30 Pages Posted: 22 Jan 2011 Last revised: 1 Jul 2013
Date Written: January 19, 2011
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 development, flexible conservation easements may present a viable and attractive method of protection. Where a specific conservation value or habitat is the concern, active management of the land may be more appropriate. As a further complication, both of these options are at odds with the essential nature of conservation easements. These conflicts lead to a third option: making different decisions about where and how to use conservation easements. This would likely lead to the conclusion that conservation easements are only desirable in a narrower category of purposes. This is, of course, dismaying to champions of conservation easements. Unfortunately, ensuring the long-term viability of conservation easements may entail omitting the very features that give conservation easements their strength.
Keywords: conservation easements, climate change, active management, perpetuity
JEL Classification: K11, K12, K32, L31, L33, Q15, Q2, Q3, R52
Suggested Citation: Suggested Citation
Owley, Jessica, Conservation Easements at the Climate Change Crossroads (January 19, 2011). Law & Contemporary Problems, Vol. 74, p.199, 2011; Buffalo Legal Studies Research Paper No. 2011-012. Available at SSRN: https://ssrn.com/abstract=1743883