PA v. Industry: Conservation Easements in Practice

By: Evan Stein, Staff Writer

Amid unprecedented climate developments the fledgling Trump administration seems to be taking aim at clean energy and cohesive environmental protections.¹ His campaign messaging stressed domestic oil production and fracking, especially in Pennsylvania.²Conservation easements may offer a route to permanently protecting land from development, drilling, and fracking even as ownership of land transfers between owners.

Donald Trump based much of his campaign in Pennsylvania on energy policy centered on revitalizing American fossil fuel production and successfully won the state under the slogan “drill, baby, drill”.³ He seemingly plans to follow through on these sentiments when appointing the head of the US Energy Department, founder and CEO of Liberty Energy Chris Wright. Chris Wright is a climate change skeptic and opponent of clean energy, posting “There is no climate crisis, and we’re not in the midst of an energy transition either” on his LinkedIn profile last year.⁴

Oil and gas corporations can drill, mine, and frack on privately owned land, but are also able to apply for a lease to the mineral interests of the state from the Bureau of Land Management (BLM) allowing them to extract natural resources. While traditionally private land is for private use, there is a way to prohibit certain activities even as the ownership passes from one entity to another.⁵This is known as a conservation easement and can protect land from being used for protecting numerous environmental interests like habitats for fish and wildlife, including threatened and endangered species, water quality by filtering sediments and chemicals, reducing flooding, recharging groundwater, and protecting biological diversity.⁶

This system works by allowing landowners to seek a conservation easement that permanently reserves some property right concerning the land use to the easement holder.⁷ Then if at some point in the future that easement is violated by a future owner, the easement holder may return to invoke that right and prevent the act by filing suit.⁸ This process is one of the most efficient ways to ensure that particular plots of land remain protected from the associated harms of mineral extraction through fracking.⁹ These harms include pollution of aquifers and the surrounding air quality.¹⁰ These easements are often upheld in courts, restricting violative industry and provide remedy to easement holders.¹¹

The results of these actions can be quite inspiring as seen in American Freedom Oil & Gas LLC v. Audubon Society of Western Pennsylvania v. Victor Milko, a 2015 case that upheld the rights of a conservation easement.¹² In 2006 the Audubon Society of Western Pennsylvania executed a conservation easement on a tract of land in Butler County that prevented the property to be used in any way other than the few listed.¹³ Almost a decade later, Viktor Milko, the owner of the land at the time, signed a contract with American Freedom for the mineral rights to the land.¹⁴Audubon notified the company of the encumbrance on the land and, in response, American Freedom filed action for declaratory judgement and Audubon filed a counterclaim for violation of the easement.¹⁵After a long period of litigation, the court found for Audubon and declared the mineral rights agreement void.¹⁶ Along with the judgement, the court found that the easement offered remedy to Audubon in the form of attorney’s fees: $128,430.43 plus interest.¹⁷ Part of those fees ($10,000) dollars were awarded from the landowner Milko for promising to protect the mineral rights conferred to American Freedom despite the easement.¹⁸

While this is just one example, there have been numerous cases that have played out very similarly. The wording of the easement itself is very important to the outcome, but when an act is directly prohibited, the court is bound to honor the document.¹⁹ As the amount of untouched land continues dwindle, advocating for steadfast protections on the environment is critical for the future health of our planet and its people.