- - Thursday, November 21, 2019

Even the best-intended government policies can sometimes cause unintended consequences. When the government protected the spotted owl as an endangered species, for example, it became illegal to work the land this owl called home. So when farmers saw spotted owls on their land, they shot them. Measures to save the spotted owl also jeopardized the barred owl and triggered forest fires in the Northwest. 

Not exactly the ideal model for environmental policy. 

The goal of government should be a policy with as few unintended consequences as possible, or none at all. And one example of government getting it right is a little-known incentive meant to promote private land conservation while combining responsible environmental stewardship with responsible fiscal conservatism. The incentive, tax benefits for placing a conservation easement on private land and donating that land to a nonprofit, just needs a little bit of updating by Congress to keep the IRS from destroying it.


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Passed with bipartisan support in 1980, conservation easements provide a tax break to landowners who donate environmentally sensitive land to a qualified trust. If property owners abstain from developing said land, they get to deduct the potential value of the land if it were developed from their income. Just like a charitable donation, but with property. 

Conservation easements protect more than 27 million acres. Members of both parties agree this program has preserved islands of untouched land in quickly developing areas and conservation groups have welcomed conservation easements as a critical tool. 



But the IRS, which views easements as it does any tax deduction — as a barrier to collecting more money from the American people — has been protesting them for years. 

Granted, there do seem to be very rare cases of abuse. Some landowners apparently play fast and loose with the rules in determining the potential value of their property. It’s certainly appropriate to crack down on such practices. 

But in its attempt to root out the few bad actors, the IRS is threatening to wipe out a program that has done a great deal of good.

It’s the latest move for an agency that has been accused of unfairly targeting private citizens. Moreover, the IRS has a dismal track record in court cases in which it has challenged valuations. Unsuccessful cases against taxpayers waste resources the IRS could spend in better areas to promote compliance. The agency’s questionable practice of targeting private taxpayers potentially also foments hostility between citizens and the government, particularly if this results in high-profile legal battles. 

The answer to this isn’t in the executive nor the judicial branch, but in the legislative. Congress needs to revisit the original 1980 legislation and update the law for 2019. Congress must remove the regulatory uncertainty surrounding conservation easements with appraisal standards and clearer guidance, so donors have clearer guard rails and the IRS has clearer targets for bad actors. That would be a win for both parties, with Democrats able to claim an important environmental victory and Republicans adding another tax reform to their list of Trump-era accomplishments. 

Well-meaning philanthropists shouldn’t be targeted because of limited instances of abuse; they certainly shouldn’t be scared away from participating in what’s otherwise a very beneficial program. 

A modernized conservation easement law would preclude abuses, generate tax savings, save IRS resources and benefit the environment. The logic here is easy to see — even for those of us not as wise as a spotted owl. 

• Jared Whitley has worked in the White House, the U.S. Senate and the defense industry.

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