The Future of Conservation Easements
| Author | Laurie A. Ristino |
| Pages | 459-523 |
Page 459
Chapter VII: The Future of
Conservation Easements
Laurie A. Ristino
A. Introduction1
e world faces enormous challenges in protecting its natural resources a nd biodiversity from irreversible,
devastating harm. Climate change has already taken its toll as exhibited by warming temperatures, extreme
weather, habitat loss, and increased pathogens. Agricultural yields are predicted to decrease sharply in many
developing areas of the world where populations are projected to grow the most, putting further pressure
on natural resources.2 e global population is projected to grow to 9.6 billion by 2050.3 ese challenges
require humanity to adopt and innovate a web of conservation strategies tailored to protect fragile ecosys-
tems and key natural resources. Every tool in our in environmental protection toolbox is needed, targeting
the tool to t t he conservation need and social realities as discussed ea rlier in this book. Conservation of
public lands and the involuntary protection of private lands are insucient to protect the environment.
Consequently, mechanisms for voluntary private lands protection and stewardship are critical.4 e fu ll
embrace of conservation easements, despite their challenges and limitations, as a key conser vation tool for
the voluntary protection of private lands in the United States raises the question reg arding how this tool
may be adapted and used in the international context.
In fact, the use of conservation easements or similar instruments in other countries is a leading edge
of t he evolution of private lands protection as a key element of global conservation. is chapter then
focuses on international eorts to protect private lands using conservation easements, including legal and
social hurdles, through articles exploring land conservation eorts in Austra lia, Canada, Chile, the United
Kingdom, and the European Union. is exploration begi ns with a brief description written by Laura A .
Johnson, at the time a Harvard Forest Charles Bullard Fellow, regarding a nascent international initiative
to provide coordination and leadership of international eorts modeled after the American experience in
growing and maturing the land trust movement.
The Global Promise of Private Land Conservation5
In more t han 70 countries across the globe, nongovernmental organizations (“NGOs”) involved in the
protection of private fore stland, farmland and natura l habitats are now active. ey use a broad a rray
of mechan isms to sec ure control over the future uses a nd current ma nagement of privately owned land.
Sometimes referred to a s land tr usts or la nd conservancies, these NGOs are workin g at signicant sca le
Editors’ Note: We omitted most citations in the excerpted works for bre vity and reada bility. Asterisks were used to indicate delete d
portions of the tex t. And a “leaf ” icon was placed betwee n each excerpt.
1. Brian Tweedie drafted an earlier version of this introduction and assisted in the editing of some of this chapter’s articles.
2. World Resources Institute, Blog, available at http://www.wri.org/blog/2013/12/global-food-challenge-explained-18-graphics.
3. United Nations estimate, available at http://www.un.org/en/development/desa/news/population/un-report-world-population-projected-to-
reach-9-6-billion-by-2050.html.
4. Sristi Kamal, Malgorzata Grodzinska-Jurczak, and Gregory Brown, Conservation on Private Land: A Review of Global Strategies With a Proposed
Classication System, J. Envtl L. & Pl (2014).
5. Written by Laura Johnson (October 2014) for inclusion in this book. Edited by Laurie Ristino.
Page 460 A Changing Landscape: The Conservation Easement Reader
to addre ss land conversion issues. ey are slowing the f ragmentat ion and eliminat ion of fore sts, initi-
ating vast restorat ion projects, and securing the permanent c onservation of lands held by individua ls,
famil ies, corporations and other private and qua si-public entities. ey are ta king action in the real
estate marketplac e to protect habitat of bot h terrestrial and marine animal life, providing access to
recreationa l lands, preservi ng irreplace able historic la ndscapes, protecting rich and productive farmla nd
and keeping working forests as sources of revenue for generations to come. In addition, these NGOs are
working to de velop practical tools that respond to the needs a nd conservation goals of private la ndown-
ers, in contr ast to the range of strategies pursued by other NGOs and governmental entities aimed at
creating public protected areas .
Land conservation capacity in the U.S. has been developed through leadership from the major organi-
zations (such as e Nature Conservancy and t he Trust for Public Land) and increasingly robust support
from the Land Trust Alliance, the 30 year old voluntary association of member land trusts which provides
a wide-range of capacity building tools to the land trust community. However, there is no equivalent
leadership internationally nor is there a ny formal system in place for sharing best practices, model docu-
ments, case studies or professional development/career training opportunities from country to country or
continent to continent.
In 2014, several leaders of the land conservation movement in the U.S., joined by conservationists from
Europe, Latin America, A frica, Australia and Canada began to formalize the idea of an international land
conservation network that would establish a structured cross-bounda ry collective learning process. At a
meeting in September 2014, a representative group of land conser vationists from around the world came
together to begin developing a governance structure for such an organization. e new international land
conservation all iance hopes to connect organizations and people in order to exchange information, build
capacity, and raise awareness and resources to accelerate the role that private lands conservation must play
in protecting the world’s natural, scenic and cultura l resources.
B. Gerald Korngold, Globalizing Conservation Easements: Private Law Approaches for
International Environmental Protection, 28 WIS. INT’L L.J. 585 (2011)
For the past 30 years, nonprot organizations have revolutionized open space a nd habitat conservation in
the United States through the use of conservation easements. Pursuant to legislation, nonprots may now
acquire and hold perpetual restrictions that prevent alteration of the subject land’s natural and ecological
features. ese rights can be held “in gross,” with the result that the nonprot 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 ease-
ments” from the United States to other countries. A vehicle like a conservation easement, having some or
even 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 United States, they may not be the most eective or suitable framework
to advance conservation in all countries. Rather than pushing for adoption of an A merican-style “conser-
vation easement” elsewhere, other countries and American (and global) advocates of conser vation devices
should engage in a process to determine a given country’s appropriate conservation toolbox. at process
should be free of American legal and conservation jargon and without a predisposition for U.S. legal struc-
tures, va lues, 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 dier-
ent than the American experience reected in U.S. conservation easements) and which attributes the device
should have on key issues such as duration, in gross enforcement, role of government, etc. ese national
and local goals can then be given life by nding an appropriate legal structure, ideally consistent with the
country’s own jurisprudence and system.
The Future of Conservation Easements Page 461
is ar ticle will provide a framework of the major policy a nd legal issues that cou ld, and in my view
should, inform a countr y’s decision to adopt private conservation restrictions. ese include c onsid-
erations of cost, eciency, preference for priv ate versus governmental actors, the benets and cost s of
perpetu al limits on land, public regu lation of land as an alternative, the specter of neocolonia lism in
environmenta l c ontrols, the nature and capacity of the country’s nonprot sector, and the loca l legal
system. Finally, the learning about conser vation restrictions should be a two-way street, not just the
export of A merican methods: the views of some other cou ntries about governmental i nvolvement in
private conser vation may teach valuable lessons to U.S. jurisdictions about the need for an increa sed role
of government and the public in certai n aspect s of the selec tion, modic ation, and termination of some
conservation easements.
***
is article will provide an analytical framework for the major policy and legal issues that could, and in
my view should, inform a nation’s decision to adopt private c onservation restrictions. ese include cost,
eciency, preference for private versus governmental actors, t he benets and costs of perpetual limits on
land, and public land use reg ulation as a n alternative. Moreover, specic issues related to other countries
are examined: the tradeo between development and conservation, the specter of neocolonialism in export-
ing conservation methods and values, the mission and capacity of the NPO sector, and the legal sy stem.
I argue that adopting an A merican o-the-shelf “conservation easement” model t hat is inconsistent with
a country’s needs and culture will make it less likely that the conservation goals will actua lly be achieved
and become more real t han words on paper. Finally, I demonstrate that 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, modication, and termination of some conservation easements.
I ma ke t wo disclaimers up front. First, this article and my other writing s support the use of private
conservation easements in the United States; my critique and suggested changes in U.S. law a re intended
to make these interests more eective for current and future generations.8 Second, I do not pretend to have
expertise in the law of the over two-hundred countries that might consider adoption of private conservation
restrictions. Rat her, this article seeks to ra ise the questions that countries might, and in my view should,
consider when deciding whether to take such a path. In exploring the issues, I refer to the law of some
specic countries for illustrative purposes.
***
II. A POLICY CALCULUS OF CONSERVATION EASEMENTS AND ALTERNATIVES
Private, perpetual conservation easements in gross bring substantial benets but also raise policy questions.
ese issues have marked the American experience with these interests, and other countries contemplating
the adoption of a U.S. model of ea sements must closely consider them. Moreover, this policy calcu lus is
also relevant to alternative private conservation vehicles that other nations may adopt, such as payments for
environmental services, rea l rights under civil law, and others.
is Par t will develop and apply a policy framework for a nalyzing private conservation easements in
gross and alternatives to achieve preservation of open space and natural habitat. It will consider conser-
vation easements a nd the following other vehicles: (1) fee ownership to achieve conservation purposes,
(2)governmental, rather than nonprot, ownership, (3) limited, non-perpetual land rights, and (4) govern-
mental regulat ion, instead of a property-based regime, to accomplish conservation goals. I conclude that
private conservation easements in gross have great advantages in the United States and deserve continued
validation and enforcement, albeit with a few cha nges to achieve greater public input a nd protection of
To continue reading
Request your trial