A Constructive Reformist's Perspective on Voluntary Conservation Easements

By: Nancy McLaughlin
A Constructive Reformist's Perspective on Voluntary Conservation Easements by Nancy A. McLaughlin
In an article written especially for the Ecosystem Marketplace, Nancy A. McLaughlin, an expert on the legal issues surrounding easements, argues that conservation easements, with some reforms, can be a relatively efficient and effective means of pursuing conservation goals in the United States.
https://www.landcan.org/article/A-Constructive-Reformists-Perspective-on-Voluntary-Conservation-Easements/162/

 

Amending Perpetual Conservation Easements - A Case Study Of The Myrtle Grove Controversy

By: Nancy McLaughlin
Over the past quarter century there has been an explosive growth in the use of conservation easements as a land protection tool. A conservation easement is a deed transferred by the owner of the land encumbered by the easement to the holder of the easement (generally a government agency or a charitable conservation organization referred to as a “land trust”) that restricts the development and use of the land to achieve certain conservation goals, such as the preservation of open space, wildlife habitat, agricultural land, or an historic site. The vast majority of conservation easements are granted “in perpetuity” because government agencies and land trusts generally acquire only perpetual easements, and landowners donating easements are eligible for the various federal and state tax incentives only if the easements are perpetual.

https://www.landcan.org/article/Amending-Perpetual-Conservation-Easements--A-Case-Study-Of-The-Myrtle-Grove-Controversy/214/

 

Conservation Easements - A Troubled Adolescence

By: Nancy McLaughlin

The conservation easement is arguably the single most popular private land protection tool in this country today, and its use has increased dramatically (indeed, almost exponentially) over the past two and a half decades. With this increased popularity, however, have come increased reports of abuse and serious questions regarding the efficacy of conservation easements as a land protection tool. To set the stage for John D. Echeverria and Edward Thompson, Jr. to debate the relative merits of voluntary conservation easement acquisitions and “command and control” regulatory efforts, Part II of this article briefly describes conservation easements and how they operate to protect the conservation values of land; Part III describes the dramatic growth in the use of conservation easements over the past two and a half decades; and Part IV highlights some of the more troubling issues that have arisen as a result of the growth in the use of easements, as well as proposals for reform. Part V concludes on an optimistic note, asserting that if reforms can be successfully implemented, conservation easements can emerge from their troubled adolescence to take their appropriate adult role in the panoply of land conservation techniques, and may help lead us to a new paradigm of private property ownership.

https://www.landcan.org/article/Conservation-Easements--A-Troubled-Adolescence/174/

 

Conservation Easements - Perpetuity and Beyond

By: Nancy McLaughlin

Perpetual conservation easements are intended to protect the particular land they encumber for the conservation purposes specified in the deed of conveyance “in perpetuity”—or at least until circumstances have changed so profoundly that continued protection of the land for those purposes is no longer feasible. To protect the public interest and investment in perpetual conservation easements, and, at the same time, permit adjustments to be made to respond to changing conditions, such easements should be treated like any other form of charitable asset acquired by a government or charitable entity for a particular charitable purpose—i.e., as subject to equitable charitable trust principles. This issue to date. This Article cautions that perpetual land protection is not appropriate in all circumstances and recommends a more considered use of perpetual conservation easements as a land protection tool. This Article also explores the possible use of a number of nonperpetual conservation easements to accomplish land protection goals. Article outlines the considerable support for applying charitable trust principles to perpetual conservation easements, including uniform laws, the Restatement of Property, federal tax law, and case activity on this issue to date. This Article cautions that perpetual land protection is not appropriate in all circumstances and recommends a more considered use of perpetual conservation easements as a land protection tool. This Article also explores the possible use of a number of nonperpetual conservation easements to accomplish land protection goals.

https://www.landcan.org/article/Conservation-Easements--Perpetuity-and-Beyond/176/

 

Conservation Easements - Why and How?

By: Nancy McLaughlin

According to the census data collected by the Land Trust Alliance (LTA), over the past two decades there has been a dramatic increase in the number of local, state, and regional land trusts operating
in the United States,1 and in the number of acres encumbered by conservation easements2 held by such land trusts.3 In 1980, only 431 local, state, and regional land trusts were operating in the United States, and they held conservation easements encumbering only 128,001 acres.4 As of 2003, the number of local, state, and regional land trusts operating in the United States had jumped to 1,526, and those land trusts held conservation easements encumbering more than 5 million acres.

The dramatic growth in the number of land trusts and the use of conservation easements can be attributed to a variety of factors,including increasing development pressures;6 a growing isillusionment with the government’s ability to adequately protect land from development through regulatory measures;7 the enactment in 49 states and the District of Columbia of legislation that removes common law impediments to the long-term validity of conservation easements (the “easement enabling statutes”);8 and a variety of generous federal and state tax incentives offered to landowners who donate conservation easements.9 In addition, conservation easement sale and donation transactions are popular with landowners because they are voluntary and the terms of an easement can be tailored to the specific characteristics of the encumbered land and the specific conservation purposes of the easement.

https://www.landcan.org/article/Conservation-Easements--Why-and-How/177/

 

Could Coalbed Methane Be the Death of Conservation Easements?

By: Nancy McLaughlin

This article explains that a charitable gift of a perpetual conservation easement should be treated like any other gift of property made for a specific charitable purpose—i.e., the holder of the easement should not be permitted to terminate the easement without court approval in a cy pres proceeding, where appropriate consideration would be accorded to both
the intent of the donor and the public interest in the continued enforcement of the easement.

https://www.landcan.org/article/Could-Coalbed-Methane-Be-the-Death-of-Conservation-Easements-/182/

 

In Defense of Conservation Easements - A Response to the End of Perpetuity

By: Nancy McLaughlin and W. William Weeks
Charitable gifts made to government entities and charitable organizations can be either restricted or unrestricted. An unrestricted charitable gift is a contribution of money or property that the donor makes without attaching any conditions on its use by the recipient entity or organization. An entity or organization in receipt of an unrestricted charitable gift is free to use that gift as it sees fit in accomplishing its general public or charitable mission. 
https://www.landcan.org/article/In-Defense-of-Conservation-Easements--A-Response-to-the-End-of-Perpetuity/216/

 

Increasing the Tax Incentives for Conservation Easement Donations - A Responsible Approach

By: Nancy McLaughlin

The use of tax incentives to encourage private landowners to donate conservation easements has become increasingly popular as policy makers search for ways to combat the growing problem of urban sprawl. The tax incentives have worked remarkably well to encourage private landowners who have both the will and the means to shoulder a significant percentage of the economic cost of protecting their land through the donation of conservation easements. However, the success of the tax incentive program should not blind its proponents to its inevitable inefficiencies and limitations. Continually increasing the tax incentives in an effort to make them attractive to a broader class of landowners – including, in particular, so-called “land rich, cash, poor” landowners – could have unintended consequences. Thus far, the land trust community has been able to recognize and respond to the challenges presented by the acquisition and long-term stewardship of conservation easements. However, the capacity of land trusts (and the often less well-equipped government agencies) to respond to such challenges is not unlimited. Some easement holders could be overwhelmed if Congress and the states adopt policies that result in a sudden surge in easement donations. Moreover, exploitation and abuse of the tax incentives by profit motivated “donors” could imperil the very existence of the tax incentive program and call into question both the credibility of the land trust community and the use of conservation easements as a private land protection tool. This article undertakes a much-needed critical analysis of the tax incentives designed to encourage conservation easement donations and proposals to increase those incentives. The article ultimately concludes that a responsible approach to increasing the tax incentives is called for: Congress should increase the incentives only if some assurance can be had that the increase will be efficient, that land trusts and government agencies have the expertise and resources to appropriately screen and steward the anticipated additional easements, and that the increase will not encourage exploitation and abuse.

https://www.landcan.org/article/Increasing-the-Tax-Incentives-for-Conservation-Easement-Donations--A-Responsible-Approach/194/

 

Protecting The Public Interest And Investment In Conservation - A Response To Professor Korngold’s Critique Of Conservation Easements

By: Nancy McLaughlin

The use of conservation easements as a land-protection tool has grown considerably over the past several decades, and with that growth has come criticism from a variety of sources.1 In an article published in this journal, “Solving the Contentious Issues of Private Conservation Easements: Promoting Flexibility for the Future and Engaging the Public Land Use Process” (hereinafter “Promoting Flexibility”), Professor Gerald Korngold offers his most recent critique of conservation easements, as well as a variety of suggestions for reform.2 While the use of conservation easements has not been free of inefficiencies and abuses, and appropriate reforms could make easements a more effective tool, some of the reforms suggested in “Promoting Flexibility” could have a significant adverse impact on what has heretofore been a largely successful voluntary land-protection program and a uniquely American form of conservation philanthropy.

Many who have questioned the use of conservation easements as a land protection tool view such easements primarily through the prism of real property law and as “private” arrangements. This perspective is perhaps understandable given that conservation easements are partial interests in real property and the land protected by conservation easements continues to be owned by private persons. But conservation easements are not simply interests in real property, nor are they accurately described as private. Rather, they are public or charitable assets and their status as such has important legal and policy implications that are often misunderstood or overlooked by critics and would-be reformers.

Part II of this article discusses five misconceptions that tend to pervade the criticism of conservation easements and result in proposals for reform that would be contrary to the public interest. Part III discusses three of the primary reforms suggested in “Promoting Flexibility” and why those reforms are both unnecessary and inadvisable.3 Part IV briefly concludes.

https://www.landcan.org/article/Protecting-The-Public-Interest-And-Investment-In-Conservation---A-Response-To-Professor-Korngolds-Critique-Of-Conservation-Easements/200/