Volume 101 - Issue 6 Georgetown Law Journal

Incentivizing Conservation: Restructuring the Tax-Preferred Easement Acceptance Process to Maximize Overall Conservation Value

The rapid development of private land in the United States has prompted a corresponding increase in the use of conservation easements as a vital element of U.S. land preservation and conservation policy. The federal government incentivizes these easements through an income-tax deduction for donations of qualifying easements to nonprofit land trusts. There are many advantages to the current structure of the tax incentive: it allows for local control of easement decisions, minimizes certain administrative costs of the program, and does not subject conservationists to reliance on the annual congressional appropriations process for easement funding. Despite these benefits, the tax deduction fails to properly incentivize conservation in some important ways. The nature of easements as partial interests in property makes valuation difficult, often resulting in an allocation of tax benefits based on lost economic development potential rather than on conservation value. Donee organizations often lack sufficient resources to enforce their easements in perpetuity, and claimed deductions are not always effectively monitored. To preserve the benefits of the current incentive structure while mitigating the primary concerns associated with the deduction, this Note proposes imposing a variable annual cap on the value of easements that may be accepted by individual donee land trusts. Structured like a financial capitalization requirement, this annual cap would increase in proportion to a land trust’s financial capacity to enforce its easements, thereby addressing each of the primary drawbacks associated with the current deduction while still retaining its crucial role as a primary federal incentive for land conservation.

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