Thursday, January 10, 2008

A Life Of Ease(ments)


For the second year in a row a group of KU Law School students have escaped chilly Lawrence, Kansas, for the ideal weather of the Virgin Islands, to take Biodiversity Law. The first two days of class have been extremely illuminating. Starting tomorrow one student per day will become a guest Biolaw blogger to share the new insights into biodiversity law gleaned from their activities in the VI.

On our first day in the VI, we had the rare privilege of visiting Botany Bay, one of the most stunningly beautiful and biologically important spots in the Caribbean. There we learned something unexpected, and, I think, quite significant for the future of biodiversity law.

Botany Bay, a huge tract of almost unspoiled tropical forest fringed by strikingly healthy coral reefs, was sold almost a decade ago to developers. Initial plans for a huge resort, concrete pier, and high-density subdivisions were abandoned several years ago in favour of a much more upscale plan for limited numbers of luxurious villas and condos named The Preserve at Botany Bay. My students learned yesterday that the otherwise ironic-appearing name may actually be fairly apt. The developers have applied several times to have their planning permits modified. Here is the surpise. Rather than loosen the restrictions, the developers have been pressured by initial property owners to add stricter conservation easements on their land, and the land of future buyers. Why? The extremely wealthy clientele courted by the developers want to ensure that their land, and the land of their neighbours, is almost entirely covered with native flora and fauna. It seems that the rich at The Preserve are willing to pay more to forfeit rights to develop their natural surrounding.

Traditionally, habitat conservation has relied heavily on public environmental laws. In fact, many, if not most, in the legal academy, are skeptical of the value of private law as a significant conservation tool. However, as with the rich at Botany Bay, the new gilded age may be giving rise to a new class of conservationists who wish to create large private nature reserves because they value biodiversity more than development. The Virgin Islands have already given rise to several notable examples of this phenomenon, the most impressive of which is Guana Island. This gorgeous British Virgin Island, whose motto, "Imagine the Caribbean before it went public", caters not just to extremely wealthy and discriminating guests (e.g., "We're the only wildlife sanctuary in the world with a cocktail hour"), but also to such permanent residents as the endangered Anageda Rock Iguana. Guana Island finances a comprehensive restoration plan for these huge iguanas, and even shuts its resort for a month each year for "Science Month", when top scientists interested in studying biology and conservation on Guana Island stay free as guests of the hotel while analyzing the islands' biodiversity.

As statutory approaches to conservation stall in legislatures around the world more interested in wars, immigration, and globalization, the new conservation class is buying island after island, and parcel after parcel of land, to enjoy the beauty of minimally developed nature. Just as private equity and hedge funds have reordered the world of investment, so too may private law reorder the world of biodiversity conservation.

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