The Nature Conservancy and today’s conservation legal issues

Vol. 44 No. 1

Philip Tabas is vice president and general counsel of The Nature Conservancy.

The Nature Conservancy (TNC) is a U.S. nonprofit charity whose mission is to conserve the lands and waters on which all life depends. Founded in 1951, TNC began as The Ecologists Union, a group of scientists who resolved to take “direct action” to save threatened natural areas. Today TNC is an international nongovernmental organization working throughout the fifty United States, Canada, Central and South America, the Caribbean, Asia, Australia, Europe, and Africa. TNC uses a strategic, science-based approach to conservation that involves all sectors of society—communities, businesses, government agencies, multilateral institutions, private individuals, and other nonprofits.

In its early years, TNC focused largely on land acquisition—acquiring the full “bundle of sticks” as its primary strategy. Evolving to focus resources on those property rights that best help achieve conservation, TNC pioneered the use of conservation easements as an effective legal tool to conserve land. In response to increasing environmental threats and complex conservation challenges, and to accommodate human needs on a resource-constrained planet, TNC has expanded its array of methods and legal tools. These include purchasing fishing trawler licenses and reselling them under contract restrictions that promote sustainability of international fisheries, influencing the siting of wind farms and other energy facilities to minimize impact on wildlife, and negotiating and implementing debt-for-nature swaps that allow developing countries to fund protection of their natural resources. Additional examples can be found on TNC’s website.

TNC’s conservation approach

There is no shortage of conservation needs. TNC concentrates on the following four global challenges:

  • conserving critical lands,
  • restoring oceans,
  • securing fresh water, and
  • reducing impacts of climate change

To address these challenges, TNC pursues conservation solutions at the intersection of the needs of people and nature. The work that TNC undertakes involves three strategies: (1) protecting and restoring natural systems, (2) using nature sustainably, and (3) broadening the constituency for conservation. TNC’s core value of tangible, lasting results requires legal work that secures conservation outcomes and stands the test of time.

TNC’s in-house legal department

The forty-seven full-time and part-time lawyers in TNC’s legal department are distributed in twenty offices in the United States as well as in Beijing, Jakarta, Mexico City, Colombia, and Rio de Janeiro.

As any nonprofit in-house legal department, TNC’s legal staff serves the critical function of maintaining the corporation’s charitable and corporate good standing, mitigating risk, ensuring regulatory compliance, and protecting assets. While defending our existing conservation interests (e.g., protecting land from trespass and enforcing conservation easements), TNC lawyers are also called upon to help implement innovative conservation strategies. Many of these strategies require us to push the existing legal envelope by promoting the development of laws and recognition of rights such as:

Ecosystem Services

One important area in which we are expanding traditional legal doctrines is in demonstrating the economic value of nature’s assets, or what we call ecosystem services. These values need legal recognition as full-fledged property rights to effectuate their protection and enhancement.

Rule of Law

To a great degree, success in achieving environmental goals internationally will require environmentalists to join forces with others working to build stable legal, social, and political systems in many countries where environmental resources are threatened.

Land Use and Conservation Easements

Although conservation easements have been the conservation tool of choice in the United States for the last thirty years, climate change and changing land use demands (e.g., energy development, need for tax revenue) limit their effectiveness. Nonetheless, the legal community must ensure that the perpetual conservation interests created by these instruments are effectuated to the maximum extent possible in light of public and private needs and donor intent.

Public vs. Private Institutions

In this era of increasing distrust of government and its ability to solve big social problems, TNC lawyers are relying increasingly on seeking corporate engagements for environmental challenges. One opportunity may be “flexible purpose corporate” entities or “LC3s” that attempt to balance shareholder value with public goals. Legal amendments to corporate codes and industry engagements such as these must ensure that private gains are balanced with public goals. See "California’s New Entities: Benefit Corporations and Flexible Purpose Corporations” (Feb. 23, 2012).

Greening the Tax Code

The tax code is an often overlooked tool to help remedy the United States’ energy and environmental problems. Lawyers can ensure that incentives in the tax code are advancing environmental public interests as well as other interests.

Working with the ABA

The TNC Legal Department has recently begun a cooperative working partnership with ABA’s Section of Environment, Energy, and Resources with a goal of having TNC lawyers engage more with other lawyers with relevant expertise working in the public and private sectors. We hope that TNC lawyers can play a role in national and international councils, conferences, and seminars and other venues and opportunities, and we hope, thereby, to engage more outside lawyers in TNC conservation work. TNC sees the engagement with the Section as an important step to achieve this goal.

Advertisement

  • About Trends

  • More Information

  • Contact Us

The Law of Adaptation to Climate Change: United States and International Aspects