Climate Change Challenges for Land Conservation: Rethinking Conservation Easements, Strategies, and Tools

53 Pages Posted: 9 Aug 2018 Last revised: 27 Nov 2018

See all articles by Jessica Owley

Jessica Owley

University at Buffalo Law School; Universidad Pontificia Comillas (ICADE)

Federico Cheever

University of Denver Sturm College of Law (deceased)

Adena R. Rissman

University of Wisconsin-Madison

M. Shaw

Environmental Defense Fund

Barton H. Thompson

Stanford Law School

W. William Weeks

Indiana University Maurer School of Law

Date Written: July 23, 2018

Abstract

Climate change has significant consequences for land conservation. Government agencies and nonprofit land trusts heavily rely on perpetual conservation easements. However, climate change and other dynamic landscape changes raise questions about the effectiveness and adaptability of permanent conservation instruments like conservation easements. Building upon a study of 269 conservation easements and interviews with seventy conservation-easement professionals in six different states, we examine the adaptability of conservation easements to climate change. We outline four potential approaches to enhance conservation outcomes under climate change: (1) shift land-acquisition priorities to account for potential climate-change impacts; (2) consider conservation tools other than perpetual conservation easements; (3) ensure that the terms of conservation easements permit the holder to adapt to climate change successfully; and (4) provide for more active stewardship of conservation lands. There is still a good deal of uncertainty as to the legal fate of a conservation easement that no longer meets its original purposes. Many state laws provide that conservation easements can be modified or terminated in the same manner as traditional easements. Yet, conservation easements are in many ways unlike other easements. The beneficiary is usually the public, not merely a neighboring landowner, and the holder is always a non-profit conservation organization or a government agency. Thus, there is a case to be made for adaptive protection. An overly narrow focus on perpetual property rights could actually thwart efforts to meet adaptation needs over the long term. We call for careful attention to ensuring conservation outcomes in dynamic landscapes over time.

Suggested Citation

Owley, Jessica and Cheever, Federico and Rissman, Adena R. and Shaw, M. and Thompson, Barton H. and Weeks, W. William, Climate Change Challenges for Land Conservation: Rethinking Conservation Easements, Strategies, and Tools (July 23, 2018). Stanford Public Law Working Paper; Indiana Legal Studies Research Paper No. 398; University at Buffalo School of Law Legal Studies Research Paper No. 2018-004. Available at SSRN: https://ssrn.com/abstract=3218525 or http://dx.doi.org/10.2139/ssrn.3218525

Jessica Owley (Contact Author)

University at Buffalo Law School ( email )

School of Law
528 O'Brian Hall
Buffalo, NY 14260-1100
United States
716-645-8182 (Phone)
716-645-2064 (Fax)

Universidad Pontificia Comillas (ICADE) ( email )

Alberto Aguilera 23
Madrid, Madrid 28015
Spain

Federico Cheever

University of Denver Sturm College of Law (deceased) ( email )

Adena R. Rissman

University of Wisconsin-Madison ( email )

1630 Linden Drive
Madison, WI 53706-1481
United States

HOME PAGE: http://fwe.wisc.edu/facstaff/rissman

M. Shaw

Environmental Defense Fund ( email )

1875 Connecticut ave
257 Park Avenue South
Washington, DC 20009
United States
415 293 6159 (Phone)
415 293 6051 (Fax)

HOME PAGE: http://www.edf.org/people/rebecca-shaw

Barton H. Thompson

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
650-723-2518 (Phone)
650-725-8509 (Fax)

W. William Weeks

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

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