This study was supported by the Center for Urban Development and Land Policy at Peking University-Lincoln Institute.

Protecting easements

Definition and essential characteristics

From a legal perspective, the essence of an easement is the legal relationship between two plots of land, a rights arrangement for using another's land to improve land utilization efficiency. The right of easement is a relatively special type of usufructuary right and falls within the scope of civil rights. Compared to usufructuary rights and superficies rights, easements have certain subordination, meaning they are attached to the required easement. Moreover, even if it serves the public interest, it is still regarded as a form of private right. Therefore, the logical starting point of the easement system is the protection of private rights. Protective easements are subordinate rights to easements and provide a legal path for natural resource conservation. Protective easements are based on the division of property rights bundles, imposing restrictions on the behavior of landowners through contracts and agreements, transferring certain specific rights of the rights holder (mainly development rights) from the rights bundle to the government or non-profit social organizations, while retaining rights such as property use that comply with easement contracts, thereby realizing public interests. Its precise terms can be seen as a designed subsidiary relationship, an agreement between adjacent lands. From another perspective, conservation easements are a type of bundling right that shifts land use from the current protective agricultural and forestry use to more intensive use. From this perspective, protective easements to some extent deprive the right to develop. The rationality and legitimacy of conservation easements are based on their original intention to better safeguard natural resources and ecosystems. They are not only a typical economic incentive but also an important ecological compensation measure.

Unlike traditional easements, the protected easement system has the following special features: (1) It adopts a donation or paid contract, and most are permanent easements, meaning the right holder cannot arbitrarily renounce or transfer the protected easement. The duration of rights depends on public interest needs; unless an executive order is revoked, the rights relationship will continue (traditional easements allow waiver or assignment). (2) Ecological development of property rights. The system of conservation easements fundamentally uses property rights to address ecological and environmental issues. It includes both property rights and environmental rights, requiring both property law and compliance with relevant laws and regulations for ecological and environmental protection. (3) The supply and demand of the protected easement is not specific. Unlike traditional easements, where the requirements for service and demand land are very clear, the service and demand areas do not necessarily have to be adjacent; the supply land only needs to be ecologically related to the demand land, and there are no additional requirements for the required land. In other words, in most cases, people with serviced land do not need to actually own a piece of land designated as serviced land. (4) Public interest is the core basis and most important feature of the establishment of a protected easement, rather than simply meeting convenience among rights holders. It is precisely because of these characteristics that the conservation easement system is widely applied and highly regarded in countries such as the United States and Canada.

The U.S. conservation easement system

The Conservation easement system was first adopted by the U.S. National Park Service in the 1930s and 1940s to protect landscape resources, later introduced by American journalists

William White officially proposed it in the 1950s. In 1965, Congress enacted the Federal Highway Beautification Act, requiring that 3% of the funds allocated by the federal government to states for road construction be used for landscaping or improvement. States subsequently adopted easements to maintain the landscape along the highway. Subsequently, several states enacted laws related to easements, such as New York, Maine, and Maryland, which introduced protective easement legal norms, prompting the U.S. federal government to enact the Uniform Conservation Easement Act (UCEA) in 1981. This law clarifies the definition of a conservation easement: a conservation easement is a non-possessive right that imposes restrictions or positive obligations on the real estate to preserve the natural, landscape, or open space value of the property, protect its agricultural, forestry, recreational, or open space functions, protect natural resources, maintain and improve air and water quality levels, and preserve the property's natural, historical, architectural, archaeological, and cultural value. The purpose of this Act is to restrict or require the preservation or protection of the value of natural, scenic or open spaces in real estate. The Act also provides principled guidance on the holders, establishment, transfer, and enforcement of easements, laying the legal foundation for protecting easements, removing legal barriers (including issues related to easement assignment and inconsistent regulations among states), and promoting the wider promotion and application of conservation easements across states. In the United States, the development of land trusts has greatly promoted the application of conservation easements.

A typical conservation easement agreement is usually based on an understanding of property rights, specifying the respective parties' respective rights, responsibilities, and interests, specifying relevant legislative requirements, and specifying arbitration clauses, cost allocation, termination, and assignment. Among these, a core message in the conservation easement contract is to ensure the realization of public interests through proper management, such as providing public entertainment, scenic resources, or wildlife habitats.

Generally speaking, the implementation of a protected easement includes the following steps:

(1) Review and registration. A few states require public review of protected easements, primarily to examine whether they adequately protect the public interest. For example, Massachusetts has clarified that establishing a protected easement requires formal approval procedures and requires both parties to provide public and transparent statements. Considering that protected easements are privately owned, most states do not require mandatory review but require reporting to the state government. For example, when New York State requires the enforcement of an easement, a copy of the entitlement file must be submitted to the local environmental department. In terms of registration, Maine has been relatively successful, having established a mature and electronic easement registration system. Registration information includes easement records, holder information, land location and area, and more, improving registration efficiency.

(2) Verify the protection targets. Conservation easements must meet at least one of the following objectives: (1) Protection of the public; (2) Protecting habitats for fish, wildlife, plants, or similar ecosystems; (3) Protect open spaces (such as farmland and woodland); (4) Protecting land with historical value, etc. The main purpose of verifying these is to prevent economic incentives under the guise of protection.

(3) Determine the conditions for permanent or variable changes. Generally speaking, a protected easement needs to be established permanently, but in real life, the situation is more complex and may affect the implementation timeframe. Therefore, it is necessary to set corresponding conditions for change, such as when an endangered species is protected or completely extinct and no longer needs protection, or when land use or economic development models change. It should be added that when land with an easement is inherited as an estate, heirs must continue to bear the obligation to protect the land.

(4) Assess the value of protected easements. The most important concern for both parties is the value of the protected easement. Typically, qualified professional appraisers conduct assessments using the "Before and After Comparison Method" in accordance with the "Unified Standards for Professional Evaluation Practice." That is, the value of an easement is the difference between the market value of the land before and after the protection easement is set; the added value is used by the easement holder for public interest.

(5) Monitoring, enforcement, and remedies. Enforcement of conservation easements relies on scientific and regular monitoring. The frequency and method of monitoring depend on the area, type, surrounding activity level, and monitoring funding. Violations will be recorded and the corresponding judicial procedures will be carried out according to the protection agreement. The 2000 U.S. Restatement Third, Property (Servitudes) states that in such cases, remedies (such as reconsideration, litigation, retrial, etc.) can be initiated to prevent landowners from violating the lease or to be enforced by a third party.

Currently, the United States has established 167721 protected easements, covering about 112282 square kilometers. Holding entities include NGOs, state governments, federal governments, local governments, and other institutions, accounting for 42.74%, 22.53%, 21.51%, 5.80%, and 7.42% respectively (see Figure 1).

Figure 1: Proportion of Area Held by Different Entities in the United States

Land trusts play an indispensable role in promoting the protection easement system. In the 1950s, the number of protected easements in the United States was only about 50, but between 1998 and 2003, the area of protected easements exploded, increasing from 1,213 to 1,526, and the area managed by protected easements expanded from 1.4 million acres to over 5 million acres. Land trusts are a specific type of non-profit organization (NGO) whose main business is to achieve land protection objectives by purchasing or managing private land or regulating conservation easements on private land. Land trust practitioners are mainly composed of professional conservation professionals and conservation easement lawyers, whose task is to supervise and manage the enforcement of nature reserve easements. If violations of the protected easement are found, the land trust will seek legal intervention as the plaintiff. Among them, The Nature Conservancy (TNC) is the largest land trust in the United States, holding 2,500 conservation easements covering a total area of about 12,000 square kilometers. The land it protects covers various states in the U.S., focusing mainly on forests, wetlands, coastlines, grasslands, catchments/water supply areas, scenic areas, wildlife habitats, farms and ranches, historic districts and buildings, and other areas requiring restoration and protection.

2.2 Overall Evaluation

The protection easement system is a compromise and trade-off that does not change the nature or ownership of the land. It can address the high cost of land acquisition and the reluctance of landowners to sell all their property rights, prevent excessive economic interests, and safeguard public demand for a better ecological environment.

The conservation easement system is generally considered effective in the United States, especially in addressing environmental violations, ecosystem protection, and promoting sustainable development. This system helps internalize ecological environment externalities from a property rights perspective, clarifies the economic value of ecological environment resources, and to some extent can avoid issues such as unclear boundaries of property rights for ecological and environmental resources, difficulty reflecting negative impacts through market prices, and difficulty for citizens to obtain ecological compensation through market mechanisms; It can also reduce government investment in ecological and environmental protection, introduce social capital, and increase the participation of diverse stakeholders, promoting diversified resource development and utilization. Compared to traditional environmental protection tools, conservation easements also have a certain preventive function, allowing early avoidance of destructive development and effectively avoiding issues such as difficult and costly post-damage restoration; It can enhance citizens' environmental awareness, increase their enthusiasm and initiative in ecological conservation, and reduce potential costs. It can be said that the protective easement system is an important economic means to balance the contradiction between protection and development. It is a clever combination of economic benefits and ecological benefits, public law and private law. Because of these advantages, many countries have drawn on the experience of U.S. conservation easements to develop such contracts or agreements, achieving good results.

It is generally believed that the widespread promotion and implementation of the U.S. conservation easement system is closely related to the following aspects: (1) Mixed land ownership. Nearly 60% of land in the United States is privately owned, making it difficult for the federal government to manage from the perspective of ecosystem integrity. Although from a management perspective, obtaining full property rights through purchase and other means is simpler, financial pressure is greater, subsequent management costs are too high, and it may disrupt the previously stable and harmonious human-land relationship. (2) The United States has designed a comprehensive and strict management system for private land, ensuring the various rights attached to private land ownership. This is an important prerequisite for the implementation of the conservation easement system. (3) A developed land trust system and real estate (land) market. The United States has powerful land trust organizations, with some states even having hundreds of land trust funds. Such social organizations support the subsequent protection of easements, and their public interest ensures that public interests are prioritized during the execution of easements. At the same time, work such as the value assessment of protected easements benefits from the mature appraisal system in the U.S. real estate market, which can better reflect market value. (4) Relatively comprehensive legal protection. The federal government has successively enacted several laws clarifying the legal status of protected easements. Since Congress enacted the Federal Highway Beautification Act in 1965, the Internal Revenue Code (IRC) was enacted in 1980, which states that those who protect easements can enjoy tax relief. In addition to the 1981 Uniform Conservation Easement Act issued by the federal government, states have also enacted similar easement laws, such as Maine's Environmental Easement Reform Act in 2007. In addition, the federal and state governments have supporting laws and regulations promoting easements through tax donations, charitable donations, and other regulations. (5) Clear economic incentives. Tax reductions and exemptions are another major factor in the effective implementation of the conservation easement system. The Domestic Tax Code encourages the public to donate easements and receive tax incentives, including reductions in property tax, personal income tax, and estate tax, thereby encouraging landowners to participate in protection. At the same time, the government has launched a series of public funding projects to purchase or fund social organizations to purchase conservation easements with high conservation value, such as the Land and Water Conservation Fund project. (6) Interaction between government and citizens. The conservation easement system allows the people of the supplying area to mobilize private actions to safeguard the public interest while continuing the intended development and utilization activities. When the government acts as a dependent on the land and appears as an equal, it reflects public authority's respect for private property rights. The emphasis on private rights and respect for the principle of voluntariness between both sides can ease tensions between the government and private sectors. This incentive-based negotiation approach means a shift from government control to collaborative governance.

Although the U.S. conservation easement system has developed rapidly, there are still many controversies, mainly including the following aspects: (1) Lack of flexibility. Although permanent provisions ensure that easements can be enforced stably and long-term, they fail to consider adaptability to external environments, such as land value, public interest needs, and ecological protection value, all of which may change with the environment. (2) The procedures are relatively complex and regulatory costs are high. The one-time direct transaction cost of easements is relatively low, but the subsequent regulatory costs are higher, so managers prefer to purchase or acquire land directly. (3) Assessing and monitoring the value of easements is by no means easy, and it is also difficult to determine their future impact. Not only is the value of easements difficult to assess, but it is also hard to determine whether they can provide public benefits commensurate with the public subsidies provided by tax relief policies. Moreover, the increase in easements creates significant uncertainty in understanding the legal rights and responsibilities of both parties in understanding, implementing, monitoring, and enforcing the legal rights and responsibilities of both parties, which in turn affects the willingness of all parties to participate. (4) The capacity of non-profit social organizations still needs improvement. Non-profit social organizations often face issues in their actual work, such as excessive contract details and difficulties in long-term effective execution and monitoring. In their own operations, there are also issues like lack of cooperation within the system and lack of self-supervision. Additionally, the action plans of these organizations lack integration with government planning and lack macro-level thinking, which can ultimately affect protection effectiveness. (5) Transparency needs improvement. After a conservation easement transaction is concluded, even with public funding, the public often has no opportunity to understand or participate in the process. For example, ranches in the western United States are mostly purchased with public funds, but no information is publicly provided to the public. Private land trust holders are more willing not to adopt public review and monitoring, and the lack of public accountability mechanisms makes it difficult to guarantee fairness and justice. (6) Legal procedures need improvement. Take the procedures for amending and terminating protective easements as an example: the Uniform Protective Easement Act is vague on these issues, and most state laws do not explicitly provide for it. Another example is the lack of public interest assessment standards, where donating low-value easements may result in obtaining large tax exemptions. Therefore, there is still considerable room for improvement in the U.S. conservation easement system (Table 1).

First, although China's natural resources have two different forms of public ownership: national ownership and collective ownership, the relationship between humans and land is complex, and the contradictions between humans and land are prominent. Especially in rural areas with large areas of nature reserves, on one hand, there is a large amount of collective land; on the other hand, there are certain requirements for the integrity and authenticity of the regional ecosystem. Protecting natural resources in such areas is a form of controlling land use rights. Therefore, conservation easements can be more viewed as a form of land use control, only requiring supporting eco-transfer payments or market-based ecosystem service payments to support their operation. Generally speaking, if land expropriation, leasing, exchange, or relocation are used, the required funds are enormous, the time spent is too long, farmers' rights are insufficiently protected, and they are unnecessary, even potentially damaging existing human-land relations. For example, the grasslands in the northwest rely on herders' nomadic activities to maintain the stability of the grassland ecosystem. The endangered crested ibis in the Qinling Mountains depends on rice grown by farmers. The harmonious human-land relationship formed over thousands of years in these places requires local residents' participation. It is unrealistic to fully state these large collective lands. Traditional policy measures for nature reserves tend to prioritize absolute protection oriented toward isolating human activities, which is difficult to resolve the human-land conflict and meet the needs of modern ecological governance.

Secondly, China has already explored protective easements in the judicial field, although more often from the perspective of easements or indirectly includes the concept of protective easements. The Property Law defines easements and the responsibilities and obligations of the enforcer; The property rights section of the Civil Code further clarifies the establishment, registration, modification, and cancellation of easements. Some laws, though not explicitly stated, also reflect the characteristics of protecting easements. For example, the Law on Desertification Control and Desertification Control stipulates that land users and land contracting rights holders must take ecological restoration measures on land that has already desertified, and may obtain corresponding economic subsidies or tax reductions. Policies and measures such as collective public welfare forest compensation, returning farmland to forest, returning grazing to grassland, and symbiotic management in nature reserves have been widely implemented, all of which can be seen as forms of conservation easements.

Third, pilot practices related to easements have already been carried out in Zhejiang Province, Hunan Province, and other regions. Taking the Zhejiang Qianjiangyuan National Park pilot as an example, the local area treats easements as a form of ecological compensation, targeting collective forest land as the target of reform, increasing the ecological compensation amount, and transferring the management and operating rights of the service provider (villagers or village committees) over collective land to the demand party (the National Park Management Committee). Farmers still retain land contracting rights and continue their original land use methods, but must operate under a franchise model. This reform avoided the huge financial burden caused by large numbers of ecological migrants and encouraged local residents to actively participate in conservation. Although the application of easements in Qianjiangyuan National Park clearly reflects characteristics of China's traditional ecological compensation policies and lacks the targetedness, flexibility, and adaptability of protected easements, such explorations are undoubtedly commendable and prove the potential for the implementation of the protected easement system in China. In fact, the application space for protective easements in China is still quite large, and to better balance the contradiction between protection and development, it is necessary to explore protective easements in China. For example, nature reserves that make up about 18% of the national land area contain a large amount of collective land; Among rural collective land (6.55 billion mu), which accounts for more than 45% of the land area of the national land, there is no shortage of ecological areas with protection value; although non-natural protected land within the ecological red line is not included in the nature reserve system, it still has ecological value and is an applicable space for protected easements. As China continues to emphasize rural ecological environment protection and improve ecological governance capabilities in the future, policies and measures such as the protection of easements, which fully respect natural resource property rights and align with the concept of ecological civilization, can be promoted on a larger scale.

This article argues that, in line with the overall approach to current ecological civilization system reform, active exploration of protection easements in China should be explored, and continuous improvement should be made in practice.

3.1 Determining the legal status of protected easements and providing support through multi-level legislation

Although the U.S. federal government's Uniform Protected Easement Act still has considerable room for improvement, it clarifies policy direction and lays the foundation for rapid advancement of the system in various states. First, in the future, China needs to legally define "protected land" and "servitude," clarify in the Civil Code that easements also include protective easements, and clarify the connotation, extension, and other related information of protective easements. This also means that the connotation of easements needs to be adjusted. For example, if the dependency is uncertain, it does not need to be a specific parcel; the distance and area from the land are not restricted, and only the ecological protection needs need to be considered. Second, China can confirm protected easements in existing laws such as the Environmental Protection Law, Wildlife Protection Law, Grassland Law, Forest Law, and the yet-to-be-enacted Nature Reserve Law and National Park Law, thereby confirming the specific content of the regulations and reflecting the differentiated protection needs of different protection objects, thereby promoting coordination between the Environmental Protection Law and civil law. Third, the rapid development of the U.S. protected easement system is not only driven by the implementation of the Conservation Easement Law, but also benefited from the synergistic effects of multiple laws and regulations, including property law, contract law, tax law, and charitable organization law. At present, China's rule of law construction still lags behind that of the United States, and it will take time to fully improve relevant laws and regulations and enhance governance levels in related fields. Objective realities such as collective ownership of natural resources, household contracting, exemption from agricultural tax, and generally low income levels of farmers also mean that the application space of tax law in rural areas is limited, and tax exemption and tax reduction policies are not highly applicable in agriculture and rural areas at this stage. Fourth, drawing on the experience of multiple U.S. states designing easement clauses suited to their own circumstances, and since protection easements have not been explicitly proposed at the national level, localities can provide local legislation to safeguard the protection easement system. In the process of specific exploration and practice, it is necessary to connect with China's legal systems with Chinese characteristics, such as the Rural Land Contract Law and the Land Administration Law. Fifth, in the process of local legislation in China, efforts should be made to promote the standardization and normalization of easement protection procedures, providing guidance for specific practices. In this regard, the comprehensive procedures for review, registration, evaluation, and monitoring in the establishment of U.S. easements offer valuable lessons for China. Local institutional design needs to consider the complete policy cycle, such as clearly specifying acquisition and deletion (ecological status changes, land expropriation, expiration dates, administrative revocation), registration and change, and setting deadlines in relevant procedures. Among these, the term of a protected easement may not be set as permanent and can be consistent with the land use and contract period.

3.2 Fully respect the system for protecting natural resource property rights, and conduct equal negotiations between supply and demand services

The key to the success of the U.S. conservation easement system lies in full respect for citizens' private land resource ownership. While considering the public interest, it encourages equal negotiation between supply and demand and allows demand and service providers to obtain diverse economic returns. First, the U.S. conservation easement system conceptualizes property as a binding of rights and reasonably divides it through conservation easement contracts, restricting, optimizing, and adjusting the rights to possess, use, operate, benefit from, and dispose of natural resources represented by land without changing land ownership, meeting multiple needs and generating multiple benefits. In rural China, land resource property rights have formed a three-way separation of ownership, contracting rights, and management rights, with management rights transferred. On this basis, China's easement system can be further optimized and subdivided based on the reformed natural resource property rights system, maximizing their respective functions while improving overall utility. In this process, participation from multiple stakeholders and the allocation of various resources should be encouraged to form a joint force for protection and maximize benefits. Second, the sale or donation of a protected easement is voluntary, and both parties should engage in dialogue and negotiation on an equal footing, fully reflecting their respective demands in the conservation easement contract. Even when the person in the service area is the government, the relationship between the public authority and the person providing the service remains a civil legal relationship, where both parties freely negotiate restrictions on rights, compensation methods, amounts, etc., reflecting the principle of private law autonomy. This highly autonomous model is especially rare in China's ecological governance sector. For a long time, China has mostly adopted a "command-control" administrative regulation system in the field of ecological protection, making it common to find a balance between protection and development. The most typical example is the regulation in the nature reserve system that "prohibits logging, grazing, hunting, fishing, medicinal extraction, reclamation, burning, mining, quarrying, sand digging, and other activities within the nature reserve," which severely harms the basic rights of local residents. In some areas, farmers' property rights have even been infringed. For example, ecological migration policies often mean farmers lose their right to land income and the right to survive dependent on the land, making it difficult to guarantee environmental justice. The flexible problem-solving methods provided by conservation easements compensate for the shortcomings of administrative coercive policy measures. During policy implementation, the service needs to thoroughly survey public opinion and conduct multiple rounds of consultation to motivate local residents, encourage them to actively participate in ecological construction, and explore measures that can benefit their protection, thereby reducing protection costs and improving efficiency. Mass participation also aligns with China's ecological civilization construction concept.

3.3 Promote refined institutional design and explore application scenarios that are easy to localize

Although the U.S. conservation easement system has significant advantages, it is still necessary to adjust the learning process in light of China's laws, policies, and market environment. For example, the design of protected easements should comply with the basic principles and rules of China's Land Administration Law, Rural Land Contracting Law, and Measures for the Administration of Rural Land Management Rights Transfer, and also need to consider complex local land ownership relationships, land use methods, and ecosystem characteristics. Additionally, when establishing protective easement provisions, the U.S. requires in-depth negotiation between both parties to ensure the precision of the terms. The implementation of conservation easements in China should widely solicit public opinion, consider ecosystem protection needs and public interest characteristics, and provide a complete supporting process. For farmers, tax incentives have little significance. It is necessary to adopt ecological compensation measures that better align with public opinion, such as increasing the amount of ecological compensation, providing better public services such as medical care and education locally, and guiding the development of green industries. For example, for ecosystems, they have differences in time and space, and the objects they protect are often in dynamic change. This means that the institutional design of conservation easements must meet the requirements of ecosystem adaptive management, establishing a list of behaviors for the people in the service area that meet protection needs, along with corresponding monitoring systems, ecological performance evaluation systems, and supervision mechanisms. For the currently widespread nature reserve construction in China, it is more suitable to try applying protected easements. The service providers can be village collectives, contractors, or actual land management rights holders, while those requiring service can be the management agencies of nature reserves or ecological protection social organizations.

Currently, China's protected easement system is still in the exploratory stage. It is necessary to actively explore localized application scenarios, combine them with the current legal situation in China, and provide them for reference in the form of implementation guidelines and other means. For example: (1) In the land trust system, the user transfers the development rights of the land to the government or a non-profit environmental protection organization; (2) The government or social organizations sign contracts with farmers, requiring farmers to limit or prohibit the use of pesticides and fertilizers in their fields; (3) The forest land contract requires the contractor not to cut down trees, or only for tending and regeneration purposes; (4) The nature reserve management agency agrees with the community to restrict residents' use of natural resources around the reserve; (5) When signing farmland contract contracts or private mountain and private land contracts, farmers are required not to illegally dig up wild rare plants or hunt rare wild animals; (6) The government and collective landowners or users within the scenic area have agreed not to damage the scenic area's environment.

Author information

Wang Yufei (born 1985), female, from Cangzhou, Hebei Province, is a researcher at Management World Magazine, holds a PhD in Science, and mainly engages in research on sustainable development policies.