Currently, Congress is considering scaling back on tax breaks for conservation easements. As habitat protection and open space have become larger environmental issues, conservation easements have gone way up in use. As with most government programs, the laws of unintended consequences have taken over, and many have found ways to get tax breaks some feel are undeserved. Nature Noted has a long series of posts on the debate.
I have mixed feelings on the change. To understand this, lets take a step back and look at government environmental policy. As I have written in the past, I think of government environmental legislation in 2 parts:
- Regulation of pollution and emissions that affect other people's property. These regulations are essential to the maintenance of a system of strong private property rights. Without them, we would all be in court every day suing each other for damage to our property or water or air on our land from neighboring lands. Of course, we can all argue about whether set limits are reasonable, and we do.
- Regulations of land use that effects only your own land. This is a relatively new area of environmental law, ushered in by the Endangered Species act and various wetlands regulations. These regulations say that even if your proposed land use doesn't create any emisions that affect anyone else, the government may still ban your land use for some other environmentally related goal (habitat, watershed, anti-sprawl, the list is endless).
These land-use laws constitute by far the most distressing area to me in environmental law. In the worst cases, these laws can result in what are effectively 100% takings of a person's land without any compensation. (Example: you buy a lot on the ocean for $500,000 to build a beach house. Before you can build it, new regulations are passed making it illegal for you to build a house on that land. Yes, you still own the land, but it is now worthless to you since you cannot use or develop it). Good article on this here (pdf) and a listing of Cato Institute articles on this topic here.
I have for a long time been a supporter of the Nature Conservancy and other land trusts (see Nature Noted site linked above for lots of links and info). These trusts works to reach the goals in #2 above but with private money instead of government regulation and takings.
Back to the issue of conservation easements. It is becoming clear to me that while deals made by the Nature Conservancy rely on private money, they also rely on government subsidy through conservation easement tax breaks. Their actions are not as private as I thought the were. And therefore my mixed feelings. I still think that their activities, even with the tax breaks, is more fair and probably much more efficient than the government takings approach.