The Emergence of Exacted Conservation Easements

This Article outlines reasons why exacted conservation easements emerged and why they are such a popular tool. This Article begins by looking at conservation easements generally and how they arose in the context of environmental law and property law. This emergence is most easily and correctly understood by examining the development of American environmental law and its subsequent rejection by many facets of society. What remains is a push-pull relationship: we still have environmental goals and values, but we dislike government regulation. Conservation easements become a way to protect the landscape without public intervention. With conservation easements, it may appear that we can solve all our problems through private market- based mechanisms rooted in freedom of contract that honor private property rights. Although exacted conservation easements are an extension of the conservation easement phenomenon, they do not embody the freedom of contract associated with other conservation easements and often tie directly to regulation of property. Thus, the exacted conservation easement is a tool that directly conflicts with many of the goals that gave rise to its emergence