Sunday, November 7, 2010
McKay Cunningham (Phoenix) has posted Oil and Water: Easements and the Environment. The abstract:
The age of American environmentalism has arrived. Surveys show widespread public support for preservation policies, open spaces, and natural parks, while reflecting popular disdain for new development of wild lands. Federal and state governments have reacted to public sentiment by adding acreage to national preserves, increasing the budget for agencies tasked with preservation, and by enacting and enforcing pollution laws and regulations.
Despite popular support and government-initiated efforts, forty million acres of land – larger than the state of Florida – were newly developed between 1992 and 2007. This paper addresses the historic and deeply rooted pro-development policy informing American property law. While critical in the country’s infancy, encouraging land use and development through legal constructs is less important and arguably detrimental now. Long-standing legal constructs encourage land use and as a result discourage conservation. Our need to develop wide swaths of wild land has changed; our common law has not.
One area of property law, easements, fully embraces pro-development policies. The legal principles defining express easements, implied easements by necessity, easements by implied grant, and prescriptive easements champion the development of land while disfavoring parties that allow land to remain “idle.” The pro-development policy undergirding common law property tenets lacks a conservation counterbalance. This paper details several approaches that might curb pro-development bias in easement law.
Thursday, October 28, 2010
Jessica Owley (Buffalo) has posted Changing Property in a Changing World: A Call for the End of Perpetual Conservation Easements, forthcoming in the Stanford Environmental Law Journal. The abstract:
Increasing environmental problems, including those associated with climate change, highlight the need for land conservation. Dissatisfaction with public methods of environmental protection has spurred conservationists to pursue private options. One of the most common private land conservation tools is the conservation easement. At first blush, this relatively new servitude appears to provide a creative method for achieving widespread conservation. Instead, however, conservation easements often fail to accommodate the reality of our current environmental problems. These perpetual (often private) agreements lack flexibility, making them inappropriate tools for environmental protection in the context of climate change and our evolving understanding of conservation biology.
This article addresses concerns with the widespread use of conservation easements, advocating for improved conservation easements and better decision making as to when to use conservation easements. A first step in rethinking our approach to the use of conservation easements is to shift from perpetual conservation easements to renewable term conservation easements. Although perpetuity is one of the defining aspects of most conservation easements, it is neither realistic nor desired. In their current static form, conservation easements are not receptive to change in ecology or society. Where conservation easements are of a limited duration, their economic, societal, and conservation value can be more readily assessed and considered when making land-use decisions. Additionally, many conservation easements are already beset with durability concerns. Instead of forcing a cumbersome and unrealistic perpetuity requirement on conservation easements, we should use agreements with a revisitation date. By shifting the initial assumption that these agreements will not be perpetual, we can create responsive agreements and make better decisions regarding when conservation easements are appropriate.
Tuesday, October 19, 2010
Jessica Owley Lippman (Buffalo) and David C. Levy (Morrison & Foerster) have posted Preservation as Mitigation Under CEQA: Ho Hum or Uh-Oh?, published in Environmental Law News, Vol. 14, No. 1, p. 18, 2005. The abstract:
Many local, state, and federal environmental laws contain provisions requiring mitigation of environmental harms caused by development projects. One such law is the California Environmental Quality Act (CEQA). CEQA requires environmental review of projects that have a significant impact on the environment and require discretionary approvals from public agencies. CEQA prohibits agencies from approving projects as proposed if there are feasible alternatives or mitigation measures available that would substantially lessen the environmental impacts of the projects.
This article reviews California cases regarding use of preservation of agricultural land as mitigation and concludes that the California courts have not yet developed a coherent position. In a few published cases, the California appellate courts appear to accept the notion that preservation can meet mitigation requirements without discussion. In some unpublished decisions where courts addressed the issue head on, they reached the opposite decisions.
There are only two acceptable techniques for mitigating environmental impacts that involve the loss, destruction, or significant alteration of unique resources such as land or habitat: creation and enhancement. However, most laws (including CEQA) define mitigation more broadly to include notions of avoidance, minimization, and preservation. Such techniques should not qualify as mitigation because these strategies should be elements of project design. When beginning a project that may have significant environmental impacts, one should seek to avoid and minimize those effects from the onset. After those steps, one would mitigate the remaining impacts through creation or enhancement. Preservation as mitigation is inappropriate because it admits that destruction of the amenity will occur. It results in an overall net loss of the amenity. It may prevent future impacts, but it does not address present problems.
Saturday, October 9, 2010
Gerald Korngold (New York Law School) has posted Globalizing Conservation Easements: Private Law Approaches for International Environmental Protection, forthcoming in the Wisconsin International Law Journal. The abstract:
For the past thirty years nonprofit organizations have revolutionized open space and habitat conservation in the United States through the use of conservation easements. Pursuant to legislation, nonprofits may now acquire and hold perpetual restrictions that prevent alteration of the subject land’s natural and ecological features. These rights can be held “in gross,” with the result that the nonprofit need not own land near the restricted property and can be based in a distant location.
Based on this success, proponents in more recent years have advocated the export of “conservation easements” from the United States to other countries. A vehicle like a conservation easement and having some or perhaps all of its attributes could be employed in other countries to achieve various local and national conservation goals. My thesis, however, is that while conservation easements could be a useful tool for preservation of land outside of the U.S., they may not be the most effective or suitable framework to advance conservation in all countries. Rather than pushing for adoption of an American style “conservation easement” elsewhere, other countries and American (and global) advocates of conservation devices should engage in a process to determine a given country’s appropriate conservation toolbox. That process should be free of American legal and conservation jargon and without a predisposition for U.S. legal structures, values, and policy choices. Each country must determine on its own whether private conservation restrictions meet its economic, social, and political realities and aspirations (many of which are quite different than the American experience reflected in American conservation easements) and what attributes the device should have on key issues such as duration, in gross enforcement, role of government, etc. These national and local goals can then be given life by finding an appropriate legal structure, ideally consistent with the country’s own jurisprudence and system.
This article will provide a framework of the major policy and legal issues that could, and in my view should, inform a country’s decision to adopt private conservation restrictions. These include considerations of cost, efficiency, preference for private vs. governmental actors, the benefits and costs of perpetual limits on land, public regulation of land as an alternative, the specter of neocolonialism in environmental controls, the nature and capacity of the country’s nonprofit sector, and the local legal system. Finally, the learning about conservation restrictions should be a two-way street, not just the export of American methods: the views of some other countries about governmental involvement in private conservation may teach valuable lessons to American jurisdictions about the need for an increased role of government and the public in certain aspects of the selection, modification, and termination of a some conservation easements.
Tuesday, September 28, 2010
Last Thursday I attended a workshop on "Farm and Estate Transition and Conservation Easements,"sponsored by the Madison-Morgan Conservancy at the Burge Plantation outside Madison, Georgia. The audience was a mix of landowners and lawyers interested in helping farm owners conserve their land and pass their farms onto future generations. This is a very interesting twist on estate planning, and I learned the value of having a qualified lawyer as an adviser on farmland transition. For example, according to Allen H. Olsen, a agriculture law specialist, traditional estate planning can sometimes create governance structures that make the farmer ineligible for farm subsidy programs, thus undermining the farm's ability to survive.
The Rolling Hills Resource Conservation and Development Council has published "Planning the Future of Your Farm: A Workbook Supporting Farm Transfer Decisions." I've only had a chance to scan through the Table of Contents, but the book seems to be chock full of tools for planning family meetings, evaluating farm resources, and drafting farm transfer tools. It looks like a great resource for anyone working with farmers interested in effectively planning for the future.
Jamie Baker Roskie
Monday, July 5, 2010
Tuesday, June 1, 2010
Hannah J. Wiseman (Texas) has posted Public Communities, Private Rules, Georgetown Law Journal, Vol. 98, No. 3 (2010). The abstract:
Thursday, April 1, 2010
Josh Eagle (South Carolina) has posted Notional Generosity, forthcoming in the Harvard Environmental Law Review (2011). The abstract:
This article explores a phenomenon that might be called “gift-form generosity”: people earning similar amounts of income are more willing to part with a dollar’s worth of one kind of property than another. Among all income groups, the form of property with which charitable donors are most willing to part is the “conservation easement.” Data show, for example, that the average charitable easement donation is more than 100 times greater in value than the total, annual charitable contribution made by the average American taxpayer. Why are donors so willing to part with conservation easements? The answer may lie in donors’ ability to engage in what I call “donative arbitrage,” that is, the opportunity to profit, in tax-benefit terms, from the difference between the donor’s subjective valuation of the property and the value a hypothetical “willing buyer” would pay for it. To the extent that this hypothesis is correct, donors may in many cases be willing to sell their easements for less than the amount they currently receive as a tax benefit. Overpaying for conservation easements reduces the amount of public money that would otherwise be available for much needed conservation on private land. Allowing deductions for easement donations also creates individual incentives that are opposite of those that would produce optimal results. Specifically, landowners who most prefer to keep their land in its current condition (and who would thus give up very little in agreeing to land-use restrictions) will be the most likely to donate conservation easements. On the other hand, because similar restrictions would be expensive to them, landowners who are most interested in developing their property will be the least likely to donate. Thus, easement subsidies are spent protecting the land that is least in need of the protection afforded by easements. The article concludes by suggesting several ways that Congress might change the law so as to improve the efficiency of conservation easement subsidies.