The age of American environmentalism has arrived. Surveys show widespread public support for preservation policies, open spaces, and natural parks, while reflecting popular disdain for new development of wild lands. Federal and state governments have reacted to public sentiment by adding acreage to national preserves, increasing the budget for agencies tasked with preservation, and by enacting and enforcing pollution laws and regulations.
Despite popular support and government-initiated efforts, forty million acres of land – larger than the state of Florida – were newly developed between 1992 and 2007. This paper addresses the historic and deeply rooted pro-development policy informing American property law. While critical in the country’s infancy, encouraging land use and development through legal constructs is less important and arguably detrimental now. Long-standing legal constructs encourage land use and as a result discourage conservation. Our need to develop wide swaths of wild land has changed; our common law has not.
One area of property law, easements, fully embraces pro-development policies. The legal principles defining express easements, implied easements by necessity, easements by implied grant, and prescriptive easements champion the development of land while disfavoring parties that allow land to remain “idle.” The pro-development policy undergirding common law property tenets lacks a conservation counterbalance. This paper details several approaches that might curb pro-development bias in easement law.
McKay Cunningham, Oil and Water: Easements and the Environment, 85 St. John's L. Rev. 869, 924 (2011)