This Land is Their Land
When the billionaire John Malone became the country’s largest private landowner in 2011 with the purchase of nearly a million acres of forest in Maine and New Hampshire, it sparked a great deal of curiosity in the press. Why, reporters wanted to know, did a then-seventy-year-old media tycoon want to own 2.2 million acres of land—an area roughly half the size of Lake Ontario?
Malone has offered a variety of mundane reasons over the years, including his Irish heritage, his wife’s horseback riding hobby, and the joy he takes in being “out in the open.” The most creative among them, though, came during a CNBC interview, when he described his decades-long land binge as a kind of affliction, a “virus” passed on to him by his friend, CNN founder Ted Turner—a fellow billionaire who, after Malone’s 2011 purchase, became merely the second-largest land baron in the country.
If a lust for land among the billionaire class is a virus, it has become something of an epidemic recently. In 2007, the nation’s hundred largest private landowning families owned a combined 27 million acres of land—an area, as the Washington Post reported, the size of Maine and New Hampshire combined. By 2017, they’d increased their haul by nearly 50 percent to encompass an area equivalent to all of New England minus Vermont. In the pages of The Land Report—a magazine that covers land ownership—wealthy readers can browse new potential additions to their territory: a mountain range for $60 million, a collection of watersheds and creeks for $68 million, a “combination of landscapes” for $96 million.
Today, to a great and growing extent, this country belongs to the readership of The Land Report. In 2016, according to one economist, the wealthiest 10 percent of American households owned 82 percent of all non-home real estate; 40 percent of that belonged to the top 1 percent of households alone. Now, amid accelerating ecological breakdown, the fate of life on this planet depends in part on what they’ll decide to do with their spoils.
In May, the Biden administration announced its “America the Beautiful” initiative, a plan to conserve 30 percent of U.S. land and waters by 2030—a goal conservationists describe as the bare minimum required to slow the climate and extinction crises. (More than fifty other countries have similarly pledged to conserve 30 percent of their land and waters by 2030.) Today, 26 percent of U.S. ocean waters are already protected, and adding an additional 4 percent is conceivably within reach. But on land, the challenge is far greater: only 12 percent of American lands are protected, and reaching the 30 percent goal requires conserving an area more than twice the size of Texas.
To reach that goal, professors Arthur Middleton and Justin Brashares explained late last year, the fastest course of action would be for Biden to use his executive powers to increase the protection of federal lands by designating new national monuments and banning extractive industry on them. The problem, however, is that most of the country’s biodiversity and capacity for storing carbon are not on federal lands. About two-thirds of species on the Endangered Species List live primarily on private land. More than half of the country’s forests are privately owned. And crucially, wildlife depends on the private lands that connect public lands. We can’t meaningfully fulfill America the Beautiful’s mission without them.
How, then, to ensure that those lands contribute to the nation’s conservation goals? While the Biden administration has not offered many specifics, it is clearly inclined to leave private landowners largely to their own devices. One of the eight principles of the America the Beautiful program, outlined in a twenty-four-page government document, articulates the administration’s intention to “honor private property rights and support the voluntary stewardship efforts of private landowners and fishers.” Providing incentives for conservation practices, the report claims, “rewards ranchers and farmers for being good stewards of working lands, waters, and wildlife habitat.”
Most of the country’s biodiversity and capacity for storing carbon are not on federal lands.
That stance has many activists and legal scholars nervous. To date, the primary incentive that the federal government and many state governments have offered to private landowners has been the purchase of conservation easements—legal agreements in which individuals contribute their property’s “development value” in perpetuity to a land trust or government agency. Each easement is different, but the agreements often include limitations on the number of parcel divisions on the land, controls on the number and size of new roads and buildings, and a commitment to practice certain agricultural or forest management methods that promote healthy soil and wildlife. While the litany of restrictions can seem lengthy at first glance, the properties nonetheless remain in the hands of their owners, who retain significant leeway to do with them as they like. As the journalist Yasha Levine described it: “It’s sorta like donating a Picasso to a museum, but keeping the painting hanging on a wall in your own house.” In return for the donation, landowners receive generous tax deductions. This arrangement, some have argued, may be “the most emblematic part of how America’s tax system favors the ultra-rich.”
While the term “conservation easement” wasn’t coined until the 1950s, the type of agreement it describes was implemented at least as early as the 1930s and 1940s, when the National Park Service began purchasing development rights to protect scenic vistas along the Blue Ridge Parkway and the Natchez Trace Parkway. But the use of easements remained relatively marginal until 1980, when the IRS made deductions for conservation easements a permanent part of the Internal Revenue Code. These days, according to the National Conservation Easement Database (NCED), there are about 40 million acres of conservation easement lands in the United States. Easements cost taxpayers billions of dollars in foregone revenue, an amount approximating the annual budget of the National Park Service each year—and that money benefits an incredibly small segment of the population. In 2014, for instance, just 3,249 wealthy taxpayers claimed $3.2 billion in charitable deductions for conservation easements. In Virginia alone, the state has spent $1.8 billion on land conservation in the last two decades—and almost all of it went toward tax credits for “high earning individuals and corporations” owning private land, according to a state agency review.
It could get worse. According to a paper by K. King Burnett, John D. Leshy, and Nancy A. McLaughlin published in the Harvard Environmental Law Review, easements are likely to play “an important role” in the America the Beautiful program’s implementation. In other words, to prevent ecological collapse, we might have to pay an even higher ransom to the country’s wealthiest people.
John Malone loves the land, but as an avowed libertarian, he arguably loves avoiding taxes even more. In 2013, Malone dodged $200 million in taxes by moving the address of his telecommunications company, Liberty Global, to London in a so-called “corporate inversion.” Much to Malone’s chagrin, President Obama fought for years to deter the practice. But Malone has other ways to escape the clutches of the IRS and the negative publicity associated with other tax loopholes. By donating conservation easements, which he’s done for decades, John Malone has found a way to skirt taxes—which, in his view, are a “leakage of economic value”—in a way that actually enhances his image in the public eye. Easements have, in fact, made Malone something of an environmental hero, the kind of person bestowed conservation awards, asked to speak at conservation conferences, and invited to serve on the board of The Nature Conservancy. It’s an impressive trick for someone who has also served on the board of directors of the Cato Institute, a think tank that fought for years to deny climate science and promote polluting industries.
Malone isn’t the only ultra-rich individual to practice this self-serving form of environmentalism, or what the author Justin Farrell calls “connoisseur conservation”—a set of behaviors ostensibly good for nature that in fact serves as a cover for personal enrichment and “gilded consumption.” In many cases, billionaires use conservation easements to enhance the property value of their own private residences. In 1997, for instance, New York hedge fund billionaire Louis Bacon donated a conservation easement on his private island in the Hamptons—complete with two large homes and a tennis court—to the Nature Conservancy, making it, technically, a protected wilderness area. In 2015, Alibaba co-founder Jack Ma paid $23 million for a 28,100-acre property, which was already under a conservation easement in upstate New York, “principally for conservation purposes,” but which he also plans to use as “an occasional personal retreat.” Donald Trump claimed a $5.7 million tax deduction on his Mar-a-Lago estate in Florida through the use of a conservation easement.
While some conservationists make the case that the purchase of conservation easements presents taxpayers a relatively cheap alternative to operating publicly owned wilderness areas, there’s ample reason to believe that this taxpayer investment isn’t remotely paying off. The NCED doesn’t even know where millions of acres of easement lands are located. Among the known easements in the NCED database, meanwhile, information about how they are being protected is not publicly available or vaguely defined, and the majority have “restricted,” “closed,” or “unknown” access which means that people can’t even visit the lands they’re paying to protect. Many easements—including those placed on golf courses or “grassy areas between housing in real estate developments”—provide “little or no public conservation benefits.” Others, like those protecting Malone’s Western cattle ranches, remain open to unsustainable industries. (“I’m not an extreme tree-hugger,” Malone has said.)
Billionaires use conservation easements to enhance the property value of their own private residences.
Easements have also proven to be drivers of extreme inequality. Teton County, Wyoming, for instance, is today a jumble of easements donated by the county’s ultra-rich 1 percent, which makes an average of $28.2 million annually, mostly from investments. The resulting scarcity of developable land drives housing prices there through the roof, meaning that many workers in the county’s robust service and tourism industry—who make an average of $41,052 annually— can’t afford to live there. Instead, as Farrell describes in his book, Billionaire Wilderness, workers take shifts sleeping in trailers or drive to work across state lines from their homes in Idaho.
Perfectly legal easements are sketchy in their own right. But in many cases, easements have been a vehicle for outright fraud due to exaggerated conservation easement appraisals and donations placed on undevelopable land. The federal government has long been aware of these problems. Investigations in 2003 and 2004 in the Washington Post led to congressional hearings and some limited reform as part of the Pension Protection Act of 2006, but the problems have persisted. In 2017, ProPublica investigated the rising popularity of “syndicated conservation easements”— that is, easement deals organized by middlemen, which promise big payoffs for participating investors, many of whom never visit the land in question. The IRS, Justice Department, and Congress have all since tried to crack down on the syndicated deduction, but those efforts have so far had “minimal impact.”
According to the Harvard Environmental Law Review writers, “Simply accelerating the pace of conservation easement donations is not enough” to ensure the “durable” conservation outcomes the America the Beautiful plan hopes to achieve. Instead, they argue, “better conservation easements need to be built.” Among other reforms, they suggest limiting easements to lands that have “demonstrable conservation values,” ensuring that easements are accurately valued, and making sure that easements are held “only by entities that have the capacity and obligation to monitor and enforce compliance with their conditions.” Other scholars have proposed ending the creation of “perpetual” easements, which would allow the agreements to be more responsive to changes in ecology and society.
Such reforms, however, wouldn’t address the root problem of modern conservation, a system largely controlled by upper class elites and designed to advance the interests of capital. “Simply continuing to give huge tax breaks to a largely White landowning class . . . is not a twenty-first-century land conservation policy, and it’s certainly not equitable,” said Matthew Strickler, the former Virginia secretary of natural resources.
Historically, of course, conservation has never been equitable, and has always primarily existed to promote capital accumulation. In seventeenth- and eighteenth-century Britain, the enclosure movement forced rural people off the lands they depended upon in the interest of “preservation,” while simultaneously contributing to the labor reserves needed to power the rise of industrial capitalism. In this country, nineteenth-century conservation was a project of settler-colonial capitalists, one that involved the violent removal of indigenous Americans from their lands.
This capitalist model of conservation, while wildly successful at increasing individual fortunes, has proven to be a colossal ecological failure. To have any hope of changing that, a new, evolved form of conservation must break with its racist, exploitative roots. Scholars Bram Büscher and Robert Fletcher propose such a model in “convivial conservation,” which would build “resistance to the power of capitalism” by creating a movement to challenge the environmental damage caused by upper class elites and address conservation’s violent history through reparations to dispossessed peoples. Their model also calls for radical ecological democracy, in which the value and fate of lands are determined locally.
Achieving such a vision starts with a recognition that the lords of modern conservation are no friends of the Earth and, ultimately, requires relieving them of their dominion over vast swathes of the planet. If this is a cure to the virus of billionaire land lust, the ultra-rich surely don’t want it—and Biden’s America the Beautiful initiative isn’t prescribing it. But for the good of us all, it must be administered.