Jessica Owley


This article examines the increasing privatization of environmental law by taking a close look at mitigation measures in permitting programs. As mitigation has become an increasingly important element of permitting programs, permitting agencies have looked for outside organizations to help design, monitor, and enforce the mitigation projects. Thus, compensatory mitigation projects provide a good lens for examining the role of private organizations in environmental law. There are good reasons for drawing on the power of private organizations. They can provide flexibility and expertise as well as increased capacity. However, concerns regarding democracy and accountability arise when government agencies hand off duties to private actors. It is not clear that the private organizations have adequate oversight, and there are no clear mechanisms for stepping in when these organizations fail to perform (or inadequately perform) their conservation duties. This increasing privatization has largely occurred without a public debate regarding who is the appropriate entity to carry out and enforce environmental law. The privatization has gone unnoticed and under examined. Environmental conservation is a public duty, and we should be concerned with the increasing privatization of that task.