Academic journal article Law and Contemporary Problems

Foreword: Conservation Easements: New Perspectives in an Evolving World

Academic journal article Law and Contemporary Problems

Foreword: Conservation Easements: New Perspectives in an Evolving World

Article excerpt

The land trust community and governments at all levels have become married to conservation easements as their land conservation tool of choice. The numbers speak for themselves: as of the date of this writing, there were reportedly 1,700 land trusts that have protected twelve million acres of land by use of conservation easements. (1) The bulk of this growth both in conservation easements and the land trusts that deploy them has occurred since the 1980s when federal income tax incentives became more fully utilized by conservation easement donors. But the parties to this marriage have become complacent and inattentive in the face of a rapidly changing world resulting from global ecological catastrophes such as climate change and accelerated species extinction.

Since its conception, this symposium's purpose has been to avoid restating the conventional wisdom about conservation easements and, instead, to stimulate innovative thinking and reforms in conservation easement law and practice. In addition to raising issues relating to the use of perpetual conservation easements in a rapidly changing world, this symposium considers whether conservation easements truly provide public benefit; whether they are being appropriately tracked so they can be effectively monitored and enforced and taken into account in local, state, and regional land use planning; whether the public is paying an appropriate price for the social benefits provided by conservation easements; and whether the conservation easements that are acquired are not later lost through lack of sufficiently robust legal mechanisms or inappropriate interpretations of the law. Whether readers agree or disagree, the ideas they will encounter here will cause them to reassess business as usual. In short, the point of every article in this volume is to challenge readers with new perspectives and ways of thinking.

This symposium launches with an article by Jeff Pidot, a former Deputy Attorney General in Maine where he was Chief of the Natural Resources Division, following up on his seminal 2005 work for the Lincoln Institute of Land Policy calling for reform of the nation's conservation easement laws. In this latest work, Pidot gives an account of Maine's experiences in forging and implementing first-in-the-nation legal reforms governing conservation easements. Maine's reformers recognized that the state's burgeoning population of land trusts and their expanding holdings of conservation easements (more than any other state) would inevitably fail under the state's version of the Uniform Conservation Easement Act.2 The resulting legal overhaul in Maine tackled many of the thorniest topics facing conservation easements nationwide: monitoring; backup enforcement; amendment and termination; tax foreclosure; and merger. Among Maine's reforms is the mandate that all conservation easement holders annually register their portfolios of conservation easements with the state. Because this requirement covers all conservation easements, it has the salutary effect of creating not only an inventory of newly created easements, but also an annual accounting of monitoring and changes in older easements as well.

In preparing this account, Pidot draws upon his own experience in state government as well as interviews, surveys, and observations of other conservation easement participants in Maine. With a view to examining Maine's reforms as a model for other states (most recently, Rhode Island has enacted several of Maine's provisions), Pidot evaluates how Maine's reforms have worked and what further improvements should be considered. As reported by Pidot, Maine's reforms provide lessons for all of us.

Following Pidot's discussion of reforms in state conservation easement law, Daniel Halperin, Stanley S. Surrey Professor of Law at Harvard Law School and former Deputy Assistant Secretary of the Treasury for Tax Policy, discusses federal tax policy concerns relating to the charitable deduction for conservation easement donations as codified in IRC section 170(h). …

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