Jessica Owley (University of Miami – School of Law; University of Groningen – Faculty of Law) has posted Resilient Conservation Servitudes: Using Resilient Property Theory to Protect Environmental Amenities Without Leaving Social Values Behind (The Future of Housing, forthcoming) on SSRN. Here is the abstract:
Conservation easements have become the dominant tool for conserving private land in the United States, restricting more than forty million acres. This chapter uses Resilient Property Theory (RPT) to assess that achievement and its costs. It first traces the doctrinal and historical emergence of the American conservation easement: a perpetual, voluntary transfer of development rights to a government agency or land trust, enabled by state law beginning with Massachusetts in 1969 and accelerated by federal income tax benefits in the 1970s. It then situates the tool within a property nomos that privileges individual landowner autonomy over collective obligation—a property maximalism perspective visible in decisions such as Cedar Point Nursery v. Hassid and Sackett v. Environmental Protection Agency—and argues that this framing risks converting an environmental protection device into an instrument of exclusion, concentrating open space and amenity benefits among those already rich in resilience assets while foreclosing competing social needs, most acutely affordable housing. Climate change heightens this problem as perpetual restrictions drafted for static conditions face changing landscapes and circumstances. Applying RPT, the chapter shows that conservation easements are not private bargains but multi-scalar governance arrangements in which federal, state, and local actors are active participants, and that the public-private divide obscures both the range of affected stakeholders and the distributional consequences of current practice. Building on that analysis, the chapter proposes reforms: broadening participation beyond the landowner-holder signing the agreements, incorporating affirmative stewardship obligations alongside negative restrictions, building dynamic adaptation into instrument design, and integrating conservation planning with housing policy. The argument is not that conservation easements should be abandoned, but that partial property interests should be deployed consciously—as tools of socio-ecological resilience and human flourishing.
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