The Emergence of Exacted Conservation Easements

• Publication year: 2021

84 Nebraska L. Rev. 1043. The Emergence of Exacted Conservation Easements

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Jessica Owley Lippmann(fn*)

The Emergence of Exacted Conservation Easements

TABLE OF CONTENTS

I. Introduction ...................................................... 1044
II. Background Principles of Environmental Law ....................... 1046
A. Rise in Environmental Regulation .............................. 1047
B. Reaction to and Rejection of Environmental
Regulation .................................................... 1050
1. Resistance to Command-and-Control
Regulation ................................................ 1051
2. Increased Use of Contract Law ............................. 1053
3. Concerns About Takings Claims Question the
Extent of Regulation ...................................... 1054
4. Rise-of-the-Local ......................................... 1055
III. Background Principles of Property Law ........................... 1062
A. Early Philosophical Notions of Property and
Ownership in America ......................................... 1062
B. The Evolving Meaning of Property ............................. 1068
IV. Emergence of Conservation Easements .............................. 1071
A. Common Law Rules Regarding Private Land
Protection Agreements ......................................... 1074
1. Easements .................................................. 1075
2. Real Covenants ............................................. 1078
3. Equitable Servitudes ....................................... 1082
B. Common Law Rules Left a Gap (Enforceable,
Assignable Negative Easements In Gross)....................... 1084
C. Fundamentals of Conservation Easements ........................ 1085
1. Four Methods for Creating Conservation
Easements: Donation, Sale, Eminent Domain,
and Exaction ............................................... 1088
2. Benefits of Conservation Easements ......................... 1089

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a. Benefits to Conservation Easement Donors
and Sellers ............................................. 1090
i. Conservation Goals ................................... 1090
ii. Tax Breaks .......................................... 1090 b. Benefits to Conservation Easement Holders ............... 1092 c. Benefits to Government .................................. 1093 d. Benefits of Conservation Easements to the Public .................................................. 1094
V. Emergence of Exacted Conservation Easements ....................... 1094
A. Exactions Generally ............................................ 1095
B. Rise of Exacted Conservation Easements ......................... 1095
1. Tradition of Government Use of Conservation
Easements Easily Expanded to Include Exactions ................................................... 1096
2. Exacting Conservation Easements as an
Alternative to Exercising Eminent Domain .................... 1097
3. Direct Outgrowth of State Conservation
Easement Statutes ........................................... 1099
4. Mitigation Mandates ......................................... 1099
C. Exacted Conservation Easements and State
Conservation Easement Statutes ................................. 1102
D. Comparison to Conservation Easements ........................... 1103
1. Factors Motivating Creation of Exacted
Conservation Easements and Traditional
Conservation Easements Differ ............................... 1103
2. Exacted Conservation Easements Always
Operate Under a Larger Regulatory Structure ................. 1106
3. Exacted Conservation Easements May Not Need
to Adhere to State Conservation Easement
Statutes .................................................... 1106
VI. Conclusion ....................................................... 1111

I. INTRODUCTION

Over the past thirty-five years, conservation easements have emerged as a new favorite land-preserving tool of conservationists.(fn1)

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The scholarship examining this tool has generally focused on donated and purchased conservation easements.(fn2) A largely over-looked category, however, is "exacted conservation easements."(fn3) Exacted conservation easements arise as mandated mitigation measures under environmental laws and land-use regulations. Property owners seeking to change their land must often obtain federal, state, and local permits. Increasingly, permit issuers require mitigation measures to compensate for environmental degradation or harms created by proposed projects. At times, these mitigation measures take the form of conservation easements.(fn4) Different from traditionally discussed conservation easements, exacted conservation easements are not donated or voluntarily sold. Exacted conservation easements are mitigation requirements for landowners seeking to fulfill goals other than land protection.

Although similar to other conservation easements in structure, exacted conservation easements are a different creature when it comes to landowner motivation and government involvement. The common picture of a conservation easement is a donation or sale where a landowner exchanges property rights in return for long-term security for her land and various potential tax benefits.(fn5) Wide-ranging tax benefits do not accompany exacted conservation easements, and conserva

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tion does not drive the landowners as their primary project goal. This motivation difference elevates concerns about enforcing these types of conservation easements.

We know little about these exacted conservation easements. There are no state or federally compiled databases, and no guarantee of consistency in structure or enforcement of the property rights. Therefore, these exacted conservation easements represent a difficult enforcement situation and bring into question their long-term viability.

This Article outlines reasons why exacted conservation easements emerged and why they are such a popular tool. This Article begins by looking at conservation easements generally and how they arose in the context of environmental law and property law. This emergence is most easily and correctly understood by examining the development of American environmental law and its subsequent rejection by many facets of society. What remains is a push-pull relationship: we still have environmental goals and values, but we dislike government regulation. Conservation easements become a way to protect the landscape without public intervention. With conservation easements, it may appear that we can solve all our problems through private market-based mechanisms rooted in freedom of contract that honor private property rights. Although exacted conservation easements are an extension of the conservation easement phenomenon, they do not embody the freedom of contract associated with other conservation easements and often tie directly to regulation of property. Thus, the exacted conservation easement is a tool that directly conflicts with many of the goals that gave rise to its emergence.

II. BACKGROUND PRINCIPLES OF ENVIRONMENTAL LAW

Changing trends in environmental laws, along with changing attitudes towards those laws help explain the emergence of conservation easements. Before the 1960s, environmental regulations focused on either publicly owned lands or classic theories of nuisance law.(fn6) The 1960s and 1970s saw the birth of more widespread environmental reg

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ulation expanding to include, among other things, actions on private lands. Environmental law extended to cover many facets of society. There was a growth of restrictions on private activities including restrictions on what one could do with privately owned land. Regulation and government bureaucracy grew, facing an eventual backlash with the Reagan administration in the 1980s. Property rights advocates rejected government control of both public and private land. People grew distrustful of the machinery of government and lobbied for a rollback of the restrictions. At the same time however, Americans still placed a high premium on environmental amenities.(fn7) This drove lawmakers, academics, and others to look for ways to protect land while allowing more personal freedom of action, which led to an endorsement of market-based approaches and a movement away from stringent command-and-control style regulation. This more flexible approach accompanied a call for less government regulation: any regulation that would remain should be made at the lowest, most local level of government possible.

As governments began to reduce what was seen as obtrusive conservation efforts, private organizations stepped in to cover the slack. Nongovernmental organizations called "land trusts" began to head conservation projects in areas they felt the government was performing inadequately. Conservation easements are a tool land trusts can use to conserve land outside of the regulatory context. Government agencies are no longer the only entities with the power to make landuse decisions. Additionally, conservation easements draw upon the same sentiments that call for regulation at lower levels of government. Much like the localism movements, conservation easement advocates invoke the narrative of local decision making.

Thus, conservation easements emerge for two seemingly conflicting reasons. First, land trusts look to conservation easements when they believe that governmental authorities are not protecting important ecological resources. Second, landowners and other conservation easement advocates endorse the tool precisely because it does not involve the government. One motivation stems from disappointment with the government's lack of intervention, and the other motivation draws upon a resistance to government involvement.

A. Rise in Environmental Regulation

Federal environmental regulation was slow to emerge in the United States. When European colonists first settled in...