UC Law Journal


Nicholas Whipps


Most U.S. laws and regulations are not well-suited to respond to the effects of climate change, and the Endangered Species Act—the central federal law meant to protect threatened and endangered species at all costs—is no different. Conservation banking, an Endangered Species Act policy, is a market-based conservation strategy that incentivizes landowners to conserve species on their land. However, fee simple conservation strategies are ill-suited to protecting species on the move due to climate change. This Note first highlights the inadequacies of the current conservation banking system, then suggests how policy makers can transfer the market-based credit system used in conservation banking to a more climate-adaptive system that protects species on the move, which would better meet the goal of the Endangered Species Act to restore populations of listed species. This market-driven climate-adaptive strategy is a more effective means of protecting species that will be moving, while also helping to decrease the traditional conflict between species protection and use of private land.

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