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

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.

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