In a report not too dissimilar from my entry “perpetuity shorter in Texas“, NPR has a story about a perpetual conservation easement in Wyoming being reversed after only nine years.
Nationwide, conservation easements protect a vast amount of land — more than four times the area of Yellowstone National Park. This growing network of private conservation lands could be threatened if that word — “forever” — turns out not to have teeth.
“It could have some devastating consequences,” says law professor Nancy McLaughlin of the University of Utah. “If the case stands and the easement is terminated, it would encourage speculators across the nation to try their hand at breaking these perpetual easements, because they’re going to want to unlock the millions and millions of dollars that are inherent in the otherwise restricted development and use rights.”
McLaughlin had hoped that Hicks would prevail in court and that the easement would be restored, but last year the Wyoming Supreme Court dismissed the lawsuit. Now, Wyoming’s attorney general plans to take up the case. So the fight continues.
Libertarians often suggest that real estate ownership is absolute, and that any public interest in private property must be compensated (a “taking” in their parlance). They suggest that if one wants to protect land, one should acquire it and place it under a conservation easement.
Apparently, though, these easements are reversible at the least whiff of financial opportunity. While I’m not sure this easement thing is the right way to do conservation, it beats nothing at all, which is what’s left if the right to property is absolute and the right to designating a conservation regime on your property is easily reversible.
It amounts to a built-in mechanism to prevent non-economic components of the environment from ever improving in vigor. Environmental degradation becomes a sure thing, practically built in as a matter of law.