Carbon, Climate, and Conservation Easements

The reality of climate change brought on by increasing levels of greenhouse gases in the atmosphere presents challenges to conservation practitioners. This guide examines how conservation easements may be better planned to deliver good conservation outcomes even as a changing climate affects the physical conditions on the land. The guide also reviews opportunities to boost carbon sequestration on lands under easement. WeConservePA guide. 12 pages.

This document offers guidance to land trust practitioners on drafting conservation easement granting documents to (1) allow the development of carbon offset projects; and (2) convey or clarify the ownership of the carbon offsets generated by such a project. 38 pages.

The possibility of granting carbon rights to the easement holder may be considered during the development of a conservation easement. This presents substantial complexity that can be avoided by instead giving the holder control over the entity that may receive carbon credits or assigning to the holder some or all of the proceeds of sale of carbon credits. WeConservePA guide. 3 pages.

In light of the changes global warming will bring, this article creates a case for the argument that upon any easement termination, it is the holder of a conservation easement that is entitled to the appreciated value of the development rights held in abeyance by a conservation easement. It addresses conservation easement provisions that would calculate and direct such appreciated value to the easement holder and that would also prevent the landowner from receiving an unwarranted windfall. Finally, it discuss a new type of conservation easement, an “ark” easement, which is intended to assist species and ecosystems in global warming caused migrations by being terminable at the easement holder’s option.

This article makes two recommendations regarding the drafting of conservation easements in the age of global warming. The first recommendation relates to drafting language that will ensure perpetuity in conservation easements where the eased land has been adversely affected by global warming. The second recommendation relates to drafting conservation easement language that addresses “latent ancillary rights” in the eased land that pertain to global warming, for example the carbon sequestration process in forested land.

Analysis of projects generating 80% of total offset credits issued by ARB under its U.S. Forest projects offset protocol shows that 82% of the credits generated by these projects likely do not represent true emissions reductions, due to the protocol’s leakage accounting methods. The total quantity of over-crediting across these 36 projects equals approximately 80 million tons of CO2. For context, the U.S. Forest Protocol has generated 80% of the offset credits in California’s cap-and- trade program; the estimated over-crediting is equal to one third of the total expected effect of California’s cap-and-trade program on emissions during 2021-2030.

A number of carbon offset programs are problematic. Nevertheless, it is sensible to ensure that newly drafted grants of conservation easement clearly permit offset projects (whether or not such projects ever materialize). WeConservePA guide. 6 pages.