Wednesday, January 8, 2014

The Permanence of Conservation Easements - Is Forever A Good Thing?

Bruce Ritchie has an interesting piece on his blog about the permanence of conservation easements. He notes that these easements are supposed to be "perpetual," and he explores whether this means "forever." He also explores whether this is a good thing or not:
Changes in climate or scientific understanding may reduce the public benefit of some purchases. Surrounded by development, an “island” of conservation may no longer be as valuable when weighed against the need for, say, a hospital. 
University of Virginia law professor Julia D. Mahoney wrote in a research paper that permanent conservation easements may create a legal mess for future generations. She argues that preservationists should rely on future generations to make wise land use decisions. 
“Such an approach would compel today’s preservationists to abandon the illusion that they can save nature through calculated efforts to restrict the options of future generations,” she wrote. “Their descendants, however, might thank them.”
It's a good question, since 425,000 of the state's 2.4 million acres (18%) of conservation land purchased since 1990 are through conservation easements.

I explained my own views on this in a 2010 article in the Environmental Law Report, Fighting the Lure of the Infinite: Lease Conservation Easements at the Urban Fringe. In it, I argued that contrary to popular opinion, perpetual conservation easements are less useful than at the urban fringe:
Today, local, state, and federal governments provide incentives intended to conserve agricultural uses. One of those incentives, the conservation easement, is flourishing in both quantity and acres conserved. Perpetual conservation easements are generally assumed to be superior to shorter term lease conservation easements because of a preference for stronger, more permanent restrictions. Some commentators question the sensibility of this preference, pointing out that citizens are most often interested in conserving agricultural land on the urban fringe. This type of land use is best conserved by lease conservation easements, and least likely to be conserved by perpetual conservation easements. Alternatives, such as state and federal amendments allowing lease conservation easements to receive the same tax benefits as perpetual conservation easements, may allow for more effective conservation of agricultural uses of land.
What do you think?