Law Commons^™

Conservation Easements At The Climate Change Crossroads, Jessica Owley

Journal Articles

The essence of a conservation easement as a static perpetual restriction is coming to a head with the understanding that the world is a changing place. This demonstration is nowhere more dramatic than in the context of global climate change. In response to this conflict, users of conservation easements face the decision of either (1) changing conservation easement agreements to fit the landscape or (2) changing the landscape to fit the conservation easements. Both of these options present benefits and challenges in implementation. Where conservation easement holders’ ultimate goal is to keep a maximum number of acres under protection from …

The Enforceability Of Exacted Conservation Easements, Jessica Owley

Journal Articles

The use of exacted conservation easements is widespread. Yet, the study of the implications of their use has been minimal. Conservation easements are nonpossessory interests in land restricting a landowner’s ability to use her land in an otherwise permissible way, with the goal of yielding a conservation benefit. Exacted conservation easements arise in permitting contexts where, in exchange for a government benefit, landowners either create conservation easements on their own property or arrange for conservation easements on other land.

To explore the concern associated with the enforceability of exacted conservation easements in a concrete way, this article examines exacted conservation …

Changing Property In A Changing World: A Call For The End Of Perpetual Conservation Easements, Jessica Owley

Journal Articles

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 …

Transition Policy In Environmental Law, Bruce R. Huber

Journal Articles

Embedded within the structure of much American environmental regulation is a distinction between the new and the existing. This distinction reflects a recurrent political challenge for environmental policymakers: whether and how to mitigate regulatory burdens when policy change upsets settled expectations and investment commitments. Environmental law often grandfathers existing products and pollution sources or provides them with other kinds of transition relief. This paper presents a survey of transition policies in environmental regulation, which is followed by a pair of short case studies drawn from the trucking and pesticide industries. These examples demonstrate that the form and extent of transition …

See The Mojave!, John C. Nagle

Journal Articles

This article examines how the law is being asked to adjudicate disputed sights in the context of the Mojave Desert. The Mojave is the best known and most explored desert in the United States. For many people, though, the Mojave is missing from any list of America’s scenic wonders. The evolution in thinking about the Mojave’s aesthetics takes places in two acts. In the first act, covering the period from the nineteenth century to 1994, what began as a curious voice praising the desert’s scenery developed into a powerful movement that prompted Congress to enact the CDPA. The second act …

How Much Should China Pollute?, John C. Nagle

Journal Articles

The debate concerning how much China should pollute is at the heart of international negotiations regarding climate change and environmental protection more generally. China is the world’s leading polluter and leading emitter of greenhouse gases. It insists that it has a right to emit as much as it wants in the future. China interprets the principle of “common but differentiated responsibilities” to mean that China has a responsibility to help avoid the harmful consequences associated with climate change, but that its responsibility is different from that imposed on the United States and the rest of the developed world. In fact, …

Strategic Spillovers, Daniel B. Kelly

Journal Articles

The conventional problem with externalities is well known: Parties often generate harm as an unintended byproduct of using their property. This Article examines situations in which parties may generate harm purposely, in order to extract payments in exchange for desisting. Such “strategic spillovers” have received relatively little attention, but the problem is a perennial one. From the “livery stable scam” in Chicago to “pollution entrepreneurs” in China, parties may engage in externality-generating activities they otherwise would not have undertaken, or increase the level of harm given that they are engaging in such activities, to profit through bargaining or subsidies. This …