Article on Enhancing Conservation Options: An Argument for Statutory Recognition of Options to Purchase Conservation Easements (OPCEs)

Federico Cheever & Jessica Owley recently published an Article entitled, Enhancing Conservation Options: An Argument for Statutory Recognition of Options to Purchase Conservation Easements (OPCEs), 47 Envtl. L. Rep. News & Analysis 10655 (2017). Provided below is an abstract of the Article:

Land conservation transactions have been the most active component of the conservation movement in the United States for the past three decades.Practitioners use traditional real estate tools to preserve habitat, scenery, and historically significant places. Sometimes these tools are used by government entities, but they often involve nonprofit land conservation organizations known as land trusts, which buy and accept donations of land and conservation easements encumbering land. According to the Land Trust Alliance 2010 National Census, more than 1,700 land trusts (local, state, and national) are active in the United States. These organizations are staffed and supported by almost 5 million people. A conservation easement, the primary private land conservation tool, is a non-possessory property right restricting a landowner’s use of a parcel of land to yield a conservation benefit. The National Conservation Easement Database estimates that approximately 40,000,000 acres of land have been protected by conservation easement in the United States.
The prospect of climate change diminishes the value of most real estate tools currently used by proponents of land conservation transactions. A conservation easement binds only the parcel of land described. What scientists know of climate change suggests a natural world in motion; there is no guarantee that the things people value on specific parcels will continue to be there in future decades. This Article outlines one potential response to the challenge of private land conservation under climate change: a reinvigorated use of real estate options to purchase conservation easements (OPCEs).
In the world climate change is creating, with its substantial uncertainties and shifting windows of opportunity, OPCEs can serve strategic purposes. For example, if a potential conservation easement holder knows that a particularly valuable species habitat will migrate over time, but does not know exactly where or when it will migrate, the prospective conservation easement holder could choose to purchase options to preserve habitat along a number of potential migration pathways intending, eventually, only to purchase conservation easements along one pathway as the actual migration pattern emerges. Similarly, potential conservation easement holders–committed to preserving coastal habitats and aware that sea level will rise, but unable to determine how far sea level will rise and how sea level rise and storm surge will affect coastal configuration and usage–might purchase options across a broad zone of potential future shoreline habitat with the intent to  eventually purchase conservation easements to create new shoreline habitat preserves and storm buffers once they have learned enough to know where that shoreline will be.
The ability of OPCEs to protect land in the context of uncertainty would be significantly increased if state legislatures amended current conservation easement enabling statutes8 to: (1) specifically recognize OPCEs, (2) immunize OPCEs from a range of potential common law challenges, and (3) integrate OPCEs into the burgeoning body of conservation easement law.
Part II describes the current relationship between the land trust community and climate change, then introduces OPCEs and discusses how they could fit into a conservation strategy. Part III examines the advantages OPCEs could provide in the shifting world climate change is creating, and addresses some potential objections. Part IV describes problems under the common law and the corresponding virtues of statutory recognition of OPCEs.