The Conservative Turn Against Compensatory Mitigation

Abstract

This essay considers the recent conservative turn against compensatory mitigation policies. Those policies allow environmentally destructive activities to proceed, but on the condition that regulated actors compensate by protecting or improving environmental conditions somewhere else. Over the last four decades, those policies have become increasingly prevalent within environmental law, and they have enjoyed support from across much of the ideological spectrum, with most of the critiques coming from environmentalists. Recently, however, compensatory mitigation policies have become targets of conservative ire. This essay asks why that has happened.

I argue that there are several explanations. First, the tendency to equate compensatory mitigation with a capitalist or neoliberal agenda mistakes the true roots of compensatory mitigation policies, which were often helpful to but were not creations of the business establishment. Second, as compensatory mitigation policy has grown up (a process that still is far from complete), it has become more demanding for regulated entities. Third, the deals promised by compensatory mitigation will seem less enticing to regulated entities as they begin to sense weakness in the underlying mandates of environmental law. These factors do not fully explain the recent conservative turn, but they do offer partial explanations for its emergence, as well as cautionary notes for those who believe — as I do — that compensatory mitigation should be an important part of the future of environmental law.

Keywords: compensatory mitigation, mitigation banking, biodiversity offset, exaction