In 1990, Georgia was facing an environmental crisis. The state was overrun by environmental waste, with pollution filling the air and chemicals finding their way into the water supply of Atlanta residents and those living in nearby cities, suburbs and rural communities. Many parts of Georgia, once famous for its green, rolling hills and dense tree coverage, had morphed into a noxious zone, one that disproportionately impacted racial minority communities.

Today, Georgia has made significant progress in reclaiming its past environmental grandeur. The city has the densest tree coverage in the nation – 36 percent, compared to the national average of 27 percent. The Georgia Conservancy alone has helped conserve at least 54,000 acres of green space in Atlanta and 30 Georgia counties. And the region is dotted with trails, parkland, playgrounds and other green space for residents to explore.

The comeback is a product of a number of factors, including the efforts of local residents, business leaders and elected officials who got behind policy initiatives and other cleanup efforts to make Atlanta, once again, worthy of living up to its moniker as “the city in a forest.”

The restoration effort was also propelled by the use of a  little known but significant tool used nationwide to save hundreds of thousands of acres in pristine green space: conservation easements, a voluntary legal agreement by a landowner to limit the uses of a piece of land in order to protect its conservation benefits.

Now, though, the ability to use this tool may be sharply restricted because it is attracting scrutiny from lawmakers and regulators in Washington who are asking whether the public benefits from a particular federal program that allows landowners to apply for federal tax deductions for the land they voluntarily protect with a conservation easement.

A panel of the U.S. Senate has launched an inquiry into the tax incentives provided to such landowners, casting a shadow over the progress Georgia has made and prompting advocates to warn that Congress might inadvertently turn back the clocks.

Georgia’s environmental crisis hadn’t happened overnight, and it took a long time for meaningful change to take effect. During the nineties, the urban footprint of Atlanta almost doubled over a seven-year period, expanding from 65 miles north-to-south to 110 miles.

Statewide, 320 acres of Georgia’s farmland was taken out of production every hour and the state lost more than one million acres of forests and farmland to new construction. Sprawling suburban developments with little to no public transportation made for long driving distances into Atlanta for daily commuters, with each person traveling an average of 34.2 miles per day.

Determined to stem the damage, concerned citizens and activist groups organized to demand change. In 2001, a coalition of environmental and civil rights groups – including the Georgia Chapter of the Sierra Club, Georgia Coalition for the People’s Agenda, Southern Organizing Committee for Economic and Social Justice and Environmental Defense – sued the Environmental Protection Agency for failing to reclassify Atlanta’s air pollution status from “serious” to “severe,” hoping to expedite the air cleanup process. But progress through the courts was slow going.

By 2005, there were signs of real danger. It was the fifteenth consecutive year when Atlanta averaged 40 code orange days during the summer, which means city health officials warned children and people with certain health conditions to avoid prolonged exposure to the outdoors. That year, it was reported that 11 percent of Georgia’s children had asthma, nearly double the national average.

Since then, while some progress has been made in reducing the air pollution and smog in Atlanta, the 2019 State of the Air Report by the American Lung Association ranked the Atlanta metro-area the 19th most-polluted city by year-round particle pollution.

In 2011, after years of failed environmental cleanup initiatives, the Georgia Conservancy had a realization. Since more than 90 percent of Georgia’s 38 million acres of land are privately owned, encouraging landowners to become stewards of Georgia’s land would be a critical piece of the solution. The conservancy knew they could not “conserve Georgia’s natural resources and threatened habitats without a focused outreach and educational effort towards private landowners.”

That year, the Georgia Conservancy created the Land Conservation Program to offer guidance to landowners on the state and federal tax conservation incentives on offer for permanent land protection.

“The essence of our approach,” the conservancy explains, “is to show landowners how they can benefit financially by permanently protecting their land and ensure that critical habitat will remain productive and undeveloped for present and future generations.” Over the next five years, the Georgia Conservancy helped to conserve or restore 54,000 acres of land in 30 Georgia counties.

Part of the program was to educate landowners about the U.S. Department of Agriculture’s Conservation Easement Program, through which Georgians can receive tax deductions by voluntarily putting a development restriction on their land. Once the development restriction is placed, the land can no longer be used for a commercial mall, a mining operation, industrial power plant, or any other type of development.

In the Atlanta metro area, land trusts and other nonprofits have been turning to conservation easements to preserve the city’s tree canopy, which plays a significant role in mitigating the harmful effects of urbanization by naturally purifying the air.

Since 76 percent of Atlanta’s trees are on residential property, advocates say that conservation easements are an important tool for protecting Atlanta’s green spaces. While many say there is more work to be done, Atlanta has come a long way from the dire situation a decade ago.

On the whole, encouraging landowners to use conservation easements has been so successful that Georgia extended the state land conservation tax credit to 2021.

But progress could unravel.

In March, Senate Finance Committee (SFC) Chairman Chuck Grassley (R-Iowa) and Ranking Member Ron Wyden (D-Oregon) launched an inquiry into conservation easements.

As part of the inquiry, SFC members are looking into rare cases of alleged misuse of conservation easements and seem to be looking at only one type of landowner, those who form partnerships to own and later conserve land. They contend that some companies that facilitate conservation easement transactions received inflated appraisals as a way to boost the amount in charitable deductions they can claim after donating an easement.

“Our first concern,” Wyden said in a press release announcing the inquiry, “is preserving the integrity of the conservation easement program, which has helped protect critical habitat across the country.”

Over the past few months, though, that concern seems to have shifted as the SFC has taken an approach that some say is uncharacteristically antagonistic. A flashpoint came in June when the SFC sent a letter to the subjects of the investigation asking for private tax information of landowners. Typically, that information is obtained from the IRS through a process designed to protect it from being leaked or otherwise made public.

Advocates of conservation easements, as well as landowners seeking clearer guidelines and fairer regulations from the IRS, have long called on Congress to consider reforming and strengthening conservation easement law to rein in the few bad actors while controlling its regulator, the IRS.

The IRS tends to view every conservation easement as a loss to the public treasury due to the tax incentives that Congress put in place to encourage conservation of private land for future generations, but some have said the IRS is viewing the law through its own policy lens.

Despite these clarion calls from advocates and private landowners, the SFC appears to have given pragmatic reform a back seat. Instead, the committee seems to be focused on narrowing the tax incentives for private conservation by unrelated, conservation-minded individuals that pool their resources through partnerships to acquire and conserve land.

This tightening of conservation incentives could reduce conservation in America by shutting out the vast majority of landowners from voluntarily participating, leaving the option open only to those who can afford to shoulder the significant costs associated with donating land.

If the SFC inquiry continues down what appears to be a punitive, antagonistic road, Georgia’s efforts to clean up its air, water, and land could face major obstacles. Private landowners in Georgia could decide that it’s just not worth the headache of becoming a target of Congress for taking up the cause of conservation. And if the SFC ends up gutting the conservation incentives that have been in place for decades, effective private conservation might no longer be an option.

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