• GuyG

Should Conservation Easements be “Perpetual”?

Conservation easements are not required to be "perpetual", but should they be?


Conservation easements – a critical land securement tool used in private land conservation – are generally set in place “in perpetuity”, but not always, and there is no legal requirement to do so.

To learn more about what conservation easements are, go here

This flexibility has generated tremendous debate over whether conservation easements (CEs) should beperpetual. This debate is as complex as it is important (i.e., very, on both accounts).


For an unbiased assessment of this issue … you need to go somewhere else. But here are my thoughts.


Perspectives on ‘Perpetual’


Like most debates, your view depends on how you come at the question. I would suggest the most common lenses here are: legal, ecological, planning, financial, and programmatic.


Legal


This should not be confused with “a lawyer’s perception” (NB – I’m not a lawyer); this would refer to anyone who does or must view CEs first and foremost as a legal construct.


In general, ‘perpetual’ in legal circles makes people nervous. This is a system based on knowing “beyond a shadow of a doubt.” ‘Perpetual’ exists in the murky future of ‘I don’t know’ – not a happy place for legal minds.


It is also a system of “time is of the essence” (meaning people are required to do things on a timeline), so the lack of firm timestamps throws all the other carefully crafted clauses into turmoil.


In other words, this sort of legalistic view on perpetual and long-term and time in general tends to be whatever you want it to be, just so long as you state it in a legal document.


But it is important to note that ‘perpetual’ can be a legal catch-all just meaning there is no stated end point in an agreement. That doesn’t mean “forever and ever” – it can all be terminated – it just means the legal agreement will not create that circumstance of ending things.


Ecological


On the extreme opposite end of the spectrum is the ecological lens.


This is a perspective (and a community) that thinks in evolutionary time scales, and whose fundamental tool (the scientific process) is established to disprove or fail to disprove, but never to prove. Being comfortable with uncertainty is their job description.


For them, managing for ‘perpetual’ means conserving both the pieces of an ecological system, as well as the nature of that system – i.e., its ability to change, to adapt, to produce, to surprise, to confound.


More importantly, that means the opposite of the legalistic perspective: as proposed time frames shorten, the ecological perspective gets more nervous. The desired outcomes often can’t even be measured, let alone assured, in decadal time periods.


Planning


In the conservation easement debate, the planning arguments against perpetuity are generally around how we “don’t know what will happen in the future” and this will “prematurely limit options”.


There is an unrecognized irony in much of the discussion around long-term planning in general. It is a common complaint that plans and maps and policies can all conspire to remove people’s future freedom of choices.


However, that’s all planning is – an effort to look at the vast array of possibilities, and the associated vast array of possible upsides and downsides, and consciously choose a path. It’s an effort to narrow the choices, so actual decisions can be made, decisions that will – ideally – maximize positive outcomes and minimize negative outcomes.


While some long-term planning interests are genuinely concerned about this dilemma (loss of options), many people simply use ‘planning’ concerns to cloak ‘financial’ concerns.


Financial


One time while presenting on CEs to a general audience, I was asked by one audience member – repeatedly – to explain why someone would do this. He was not belligerent or rude, just vastly confused.


He asked, “Explain to me why a person would voluntarily devalue their most valuable asset.”


Many of the views on ‘perpetual’ conservation easements emerge from this very logical, financial standpoint. The opportunity cost becomes (presumably) greater the longer you are “tied down;” so perpetual = a lot of forgone opportunity.


Programmatic


When an individual seeks out a conservation opportunity, there seems to be less discussion of the downsides of perpetuity. The vast majority of this discourse seems to take place when designing ‘programs’ – i.e., plans to have multiple CEs with as-yet unknown people.


In this case, it becomes a question of probabilities, with the (largely untested) assumption that more people will buy in if the restrictions are looser.


This is where we tend to get proposals of “well, maybe 25 years is enough” or “if they manage that way for 10 years, they’ll likely keep doing it.”


So …. ?


Okay, so there are multiple perspectives here. But what does that mean practically? Should conservation easements be perpetual or not?


I think the answer lies in these principles.


Focus on Purpose Not Program


Base your choice regarding a conservation easement’s time frame on the purpose of the CE, not the ancillary metrics.


It becomes very tempting to measure the overall success of CEs by the easy-to-count facets: number of transactions, increased revenue streams for landowners, new acres, etc. While these are important considerations, this leads to promoting the metric over the goal.


For example, are you suggesting CEs not be perpetual because ‘conservation’ will improve or because ‘transaction numbers’ will increase?


Beware Conservation Speculation


Beware of what could be considered ‘conservation speculation.’


There is a tendency to suggest that it is very pragmatic to keep options open in case things change in the future. That is a very practical financial principle, but perhaps not universally applicable.


‘Conservation’ as a concept is not amenable to installing an on/off switch, to be chosen at convenience. Conservation is actually supposed to be about limiting choices in an effort to ensure valued elements of the ecosystem are not threatened. It is antithetical to structure a “conservation” agreement around that possibility that in the future you might find it personally advantageous to destroy an ecological system.


Other serious contracts are similar. No one expects marriages to be guaranteed, but we also don’t expect vows to end with “For 10 years, with the potential for renewal, subject to whether something better comes along.”


Don’t Bend the Tool to Fit the Job


If you sharpen a hammer, it will cut a board, but does that mean it is a good use of that tool? Probably not.


Conservation practice consists of numerous organization types, protective mechanisms, tools, personalities, and approaches. Rather than trying to re-work CEs to serve other short-term objectives, be ready to choose a different tool.


For example, short-term management agreements have existed for numerous years. The landowner is not subjected to a “conservation” imperative, simply a set of practices that could improve the situation in the short term.


Ensure Fit to Purpose


My final word here …


I believe a conservation easement should be in place for as long as you want something conserved. Perhaps you want clean water, clean air, carbon sequestration, and wildlife habitat for only 10 or 25 years.


But if you want those in perpetuity, likely your tool should reflect that.