Disenchanted with Conservation Easements

The Antiplanner used to think that conservation easements were a great idea. Only 30 percent of the nation’s land is public, and easements provided a way to protect some of the remaining 70 percent from development.

But lately I’ve come to have my doubts. To get tax credits for easements, they have to be perpetual. And who are we to try to decide the fate of land for future generations? Just as it might be unwise to wantonly destroy something that people in the future might value, it could be similarly inappropriate to lock it up and throw away the key.

Is Colorado running out of open space?
Flickr photo by Gord McKenna.

In recent days, the Rocky Mountain News has documented some other abuses of the easement process:

• Landowners claiming huge tax deductions for easements on land that may not be worth that much.
• Landowners allowing uses, such as oil drilling, that the IRS says cannot happen in land under conservation easements.
• And other landowners claiming tax credits for easements on the land between their homes and in other areas that are already developed or semi-developed.

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The Rocky also worries that most of the land in easements is not open to the public. But when the easement law was created, no one expected that conservation lands would be open to the public. They were for conservation, not recreation, so I have less sympathy for that complaint.

The abuses in Colorado are a predictable result of any tax credit or other giveaway program. The real question is: what are we really getting for such easements? In a few cases, easements may protect habitat for some endangered or otherwise scarce plant or animal. But in most cases, all we are really getting is open space. In the West, where more than 95 percent of the land is open space (and half is government owned and never likely to be developed), that is a questionable benefit.

Advocates of easements say that, if ever the land in question becomes critical for development, there are ways to break the easement. But how would we know? Something like 95 percent of the land around Jackson, Wyoming is public land. Local land trusts locked up most of the rest of the land in easements. Now land and housing prices are outrageously high, but hardly anyone realizes that it is because of the easements — they think it is because Jackson is a “boom town.” In fact, towns become boom towns — that is, their real estate becomes ridiculously expensive — because of easements and other land-use regulation.

So people are not likely to recognize the symptoms of an easement-caused land shortage even when they are staring at them in the face in the form of unaffordable housing and land. This suggests that the perpetual nature of easements will prove very costly to more areas than just Jackson.

The solution might be to allow people to take tax credits for less-than-perpetual easements. But I can understand why the IRS is reluctant to do that: everyone who doesn’t plan to develop their land until next year or the year after would claim an easement. It would probably be better to simply tax land for what it is worth under its current use, rather than the “highest and best use,” and repeal the tax credits for easements.

We are a wealthy nation, and if we need to pay someone not to develop their land to protect an endangered species, we can afford to do so. But to give tax credits willy-nilly to everyone and anyone, regardless of the value of the resources they are conserving, makes no sense.