Prospective environmental restoration/ restoration up front: a concept for an incentive-based program to increase...

This article describes a concept variously termed prospective environmental restoration, restoration up front, or restoration banking. Briefly, the concept centers on the ability of an entity, public or private, to gain durable credits for undertaking proactive restoration activities. Once obtained, these credits can be applied to an existing liability, held in the event of a future liability, or traded or sold to others that might have need for the credits. In the case of a natural resource damage claim or response action, possessing or applying the credits does not negate the need for responsible entities to clean up spills or releases of hazardous substances or oil or to address their clean-up requirements under applicable federal and state statutes. Concepts similar to prospective environmental restoration/restoration up front include wetlands mitigation banking, conservation habitat banking, and emissions trading. Much of the concept and details provided herein stem from the practice of natural resource damage assessment, although that is not the sole driver for the concept. The concept could also apply where the credits could be used to offset other environmental liabilities, for example, to provide habitat mitigation where development is being planned. The authors believe that the concept, if widely applied, could reduce the time and costs associated with restoration and perhaps lead to an increase in voluntary restoration and conservation nationally. Currently, there are no state or federal regulations or policies that directly provide for this approach.