Rights of Nature Easements

The founders of the Center for Democratic and Environmental Rights (CDER) have pioneered the first Rights of Nature Easements. 

Much like Rights of Nature Laws – which elevate the status of nature and strengthen the protection of nature beyond that provided by conventional environmental laws – Rights of Nature Easements elevate the status of nature and strengthen the protection of nature beyond that provided by conventional conservation easements. 

Rights of Nature Laws

Under the U.S. legal system and in countries around the world, human land ownership conveys rights to an owner to largely use their land as they wish.  Under these legal systems, nature does not possess legal rights, including even the basic right to exist. 

Considered to be without legal rights, nature is treated by traditional environmental laws as existing solely for human use – meaning humans have the right to use nature, but nature doesn’t have rights of its own (including the right not to be used). 

The consequences of treating nature in this way has led to long-term environmental degradation, including the collapse of ecosystems, accelerating species extinction, and climate change.

Beginning in 2006, the first Rights of Nature Laws – laws that recognize the legally enforceable rights of nature to exist, thrive, regenerate, evolve, and be restored – were enacted.  Today, more than three dozen communities across the U.S., Canada, and Brazil have Rights of Nature Laws in place.  As well, Ecuador, Bolivia, Panama, Uganda, Spain, and Mexico have Rights of Nature Laws in place at state and national levels. 

Rights of Nature Laws represent a significant shift in how legal systems treat nature, moving away from focusing on the use and exploitation of nature, to focusing instead on protecting the health and well-being of nature.  This comes with the growing recognition that humans are dependent on nature for our own health and well-being, and that harm done to nature is harm done to ourselves.

Rights of Nature Easements

Building on the Rights of Nature Laws, Rights of Nature Easements also change how nature is treated under the law to elevate the status and protection of nature.  They mirror Rights of Nature Laws by recognizing the legal rights of nature found within such laws, including the rights of nature to exist, flourish, regenerate, and be restored. 

While Rights of Nature Laws are adopted by legislative bodies, Rights of Nature Easements are deed restrictions that can be placed on land by individual landowners.

Traditional conservation easements limit certain development or activity – such as building or logging – in order to protect the land from those uses.  Under these easements, humans retain certain rights to use the land, but nature itself does not have legal rights.

Rights of Nature Easements build on traditional conservation easements in the following ways:

·        Elevating the status of nature and strengthening the protection of nature, by recognizing the legal rights of nature within the land parcel. 

·        Development and activities that are permitted on the land may not interfere with the legal rights recognized for nature through the easement. 

·        The landowner, as well as the holder of the Rights of Nature Easement – a land trust or a government entity – may enforce the legal rights recognized by the easement against anyone interfering with those rights.

How Easements Function

Ownership of property provides landowners with the ability to use their property largely as they wish. 

To protect their land in perpetuity, a landowner may establish a traditional conservation easement which limits how they and any future landowners may use the land, or they may choose to establish a Rights of Nature Easement, which further strengthens the protection of nature by recognizing the legal rights of nature on the land and prohibiting activities that would interfere with those rights. 

Here is the basic way traditional conservation easements and Rights of Nature Easements function:

·        A traditional conservation easement limits the kinds of development or activity that are allowed on a parcel of land.  A Rights of Nature Easement goes further by recognizing the rights of nature on the land, and prohibiting development and activity that would interfere with those legal rights.

·        As an easement – whether a traditional conversation easement or a Rights of Nature Easement – limits the kinds of development or activity that may happen on their land, the landowner is considered to have given up certain “use” rights to the land. 

·        Under an easement, therefore, a landowner is voluntarily restricting their right to use their land in order to protect the land. 

·        A landowner may receive a tax benefit for giving up certain rights in how they may use their land.

·        An easement is generally held by a land trust or a government entity.  They are considered the “holder” of the easement.

·        The holder of the easement is responsible for monitoring and enforcing the easement.  If the holder determines that the easement requirements are not being followed, they may enforce the easement against the landowner or whomever is violating the easement in order to rectify the situation. 

·        An easement is attached to the land itself, meaning that even when the land is sold, the easement protections remain on the land. 

Establishing a Rights of Nature Easement is an option for those who wish to secure a higher level of protection for their land than provided by a traditional conservation easement, by recognizing the rights of nature on their land.  It is also an option for landowners who wish to protect the rights of nature, but whose land is in a jurisdiction where the rights of nature is not yet in law. 

CDER works directly with landowners to develop Rights of Nature Easements.  Rights of Nature Easements are now in place in multiple states in the U.S. 

For assistance in creating a Rights of Nature Easement, or for more information, contact CDER at info@centerforenvironmentalrights.org.