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Conservation Options: Conservation Easements, Flexibility, and the “In Perpetuity” Requirement of IRC § 170(h)

Posted by on Thursday, October 20, 2022 in Notes, Volume 75, Volume 75, Number 5.

Molly Teague | 75 Vand. L. Rev. 1573

Conservation easements have been closely tied to tax incentives since the 1970s, when Congress passed legislation to encourage land preservation. In an attempt to balance the desire to conserve more land with the desire to prevent tax abuses, Congress later passed § 170(h) of the Internal Revenue Code, which requires that conservation easements be donated “in perpetuity” to be eligible for the federal tax deduction.

As climate change increases global temperatures, shifts migratory patterns, and causes sea levels to rise, conservation easements’ ability to adapt to changing circumstances must also become part of Congress’s balancing equation. This Note evaluates the “in perpetuity” requirement and proposed alternatives as avenues for promoting the preservation of land for conservation purposes in light of climate change. Ultimately, this Note argues that by extending the Internal Revenue Code to provide a tax deduction for donors who gift an option to purchase a conservation easement coterminous with a fixed-term conservation easement, Congress can promote meaningful land conservation in the face of a rapidly changing world.

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Molly Teague