Negative Effects of Conservation Easements

I came across this article when doing research on the negative effects of conservation easements: “Condemning Conservation Easements: Protecting the Public Interest and Investment in Conservation” by Nancy A. McLaughlin (link).

To quote her conclusion at the end:

“The payment of just compensation to the holder of a conservation easement upon condemnation is mandated under any reasonable interpretation of the Takings Clause of the Fifth Amendment. Accordingly, the few easement-enabling statutes that provide to the contrary should be revised. The public is investing substantial financial and other resources in conservation easements and the significant and often unique and irreplaceable conservation and historic values they preserve. To protect this investment in conservation and historic preservation, government and nonprofit holders of conservation easements must both receive appropriate compensation upon the condemnation of easement-encumbered land and use such compensation to replace the conservation or historic benefits destroyed by the condemnation. Paying the economic value attributable to a conservation easement upon its condemnation to the owner of the encumbered land would confer an undue windfall benefit on the owner at the public’s expense. Alternatively, allowing condemning authorities to take easement-encumbered land without paying for the easement would have the perverse effect of making land protected for its conservation or historic values cheaper to condemn than similar unprotected land. Either result would directly contravene the strong public policy in favor of the use of conservation easements as a land protection tool.”

While the article is a good read and makes many valid points, there are other issues with the concept of these easements:

  1. By “public” just what subset of the “public” is truly represented if fair compensation for the Takings is given to the owner of the encumbered land? Are a handful of city planners and a handful of NIMBY minded citizens involved, or is it truly a larger sector of the public?
  2. As with the flawed 2005 SCOTUS Kelo decision which stretched public “use” to mean “benefit”, i.e. for economic development projects, full public use is not often the result of an eased property. The encumbered land is still largely under private ownership and control. Broadening the gray area between public and private property gives government more power and control over all property. To reduce tyranny, we should strive for policies which limit the volume of truly public use property, and leave private property as unencumbered as possible from regulations.
  3. Landowners with greater political leverage may pitch to have portions of their property attached to a conservation easement, not only for the short term Takings compensation, but also for the commonly used long term tax abatement benefit. Does politics play a greater role in what property is “protected” vs. true environmental status?
  4. Flipping the above argument around, a benevolent but weak political entity may nobly apply easement policies in the short run, only to have powerful developers from a higher level political subdivision take the property over for a low cost in the future. The author did expound on this point.
  5. Location, location, location. Conservation easements are often applied in regions where maximum building density makes more sense. Concern about adequate green space in suburban regions promotes these easement policies, which reduce density, then cause urban sprawl to spread out further, and as a result add to pollution by increasing commute times and therefore transportation energy use. The net environmental impact to the earth as a whole could often be negative.

Conservation Easements just do not fit well with a Libertarian approach to governance.

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