Dave Owen on the Conservative Turn Against Compensatory Mitigation

Published on: Author: John Leshy

In his new article titled “The Conservative Turn Against Compensatory Migration,” published earlier this year in Environmental Law, Professor Dave Owen starts with a question that has puzzled more than a few observers of environmental regulation over the past year or so; namely, why has the Trump Administration (through Interior Secretary Ryan Zinke) denounced, and appeared to abandon, an idea long embraced by many conservatives, of permitting resource developers to provide “compensatory mitigation” to gain regulatory approval of their projects? Professor Owen’s paper elegantly unpacks the concept’s complex history, navigating the twists and turns that led up to Zinke’s pronouncement.


The core of “compensatory mitigation” is, as Professor Owen puts it, that regulated entities “receive permission to engage in environmental environmentally degrading activities that otherwise would be prohibited, and in return, they provide extra environmental benefits at some other time or place.” To illustrate from the context in which it is perhaps most familiar, a developer might secure government permission to fill in a wetland if it agrees to restore a wetland somewhere else that is presumably of comparable ecological value. (It is one subset of the broader concept of mitigation; other subsets require a developer to avoid or minimize impacts of its activities.) Putting compensatory mitigation into practice can be quite complex; sometimes it is administered through third parties like mitigation banks. To the uninitiated, Professor Owen’s paper provides a clear, user-friendly explication of how the idea is supposed to work and how it sometimes does and sometimes doesn’t provide the benefits it promises. 


Over the last three decades or so, compensatory mitigation has acquired a reputation as a “market-friendly, neoliberal policy,” as Professor Owen puts it. Besides offering the regulated more flexibility, it requires regulators to quantify the environmental values they are charged with protecting, which is supposed to bring more discipline to amorphous value judgments often involved, and which can also unleash a kind of marketplace for mitigation that itself can be beneficial. Professor Owen plumbs the reasons why this reputation emerged, and whether it is deserved. His analysis is informed by his command of the scholarship in the area, and especially by his own years in environmental practice and through the interviews he conducted with several former governmental officials with extensive experience in the area. This “how it works in the real world” flavor sets this paper apart from, and indeed several cuts above, most work in this area.


While compensatory mitigation is usually thought of in the context of environmental regulation, it has been applied to several different kinds of regulatory programs and is found at the local, state and federal levels, as well as in other countries. Professor Owen’s analysis should be of value to anyone engaged in scholarship or practice involving government regulation in general. It is also of more than passing interest to students of politics, for a number of the arguments he examines pro and con are as much about appearance as reality, an idea familiar to anyone who has worked in politics.


So, why has Interior Secretary Zinke, a supposed devotee of Republican President Theodore Roosevelt’s brand of vigorous conservation, called the very idea of compensatory mitigation “un-American,” and promised to end it? Was Zinke’s decision, like so many coming from the current Administration, simply a reaction to the fact that President Obama gave prominent blessing to the idea? Did Zinke simply misapprehend the concept? Or was he twice as clever as many observers perceived, throwing a bone to libertarians by denouncing the idea, but having no intention of ending the practice? Is the embrace of compensatory mitigation by the mainstream of the regulated community the result of their having been sold a bill of goods by environmentalists and regulators? You’ll have to read Professor Owen‘s probing and entertaining analysis to find out. It’s worth it.