Exploiting Conservation Lands: Can Hydrofracking Be Consistent with Conservation Easements?

Abstract

Land conservation increasingly involves a concentrated focus on private lands, and increasingly a focus coming from private organizations. In this effort to protect land, conservation easements have become widespread. Conservation easements are generally conceived of as a way to prevent development, but their flexible nature enables them to promote almost any environmental goal with tailored restrictions as long as they meet general goals of land conservation as spelled out in state law. One of the hallmarks of the conservation easement is its perpetual nature alongside the idea that the property owner retains any rights not explicitly limited in the text of the conservation easement agreement. Taken together these two aspects of the tool can present a conundrum when an uncontemplated use of the land arises. For example, few conservation easements currently in place were drafted with hydrofracking in mind. That is to say, the drafters of the agreements did not contemplate that fracking might occur on or underneath the property and therefore the agreements do not address the issue. Only recently have landowners, conservation easement holders, energy companies, and courts began to investigate the possibilities. This Article examines the potential of fracking on conservation easement land and suggests that future conservation easement drafters add provisions to clarify whether fracking is consistent with conservation purposes. Specifically, we provide a road map for investigating whether hydrofracking can ever be consistent with conservation easements. We conclude with guidelines for conservationists for structuring conservation easements while also giving policymakers and funders a framework for developing a clear policy (whether in favor or fracking or no). In many ways, the conversation on fracking mirrors conversations we would have with other uncontemplated land uses and new technologies. Lessons we learn in the fracking case can then help inform how conservation easements respond to unforeseen conditions.