Conservation Easements: Essential Tools for Conserving a Modern World

Matthew Nardone Natural Resources Conservation

Living in the twenty-first century, we as a society face a wide array of environmental problems that pose serious concerns for our sustainability, prosperity, and even existence if they are not addressed.  These problems will indiscriminately affect every man, woman, and child on Earth regardless of wealth, race, creed, or sexual orientation.  Many of these problems have already begun to happen, like the too common scene in much of Earth’s periphery nations where villagers starve after their soil turns to sand and the logging company drives down the road to the next town.  People in West Virginia live in uncertainty stemming from the potentially toxic water they consumed earlier in 2014 as a result of a spill in the coal processing industry (Valentine, 2014).  Other problems have not fully shown their fullest devastation, but unmitigated climate change as a result of the greenhouse effect is predicted by leading scientists to increase sea level, threatening major coastal cities (Environmental Protection Agency, n.d.) as well as increase the range and severity of droughts worldwide, contributing to the associated issues of soil erosion and crop failure (EPA, n.d.).  As landscapes and ecosystems collapse, habitat for wildlife has shrunk to dwindling amounts or been altered to beyond repair for some species, resulting in Earth’s 6^th mass extinction, still ongoing, in which The Center for Biological Diversity estimates that “dozens [of species are] going extinct every day.” (n.d.) This loss to biodiversity is limiting our knowledge of the genetic data pool where cures for debilitating diseases, or materials for new technologies wait to be discovered.  So who solves these problems? And how?

There is no one way to combatting the issues that threaten the environment today, but we all are needed for any of them to work.  Responsible landowners, informed voters and policy makers, and regulated business people all have a part to play, but for the purposes of this paper I will choose to focus on the first two.  So how do ordinary people make a difference in the fight against climate change and environmental degradation?  We fight fire with fire, or rather save the environment with the environment.  Nature is the best filter, Earth has been dealing with disturbances its whole life and transformed itself, healed itself into the beautiful Eden we know.  The only problem is under current circumstances in many places around the globe, nature is not always profitable.  It is easy to see why a poor Amazonian landowner would rather convert his patch of rainforest to grazing land, selling off the expensive exotic timber in the process, yielding him about 2,400 dollars per acre (Save the Amazon Coalition, n.d.).  What isn’t clear is why the tax code and environmental laws of this Amazonian farmer’s jurisdiction aren’t structured to incentivize against this kind of activity, when any informed policy maker should be convinced by the overwhelming facts supporting anthropogenic climate change. One “nature-based” solution which requires the active participation of governments and citizens alike is the strategic implementation of conservation easements, tools that incentivize landowners to utilize and maintain their land for conservation purposes.  Conservation easements are a cost effective, market based solution which offer a wide range of environmental and economic benefits to both the landowner and society.  We should be investing  both public and private environmental funds into creating conservation easements at home and abroad, as well as researching current easements, and educating the global population about the benefits of these programs, as part of a larger scale movement to mitigate the effects of climate change and environmental degradation.

Conservation easements are defined as an agreement between a landowner and a land trust or government unit, to constrain the use of a specified land area for a specific conservation objective, while allowing landowners to keep ownership of the land (Merenlender et al., 2002).  Conservation easements are interesting because no two are exactly alike, rather are independent contracts agreed upon by two free parties and authorized by the government to enact a clause to the title of land constricting future use to the specified use outlined in the easement (Merenlender et al., 2002).  They can be established in perpetuity or for a pre-determined set of time.  Popular objectives for conservation easements include agriculture, sustainable forestry, recreation areas, wildlife refuges, watershed health, and other ecosystem services.  An example of a successful agricultural easement program is the Maryland Agricultural Land Preservation Foundation, MALPF (Geoghegan, Lynch, Bucholzt, 2003).  MALPF purchases easements that are at least 50 acres of farmland, and whose soils are at least 50% USDA Class I,II, or III (Geoghegan et al., 2003).  This organization creates an easement value estimate by subtracting the agricultural value of the land from the retail value of the land, compensating the landowner in the amount of the just calculated easement value, in exchange for creating a perpetual clause in the title of the land parcel, binding the area’s land use to agriculture for all present and future landowners (Geoghegan et al., 2003).

Other easements might incentivize landowner participation through tax credits.  The Endangered Species Recovery Act of 2010 introduced federal tax credits for landowners “whose property contains the habitat of an endangered or threatened species and who enter into a habitat protection agreement a tax credit for costs relating to habitat protection easements and restoration.” (United States Congress, 2010)  Costs, in this context not only means reimbursement for the direct costs in maintaining the habitat conditions, but also the cost associated in decreased land value with removal of developmental rights.  This type of incentive at the federal level reflects the shifting sentiment of many Americans towards recognizing biodiversity as an intrinsic right; an example of how environmental policy can coincide with the values and needs of a society, and a great example to other world leaders of how the government can take charge of environmental challenges without the political “baggage” of enacting command and control policies.

In a local case conservation easements have been created to preserve aesthetic values associated with the landscape.  Amherst is home to the Holyoke Range, a span of mountainous land in the southern part of town.  According to John Stranlund, a tenured professor of resource economics here at the University of Massachusetts Amherst, about 20 years ago the Kestrel trust, a local land trust organization stepped in to help conserve a large portion of the range threatened by an ambitious real estate developer.  Apparently the owner of the property in question agreed to sell to the developer, a move that created a massive backlash of public dissent, citizens arguing the neighborhood would turn a scenic landscape into an eyesore.  This argument made the landowner reconsider her original decision and breaking her contract with the developer donated her property to the Kestrel Trust, thus conserving it in perpetuity for all of Amherst to enjoy.  The encouraging part of this story comes when the Kestrel trust came in and paid the steep legal retribution she faced for breaking her contract with the developer (J. Stranlund, personal communication, April 2, 2014).  This highlights the role of local organizations and communities making a real difference on a small scale with actions that can carry over to a global scale.

Some easements can be created simply for the ecosystem services they provide.  Conserved forest lands around aquifers can act as filters for excess nutrients carried by surface flow over agricultural land, or uptake pollutant and sediment loads associated with certain industries such as natural gas fracking.  Since 2005 there have been 82,000 new fracking wells installed in the United States, producing 280 billion gallons of toxic wastewater in this short time span (Rumpler, 2013).   Fracking poses an especially dangerous risk to our water supplies because of the lack of regulation around fracking startup operations (Rumpler 2013).  Fracking companies are still subject to existing environmental laws such as the Clean Water Act, but Illinois was the first state to pass legislation specific to the regulation of the fracking industry, causing the industry to look towards states like California, New York, Maryland, and North Carolina, all states with no such regulations (Rumpler, 2013).  The reality is fracking companies create thousands of jobs and so state by state legislation regulating their operations will most likely prove a lengthy process, while implementation of conservation easements to protect water supplies is much easier. And while easements can never address the true cause of any environmental problem they can prove undoubtedly useful in mitigating the effects.

Despite the lengthy list of environmental benefits conservation easements provide and despite the fact that landowners are within every right to participate in them if they wish to, there is still a voice (louder than large) that attempts to undermine the past and potential progress attributed to conservation easements.  Most of this resistant audience in comprised of those with a vetted interest in minimizing conservation efforts.  These people might include real estate developers or loggers, the politicians lobbied by those industries and the populace they have managed to misinform.  This resistant group defends their negative stance on the implementation of conservation easements through several arguments that can be disassembled logically.  First they will say that all conservation easements are perpetual in nature creating land that can never again be changed for any pressing economic or demographic scenario that might arise in the future.  It should be clear to readers of this paper that this is false just based on the definition of conservation easements outlined earlier.  Each easement is created on an individual basis and laws do not necessarily only grant incentives to properties conserved in perpetuity.  The Endangered Species Recovery Act of 2010 is only in effect until 2015 (United States Congress, 2010).  Another falsity of this claim is that all private property, whether protected by a conservation easement or not, is subject under the fifth amendment to eminent domain, an executive power of the state upheld in 1876 in Kohl vs. The United States (Cornell Law School, n.d.), which gives the government the right to repossess any property for public use according to Cornell Law School’s Legal Information Institute’s description of the matter (Cornell Law School, n.d.).  Another false argument brought forward by the opposition is accusations of conservation easements being tools for government intrusion in the lives of regular Americans.  And while research has shown that many landowners do feel apprehensive about creating easements in fear of government interference (Merenlender et al., 2002), these studies can hardly be considered conclusive nor should apprehension due to ignorance be an argument against any effective and essential policy.   Landowners who still fear government intrusion can simply choose to not volunteer their land into an easement.  On top of this there is the obligation of government to the environment.  The Clean Water Act of 1972 makes the federal government responsible for maintaining clean water standards (United States Congress, 1972).  Conservation easements are a cost effective way of ensuring these standards, which of course is an obligation of the government as well, to do things in the most cost effective manner.  And would critics of government intrusion rather have citizens volunteer their land for easements, or have them bought up with taxpayer money?  Most likely they would complain of the government waste being showcased by the later.  Critics also make the claim about losing future use of the land but sustainable forestry and agriculture are viable productive land uses that generate economic activity.  And that leads to the argument you will hear the most from developers and the like which is that conservation easements hurt the economy.  But to debunk this myth lets first take a look at some of the economic impacts of conservation easements and then assign a positive or negative value to their economic effects.

Conservation easements raise property values.  While the conserved parcel will be lowered in value because of the loss of developmental rights, surrounding parcels will increase in value in relation to proximity to conserved space while controlling for other factors.  Clarke University economics chairwoman Jacqueline Geohegan, shows in a hedonic pricing model the association between housing prices and proximity to open space, area of open space, and area of conserved forest or farmland, along with a host of other variables to control for other factors influencing housing price (2003).  All of the coefficients of the conservation related variables in the model have positive values meaning a positive association between the listed independent variables and the dependent variable (housing price).  Computing the t-statistics from the residuals of the regression, she shows all of these findings to be statistically significant at a 95% confidence level (Geoghegan et al. 2003).  Housing prices are related to local economies because higher values create higher tax revenues, as well as bring in higher income individuals whom economic theory shows spend more money, fueling small business growth.  In developing nations conservation easements would protect the land and fisheries from environmental degradation ensuring viable self-sufficient economies in the future (here economy is meant to denote a way of making a living, not necessarily monetary).  Based on these findings the argument that conservation easements harm the economy is debunked as research shows the contrary.

Understanding all of the issues facing our world is only the start to solving them.  Progress takes action and conservation easements allow governments and citizens alike to participate in this action, in a cost effective and productive, manner that coincides with free market values.  Conservation easements bring added, often overlooked economic benefits to local communities reaching beyond just the landowners of easements.  Conservation easements are adaptable to many scenarios and problems and remain effective for longer than the lives of the landowners who set them up.  That said if the public use of the land is deemed greater for another use, the government can step in and using the power of eminent domain, repossess the property.  Conservation easements use nature as the primary mechanism for helping nature, a concept as old as life itself, and the implications of their benefits can be seen at local, regional, and global levels.  The Earth is the most complex self-regulating, life-support system known to mankind; why not let it do what it’s good at? But to do this we need to set aside space for this to happen, reward those who make it happen, and encourage through support, research, and education, the continued spread and success of conservation easements over the world.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

References

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Cornell Law School. (1992). National eminent domain power. Legal Information Institute. Retrieved from http://www.law.cornell.edu/anncon/html/amdt5bfrag4_user.html

Save the Rainforest Coalition. (n.d.). Save the Rainforest. Save the Rainforest Coalition.               Retrieved from http://www.savetheamazon.org/

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Geoghegan J., Lynch L., Bucholtz S. (2003). Capitalization of open spaces into housing values   and the residential property tax revenue impacts of agricultural easement programs. Agricultural and Resource Economics Review, 32(1), 33-45 doi: http://cfinetwork.org/Capitalization%20of%20Open%20Spaces%20into%20Housing%20Values.pdf

Merenlender, A.M., Huntsinger, L., Fairfax, S.K. (2002) Land trusts and conservation easements:

Who is conserving what for whom? Conservation Biology, 18(1), 65-75. doi:  http://ucanr.org/sites/merenlender/files/143679.pdf

 

Rumpler, J. (2013). Fracking by the numbers Key impacts of dirty drilling at the state and national level. Environment America. 4-41. doi: http://www.environmentamerica.org/sites/environment/files/reports/EA_FrackingNumbers_scrn.pdf

Valentine, K. (2014, February 11). Breaking: Pipe break at coal facility contaminates West Virginia waterway. Climate Progress. Retrieved from http://thinkprogress.org/climate/2014/02/11/3277541/west-virginia-coal-slurry-spill/

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