Abstract
Forty years ago, Congress passed many of the nation’s federal environmental laws. Congress and state legislatures recognized the growing environmental damage occurring in the country and passed laws restricting the actions of businesses, individuals, and government entities. One of the hallmarks of these environmental laws is the growth of permitting programs. Acknowledging that a halt to all pollution and development was both impractical and undesirable, governments developed programs to minimize, monitor, and mitigate environmental harms. Over the past forty years, private organizations have been increasingly involved in these permitting programs. For example, through conservation easements and mitigation banks, private businesses and nonprofit organizations have taken on the responsibilities of monitoring and enforcing environmental permits.This article examines the increasing privatization of environmental law by looking at the example of mitigation programs. Concerns regarding democracy and accountability arise when government agencies hand off their mitigation duties embodied in permit obligations to private organizations. 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 underexamined. This article argues that environmental conservation is a public duty and examines concerns that should be addressed with the increasing privatization of that task.