Understanding When Perpetual is Not Forever: An Update to the Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements, and Response to Ann Taylor Schwing

Abstract

Rarely in the legal discourse is an author afforded the opportunity to revisit and update a recently published law review article and correct misunderstandings of a response thereto. In the first instance of the Harvard Environmental Law Journal publishing two law review articles by the same author in back to back volumes, Jessica Jay in 2012 authors When Perpetual Is Not Forever: The Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements, which explores the area of law surrounding the amendment and termination of perpetual conservation easements, with specific focus on the existing legal framework, legal regimes, emerging statutory and common law, and states’ approaches to self-guidance. Now, Jay authors Understanding When Perpetual Is Not Forever: An Update to the Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements, and Response to Ann Taylor Schwing [The Challenge], which identifies next steps and options for perpetual easement modification and termination guidance, including revisions of the Treasury Regulations § 1.170A-14. The Challenge posits that providing clear, consistent guidance through existing or new legal frameworks ensures that perpetual conservation easements and the purposes they protect will endure over time. This Article informs about developments since the publication of The Challenge and corrects misunderstandings asserted in Ann Taylor Schwing’s article in the same issue of the Harvard Environmental Law Review.

Keywords: conservation easement, perpetual, forever, amendment, termination, taxes, state law, federal tax law, deduction, federalism, supremacy