First, as suggested above, a TEVCO must specify the vulnerable conservation objective that serves the relatively natural habitat purpose.
This kind of amendment could, like TEVCO trades and uses of TEVCO-restricted funds, be one of the events to be described and explained in the holder's annual tax return or on the public record.
Some provisions of a TEVCO easement should not be perpetual, but should be expressly specific to a parcel or a circumstance.
This provision, obviously, could be called a precursor to the TEVCO proposed here.
A Treasury Department willing to further refine its exceptional-cases definition of "perpetual" could make the TEVCO possible merely by adding language to Treasury Regulation [section] 1.170A-14(b)(2), which would then (additionally) read, "including a tradable easement for a vulnerable natural conservation objective as further defined in [section] 1.170 A-14(c)(2)" or "(g)(6)." One of those two regulations, let us say (g)(6), would include the following language: "[I]n the case of a conservation easement obtained for the qualified purpose of conserving relatively natural habitat under I.R.C.
The TEVCO proposal is a variation (albeit a substantial variation) on the themes currently playing in the regulations.
With respect to state law, the UCEA states generally define conservation easements in a broad enough way to accommodate a TEVCO; the UCEA, as the Commissioners' Prefatory Note says, "allows great latitude to the parties ...
TEVCO enthusiasts, should there ever be any, might argue that there are many conservation objectives already protected by easements that will surely be compromised by the effects of climate change.
(43) A state law designed to facilitate easement amendments allowing TEVCO trading would certainly be subject to challenge (assuming standing) for impairing the contract rights of donors who bargained for the usual provisions of a deductible easement: termination only upon impossibility and with judicial assent.
Whereas the TEVCO rules would ensure the continuation of a public benefit, indeed, the primary express public benefit, the law that applies to existing charitable trusts and restricted gifts (including conservation easements that do not include a provision that allows for TEVCO type trading) requires more: the cy pres standard of impossibility and fidelity to the full set of substantive charitable restrictions typically present in a conservation easement.
Because there has to be a source of funds for the owner of the underlying fee to pay for the release of conservation restrictions, the likeliest circumstance for a TEVCO deal would be one in which there is an immediate demand for remunerative use of the property that is to be unrestricted.
A trade could only occur if the holder of the TEVCO has made a deal to reapply the value of the restrictions to the conservation of a parcel that can be documented as better serving the original conservation objectives.