The Conservative Turn Against Compensatory Mitigation

26 Pages Posted: 30 Jan 2018 Last revised: 15 Jul 2018

Dave Owen

University of California - Hastings College of the Law

Date Written: January 17, 2018

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

Suggested Citation

Owen, Dave, The Conservative Turn Against Compensatory Mitigation (January 17, 2018). Environmental Law, Vol. 48, No. 2, 2018; UC Hastings Research Paper No. 271. Available at SSRN: https://ssrn.com/abstract=3104011 or http://dx.doi.org/10.2139/ssrn.3104011

Dave Owen (Contact Author)

University of California - Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

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