Friday, November 12, 2021
King Burnett (Uniform Law Commission), John D. Leshy (Hastings), and Nancy A. McLaughlin (Utah) have published Building Better Conservation Easements for American the Beautiful at the Harvard Environmental Law Review online. Here is the introduction:
In January 2021, the Biden Administration endorsed the goal of protecting 30 percent of the nation’s lands and waters by 2030 to conserve biodiversity and help curb greenhouse gas emissions. The Administration’s initial report on this “America the Beautiful” initiative, issued in May, indicates that federally-deductible conservation easements are likely to play an important role in its implementation. This essay addresses whether and how such easements should be counted in this process.
This matter is of great importance. Donations of conservation easements, by which landowners receive generous federal tax deductions if they restrict the use of their properties in perpetuity in the interest of conservation, cost American taxpayers billions of dollars annually in foregone revenue. In addition, growing reports of abuse and other developments raise serious questions about the effectiveness of deductible easements in achieving durable conservation outcomes.
This essay outlines the fundamental problems plaguing the deductible conservation easement program. It compares practices regarding deductible conservation easements with the protocols employed in various government conservation easement purchase programs. It concludes with specific suggestions for making deductible easements an effective tool for achieving the America the Beautiful goal. Simply accelerating the pace of conservation easement donations is not enough—“to achiev[e] durable outcomes that meaningfully improve the lives of Americans,” better conservation easements need to be built.