Entrenching Environmentalism

Abstract

This piece for the University of Chicago Law Review Symposium: Reassessing the State and Local Government Toolkit, examines how local governments can use private law mechanisms to entrench policy in ways that circumvent typical legal limitations. The piece examines in detail a specific example of a town donating conservation easements over property it owns to a third-party not-for-profit conservation organization in order ensure that the property would not be developed in the future. This is nearly the functional equivalent of passing an unrepealable zoning ordinance restricting development, something existing anti-entrenchment rules would never permit. The piece examines the costs and benefits of using such a device. It theorizes generally about the nature of entrenchment outside of public law, and identifies anti-entrenchment protections designed to prevent the worst abuses. 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 an anti-development agenda.