Editor’s note: Jon Margolis is VTDigger’s political columnist.
They are all honorable men.
Not with that wise-guy sarcasm Marc Anthony used describing Brutus and the boys, either. These are real honorable men, and though they have all but accused each other of being dishonorable in the last couple of weeks, they are basically allies.
Because, among other things, they are all liberal men. Liberal in their politics, especially when it comes to protecting the natural world. They are environmentalists.
Two of them – the two major antagonists – might even be called legends in the vital (if slightly arcane) field of conservation law. In Vermont, no one is more closely identified with land preservation than Darby Bradley, the highly regarded former head of the Vermont Land Trust. Before moving to Vermont and Vermont Law School in 2009, John Echeverria was executive director of Georgetown University’s Environmental Law & Policy Institute and general counsel for the National Audubon Society. In the world of environmental law, those are impressive credentials.
In their separate realms, the two men were pursuing the same goals – saving ecologically valuable fields and forests from being paved over. On most matters, they agree.
Not on S.119, “An Act Relating to Amending Perpetual Conservation Easements,” which easily passed the Senate last year and seemed likely to be approved by the House this year, in no small part because Bradley and the VLT, now headed by Gil Livingston, were squarely behind it. In Vermont, their support is akin to a political Good Housekeeping Seal of Approval.
Or was until Echeverria and his allies entered the fray. In columns and news coverage on this website and in a story on Vermont Public Radio, they argued that even if land were donated under easement terms guaranteeing that it be preserved “in perpetuity,” S.119 “would allow a land trust and a future owner … to lift the restrictions…and sell the property.” The “conserved” land, they said, would then “be open to development,” even where the whole purpose of the conservation easement was to protect the land from development.
This being essentially a family feud (and – worse – between lawyers) the back and forth got both testy and convoluted, with each side accusing the other of trying to mislead and misinform and rarefied disagreements about the precise meaning of this phrase, or the relevance of similar laws in other states.
Until Friday, when Livingston and Bradley surrendered.
“The current bill is too broad, so we are working on changes that would greatly reduce its scope,” Livingston said. On Monday he said it was too early to decide whether the Land Trust and its allies would try to get a revised version of the bill passed this year. He said the several organizations who supported the bill would make that decision “in another week or two.”
Livingston never fully explained why VLT was withdrawing its support, but he didn’t have to. The Land Trust seems to have been blindsided by something new in American politics: website comments.
It’s by way of being the new town square, as scores or sometimes hundreds of readers first respond to news or opinion articles on the website, and then respond to each other – sometimes agreeing, sometimes debating (and, it should be added, sometimes knowing what they are talking about, and sometimes not).
In this case, several commenters declared that if the bill passed they would not donate easements on their land to Vermont Land Trust.
How many of them intended to donate land to begin with, or how much land they had to donate, remained unclear. The message to the Land Trust was not.
Amid the tumult, it was discovered that more than a year ago the Vermont Housing and Conservation Board adopted an interim policy claiming for itself much the same authority that S.119 would give to private land trusts – to approve “major amendments” to easements after a public hearing process and if the amendment “serves the public conservation interest,” or if denying it would “result in significant financial burdens to the easement holder or landowner and result in minimal conservation benefit to the public.”
That’s quite a broad standard. But Gus Seelig, the executive director of the board, said almost all its easements have been purchased, not donated, and any amendment would require the approval of the land-owner as well as the easement holder. If an easement was not donated, amending it would not fall afoul of the Internal Revenue Service’s rule that the value of a donation is not deductible unless the easement is “in perpetuity.”
Like the board’s interim policy, S.119 would require a public comment process and allow major amendments to easements only if those amendments were in the public interest.
That’s exactly what alarms some critics. They point out that the advantage of the present system is precisely that it is controlled by private choices, not the public interest. Conservation is mostly a government project; government at some level either buys land (sometimes using eminent domain) or passes laws restricting how the land may be used.
This works, but it also arouses opposition to “the heavy hand of government.” In conservation easements, though, individual landowners make their own private decisions to preserve their land, usually donating or selling development rights to a private land trust. Law (meaning government) enables this and sets some broad parameters on the process, but neither requires it nor interferes with how it works. The public interest is served –easements have preserved hundreds of thousands of acres in Vermont – using the light hand of government.
Bradley acknowledged that S.119 would tilt the balance from the private to the public realms. Under the bill, when all the public hearings and comments are done, the politically appointed Vermont Natural Resources Board (or sometimes a court) would make the final decision.
But he said, “given the fact that the public has spent millions of dollars conserving land through direct appropriations … and tax deductions, there is an advantage to giving the public an opportunity to comment on significant amendments.”
Yes, a public body would have the ultimate authority, but in Vermont, he said, this authority has never been “misused.”
It has not. But politics is cyclical. Right now, the authorities – Gov. Peter Shumlin, Attorney General Bill Sorrell, the legislative leaders – are all pro-environmental Democrats. That may not always be the case. Unlikely as it may seem for the foreseeable future, it is not impossible that in another decade or two Vermont could be governed by people with quite a different point of view.
In that case, selling a thousand acres of “protected” forest land to a developer – the proceeds, of course, to be used to purchase other, comparably valuable open land because the transaction had been deemed (by the not-so-environmentalist new majority) to be in “the public interest” – could become routine.
Even if long-dead landowners had donated the easement thinking they were preserving their land “in perpetuity.”
Bradley said that can happen now. It can. Nothing is really “in perpetuity.” But it can happen now only with the approval of a court, and judges tend to base their decisions on statute. Absent a statute permitting such amendments, courts are likely to approve them very rarely. Not never. Nothing is ever never. But close to it.
In supporting S.119, the Land Trust and the Nature Conservancy are clearly supporting a measure which would make their organizations more powerful. It would give them more leeway.
A naked power grab? Probably not. These are, remember, honorable men. Enlightened men (and a few women), too. They are not in it for the money. They are convinced that they would use their enhanced power responsibly, and there is no reason to doubt their sincerity.
But history shows that giving more power to honorable and enlightened men (and a few women) can be a step on the road to disaster.