. It is likely that the poor will suffer most and the global community could become more fractured, and unequal than today.[25]

      In the 2015 Paris Agreement, “Parties aim to reach global peaking of greenhouse gas emissions as soon as possible…and to undertake rapid reductions thereafter…so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century….”[26] This “balance” means that net greenhouse gas emissions should be zero by that time.  Serious efforts to address the carbon budget must begin as soon as possible.   As economist Nicholas Stern summarizes the available scientific literature, the window for keeping temperatures under 2°C “is still open, but is closing rapidly.”[27]

 

[1] Fred Pearce, What Is the Carbon Limit? That Depends Who You Ask, environment360, Nov. 6, 2014, http://e360.yale.edu/feature/what_is_the_carbon_limit_that_depends_who_you_ask/2825/.   

[2] United Nations Framework Convention on Climate Change, art. 2, May 29, 1992, S. Treaty Doc. No. 102-38, 1771 U.N.T.S. 107. U.N. Doc. A/AC.237/18 (Part II)/Add.1; 31 I.L.M. 849.  

[3] Conference of the Parties, United Nations Framework Convention on Climate Change, Decision 1/CP.16 (The Cancun Agreements: Outcome of the Work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention) ¶ 4, in Report of the Conference of the Parties on its Sixteenth Session, Held in Cancun from 29 November to 10 December 2010, Addendum, Part Two: Action taken by the Conference of the Parties at its sixteenth session, FCCC/CP/2010/7/Add.1 (2011), available at http://unfccc.int/resource/docs/2010/cop16/eng/07a01.pdf.  

[4] Id. 

[5] Id. That translates to 2.7 degrees Fahrenheit. 

[6] United Nations Framework Convention on Climate Change, Conference of the Parties, Paris Agreement, art. 2.1(a), in Decision 1/CP.21 (Adoption of the Paris Agreement) (2015), U.N. Doc. FCCC/CP/2015/L.9/Rev.1, available at https://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf. 

[7] 2014 IPCC Mitigation Report, supra note 3, at 431. A gigaton is one billion tons. Carbon dioxide equivalent includes all greenhouses gases measured according to the warming potential of carbon dioxide.

[8] Id.

[9] Id. at 441. Working Group I reached a slightly different estimate about the budget—1,010 additional gigatons of carbon dioxide equivalent. 2013 IPCC Physical Science Report, supra note 1, at 27. Working Group I used a slightly different methodology and did not use ranges. 2014 IPCC Mitigation Report, supra note 3, at 441.

[10] 2013 IPCC Physical Science Report, supra note 1, at 13. 

[11] Id. at 4, note 2. 

[12] John D. Graham, The Legacy of One in a Million, Risk in Perspective 1-2 (1993) (Harvard Center for Risk Analysis), available at http://www.hsph.harvard.edu/wp-content/uploads/sites/1273/2013/06/The-Legacy-of-One-in-a-Million-March-1993.pdf.

[13] Malte Meinshausen et al., Greenhouse-Gas Emission Targets For Limiting Global Warming To 2 °C, 458 Nature 1158 (2009). 

[14] Id. at 1159. 

[15] International Energy Agency, Energy and Climate Change: World Energy Outlook Special Report, Executive Summary 2 (2015), available at http://www.iea.org/publications/freepublications/publication/WEO2015SpecialReportonEnergyandClimateChangeExecutiveSummaryUKversionWEB.PDF.   

[16] James Hansen et al., Assessing “Dangerous Climate Change”: Required Reduction of Carbon Emissions to Protect Young People, Future Generations and Nature, 8 PLOS One e81648 (2013). See also Jeff Tollefson, Global-warming Limit of 2 °C Hangs in the Balance, 520 Nature 14 (Apr. 2, 2015). 

[17] Donald A. Brown, Climate Change Ethics: Navigating the Perfect Moral Storm (2012); Fred Pearce, The Trillion-Ton Cap: Allocating The World's Carbon Emissions, environment360, Oct. 23, 2013, at \http://e360.yale.edu/feature/the_trillion-ton_cap_allocating_the_worlds_carbon_emissions/2703/. 

[18] 2013 IPCC Physical Science Report, supra note 1, at 6.   

[19] Id. at 7. 

[20] Id. at 6. 

[21] Id. at 8.

[22] Sustainable Development Solutions Network & Institute for Sustainable Development and International Relations, Pathways to Deep Decarbonization 4 (2014), available at http://unsdsn.org/wp-content/uploads/2014/09/DDPP_Digit_updated.pdf.   

[23] International Bank for Reconstruction and Development/World Bank, Turn Down the Heat: Why a 4°C Warmer World Must be Avoided (2012), available at http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2015/07/17/090224b0828c33e7/1_0/Rendered/PDF/Turn0down0the00orld0must0be0avoided.pdf.                    

[24] Id. at ix. 

[25] Id. at xviii. 

[26]  Paris Agreement, supra note 9, art. 4.1. 

[27] Nicholas Stern, Why are We Waiting? The Logic, Urgency, and Promise of Tackling Climate Change 32 (2015). 

 

Below is a list to previous excerpts in this series:

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