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From Citizen Suits to Conservation Easements: The Increasing Private Role in Public Permit Enforcement

June 2013

Citation: 43 ELR 10486

Issue: 6

Author: Jessica Owley

The past 40 years have seen an increase in the involvement of private actors in environmental law. One of the best-known (and arguably best-loved) methods for public involvement is the citizen suit. This popular method of public enforcement of environmental permits (among other things) has been joined by the use of conservation easements. Conservation easements are increasingly used to meet permit mitigation requirements. When private nonprofits hold these exacted conservation easements, they assume the role of permit enforcers. It is their job to ensure that conservation easement terms are complied with, giving them oversight and control over one of the pivotal components of environmental permitting regimes. Land-trust-held exacted conservation easements privatize enforcement of environmental law, much as citizen suits do. However, exacted  conservation easements differ from citizen suits in that they foreclose public enforcement instead of complement it. Use of exacted conservation easements would improve
if we apply lessons about public involvement and information from our citizen suit tradition.

Jessica Owley is an Associate Professor, SUNY Buffalo Law School.

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