Why Environmental Lawyers Should Know (and Care) About Land Trusts and Their Private Land Conservation Transactions

Abstract:     
For the past decade, traditional environmental lawyers -- advocates for the public interest, governments, and regulated parties -- have watched, with mixed feelings, the dramatic rise of a distinct form of land conservation. Private, non profit land trusts appear to be everywhere. Traditional environmental lawyers have not always known how to respond to the rapid growth in the number of these private or quasi-private land conservation transactions. The cultural differences between traditional environmental lawyers and the land trust community contribute to the atmosphere of skepticism. Environmental litigators and regulatory lawyers take uncompromising positions (their clients' positions) on specific projects, regulatory actions, and agency decisions. These positions provide the foundation for most of the work they do. Members of the land trust community, while just as committed to environmental protection, generally avoid taking positions on specific projects, actions, or decisions for fear of alienating the private landowners with whom they work, or the government agencies or other private organizations with whom they may wish to collaborate in the future. In this brief article, we suggest that the skepticism with which environmental lawyers tend to view land trusts is unfounded, and that environmental lawyers stand to gain much from engaging more actively with the land trust community. Under the assumption that lack of understanding is often an impediment to interaction, we begin with a brief description of the history of the development of the land trust community and their most common land protection tool- the conservation easement. We then examine the usual criticisms levied against land trusts and their land protection activities by environmental lawyers and academics. Finally, we discuss why environmental lawyers should view land trusts as allies rather than possible opponents, and we argue that environmental lawyers should take an active role in coordinating regulatory measures for land protection with the voluntary, incentive based tools employed by land trusts.

Number of Pages in PDF File: 11

Accepted Paper Series