Document Type

Working Paper

Publication Date

2-13-2006

SSRN Discipline

PSN Subject Matter eJournals; Political Economy - Comparative eJournals; LSN Subject Matter eJournals; Sustainability Research & Policy Network; delete2; Legal Scholarship Network; PRN Subject Matter eJournals; Philosophy Research Network; Political Economy - International eJournals; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Private Law eJournals; SRPN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Humanities Network; Political Science Network; Social Responsibility of Business eJournals; Environmental & Natural Resources Law eJournals; Political Economy - Development eJournals

Abstract

For more than a century conservation easements have been used in the United States to maintain open space or protect the environment Such easements produce a public good They increase the amount of protected landscapes by preserving property encumbered by easements from private development or consumption while simultaneously allowing grantors the flexibility to negotiate the retention of development rights tailored to meet the grantors needs My thesis is that private parties should have a common law property interest in conservation easements sufficient to confer standing to seek injunctive relief to enforce conservation easements and to sue for damages when they are violated More specifically private parties should have standing to defend perpetual conservation easements A common law property interest would be analogous to the thirdparty right of enforcement created by the Uniform Conservation Easement Act UCEA and codified by many states in their state statutes It is not my contention that either grantors holders or society in general should be bound by a perpetual conservation easement restriction forever Some degree of flexibility to reflect changing societal needs is prudent When measuring the appropriate moment in time to modify or terminate a perpetual conservation easement because of changed conditions the interests of the larger society should be represented in the calculus Conferring privateparty standing would allow these interests to be represented My Article provides an efficiency and social justice critique First in Part II I briefly describe the history and rationales underlying the creation and perpetuation of conservation easements I also discuss the close relationship between preservation and a strong private property regime Second in Part III I discuss challenges to perpetual conservation easements the doctrine of changed conditions as well as the importance of privateparty enforcement rights to the defense of conservation easements Next in Part IV I consider efficiency and social justice arguments in favor of a restricted application of the doctrine of changed conditions concluding that private parties should have a recognized common law property interest in the conservation easement Then in Part V I broaden my analysis of conservation easements to demonstrate that decentralizing ownership interests in property by enforcing the decisions of property owners to burden their property with perpetual conservation easements is consistent with a democratic property system Finally in Part VI I discuss objections to my proposal and alternatives to aggressively defending perpetual conservation easements against challenges pursuant to the doctrine of changed conditions I conclude that my proposals articulated in Parts IV and V will result in efficient and appropriate levels of conservation while promoting decentralization of private property ownership

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