Entrenching Environmentalism: Private Conservation Easements over Public Land

This Article examines how local governments can use private law mechanisms to entrench policy in ways that circumvent typical legal limitations. The Article explores in detail a specific example of a town donating conservation easements over property it owns to a third-party not-for-profit conservation organization to ensure that the property would not be developed in the future. This is nearly the functional equivalent of passing an unrepeatable zoning ordinance to restrict development, something existing antientrenchment rules would never permit. The Article discusses the costs and benefits of using such a device.

It theorizes generally about the nature of entrenchment outside public law, and identifies anti-entrenchment protections designed to prevent the worst effects. It ultimately argues that eminent domain serves an important role in allowing subsequent governments to escape the precommitments of prior governments and proposes a modest modification in compensation rules to limit the extent to which conservation easements can entrench conservation.