Environmental Preservation and the Fifth Amendment: The Use and Limits of Conservation Easements by Regulatory Taking and Eminent Domain

30 Pages Posted: 31 Jan 2014

Date Written: January 29, 2014


Successful preservation of environmentally and historically significant property requires the utilization of various innovative land conservation strategies. The government has three alternative land conservation strategies, including (1) using the police power to issue environmental and land use regulations; (2) the use of the eminent domain power over environmentally sensitive lands; and (3) the use of conservation easement programs. The government’s use of its inherent police power to protect the health, safety, and welfare of its citizens extends to state and local governments the ability to use zoning and land-use regulations for environmental purposes. Typically, these regulations are used broadly as part of a comprehensive land use plan. The federal government has the power to make environmental laws based on its constitutional powers over commerce and treaty making. However, land use and environmental regulations are often politically difficult since such regulations interfere directly with a private landowners’ use of his or her property. Land use and environmental regulations also have the potential to rise to the level of a Fifth Amendment regulatory taking, requiring the payment of just compensation for the loss of property rights by the government to the property owner. Federal, state, and/or local governments may use eminent domain to acquire fee simple title to lands it seeks to preserve. However, the government’s use of the eminent domain power may be expensive relative to other alternatives, since just compensation for the land may be high and the eminent domain process may result in long and expensive litigation. Inadequate public funding for acquisitions and political unpopularity also may limit the use of eminent domain.

Conservation easements often represent a more politically palatable alternative for land preservation. Despite the inherent incentive problems associated with conservation easement donations, the use of easements as a land conservation method is increasing at an incredible rate - mostly due to the Federal and state tax benefits associated with the donation of conservation easements. Landowners are typically motivated to donate conservation easements by the landowners’ desire to forever preserve the character of the land and to receive tax breaks in the forms of state tax credits and/or federal deductions for “qualified conservation contributions”. While most currently created conservation easements are donated, many land trusts and governmental entities are also in the business of purchasing them. Conservation easements may also be created by the use of eminent domain, or by way of exaction. “Exacted” conservation easements generally arise where the government requires that a landowner donate a conservation easement in exchange for the government approving a permit or zoning variance application. While donations and sales of conservation easements are likely to avoid the requirement that the government pay the property holder just compensation, such compensation may need to be paid where the landowner brings an action for inverse condemnation following the creation of an exacted conservation easement.

The use of conservation easements can raise constitutional issues where the government seeks to create the easement by way of regulation or exaction. In this article, the author: (1) provides an overview of the different systems of land control; (2) analyzes the ability of a landowner to argue that a regulatory taking has occurred where government land use and/or environmental regulations have greatly diminished the property’s value; (3) specifically discusses the landowner’s ability to grant or sell a conservation easement as a potential source of value to the landowner that could negate the finding of a sufficient diminution in value necessary to be considered a compensable Fifth Amendment taking; (4) addresses the government’s ability to garner a conservation easement through the exercise of its powers of eminent domain; (5) discusses regulatory takings issues specific to conservation easements acquired by exaction and failed government attempts to acquire such conservation easements; and (6) discusses the question of whether the government may exercise its powers of eminent domain to condemn a pre-existing conservation easement held by another government entity.

Suggested Citation

Cantley, Beckett Gordon, Environmental Preservation and the Fifth Amendment: The Use and Limits of Conservation Easements by Regulatory Taking and Eminent Domain (January 29, 2014). Hastings West-Northwest Journal of Environmental Law & Policy, Vol. 20, No. 215, 2014. Available at SSRN: https://ssrn.com/abstract=2387923

Beckett Gordon Cantley (Contact Author)

Northeastern University ( email )

4471 Dean Martin Dr. #3708
Las Vegas, NV 89103
United States
702-881-4849 (Phone)

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