TOWARD DISTRIBUTED NATURE: THE AFFORESTATION EASEMENT AND A REGENERATIVE LAND ETHIC

Anthropogenic climate change is altering humanity’s relationship to the natural world. As extreme weather events become more frequent and biodiversity plummets, humankind has three responsibilities: lower carbon dioxide emissions, preserve what remains of the natural world, and generate new pockets of nature to slowly rebuild what we have destroyed.

Trees—particularly when grouped together in forests—are humanity’s allies. Yet while tree planting is an often-hailed solution to climate change, few legal tools exist in the United States to foster afforestation on private land. Current federal programs directed at tree planting focus on lumber production or agriculture, with little attention to small-scale afforestation projects aimed at restoring and recreating the natural world.

This Note joins a growing body of literature suggesting that individual property owners can make a difference in the fight against climate change by supporting natural landscapes. It terms a subset of these efforts “distributed nature” and posits that incentivizing property owners to engage in distributed nature requires legal intervention. It then suggests a legal tool, the afforestation easement, which would provide individual landowners with tax benefits for donating their land for permanent afforestation. Along the way, it reimagines the concept of “conservation” to include setting aside land not only for static preservation but also for dynamic regeneration.

The full text of this Note can be found by clicking the PDF link to the left.

* J.D. Candidate 2024, Columbia Law School. Thank you to Professor Michael Gerrard, Phin Bauer, Steph Haenn, and to the staff of the Columbia Law Review. Thank you also to the trees.

“[A] land ethic changes the role of Homo sapiens from conqueror of the land-community to plain member and citizen of it. It implies respect for his fellow-members, and also respect for the community as such.”

— Aldo Leopold. 1 Aldo Leopold, An Ethic for Man-Land Relations, in The American Environment: Readings in the History of Conservation 105, 107 (Roderick Nash ed., 2d ed. 1976) [hereinafter Nash, The American Environment].

Introduction

Humanity is the most influential species on the planet. 2 See Edward O. Wilson, Half-Earth 12 (2016) (“Here on Earth [humanity’s] name is Power.”). It has colonized the globe, 3 See Craig Welch, Earth Now Has 8 Billion People—And Counting. Where Do We Go From Here?, Nat’l Geographic (Nov. 14, 2022), https://www.nationalgeographic.com/environment/article/the-world-now-has-8-billion-people (on file with the Columbia Law Review) (reporting that the world population, as of November 2022, likely reached eight billion). harnessed the energy of the elements, 4 See, e.g., How Does Solar Work, Off. Energy Efficiency & Renewable Energy, https://www.energy.gov/eere/solar/how-does-solar-work [https://perma.cc/QKH3-3PEL] (last visited Jan. 12, 2023) (“When the sun shines onto a solar panel, energy from the sunlight is absorbed by the [photovoltaic] cells in the panel. This energy creates electrical charges that move in response to an internal electrical field in the cell, causing electricity to flow.”). and even traveled into space. 5 A to Z List of NASA Missions, NASA, https://www.nasa.gov/a-to-z-of-nasa-missions/ [https://perma.cc/3BWU-XAEC] (last visited Mar. 1, 2024) (listing all U.S. government space missions). In its rise, however, humanity has imperiled not only its own continuing existence but also life on the very planet it inhabits. Human activities are causing the climate to change, 6 The 2022 Intergovernmental Panel on Climate Change (IPCC) report speaks of “human-induced climate change” without qualification. See IPCC, Climate Change 2022: Impacts, Adaptation and Vulnerability: Working Group II Contribution to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change 9 (2022) (on file with the Columbia Law Review) [hereinafter IPCC, Climate Change 2022]. other living beings are disappearing at alarming rates, 7 See Elizabeth Kolbert, The Sixth Extinction: An Unnatural History (2014) (arguing that human activity is causing an extinction level event comparable to only five other instances in the past half-billion years); infra notes 26–31 and accompanying text (detailing the scope of current species die-off). and vast tracts of wilderness are being eliminated almost daily. 8 See, e.g., infra note 31 and accompanying text (describing the example of the Amazon rainforest). Humanity is powerful, and it is destructive.

Having demonstrated its ability to alter the planet, humanity has a responsibility to exercise that ability with care. The species itself cannot expect to survive the long-term impacts of its own destructive tendencies. 9 See Wilson, supra note 2, at 13 (“[O]ur physical bodies[] have stayed as vulnerable as when we evolved millions of years ago. We remain organisms absolutely dependent on other organisms. People can live unaided by our artifacts only in bits and slivers of the biosphere, and even there we are severely constrained.”). Self-preservation—as well as a duty toward other living beings—demands that humanity begin viewing its relationship to the natural world with the eyes of stewards rather than of conquerors. Part of that stewardship is protecting those natural environments that still exist. 10 See, e.g., infra note 35 (describing conservationist policies recently announced by world governments). But another part is restoring what has been lost. 11 See Douglas W. Tallamy, Nature’s Best Hope 24, 26 (2019) (“We need a new conservation plan, one that sustains the living systems we depend on everywhere . . . [and] create[s] landscapes that contribute to rather than degrade local ecosystem function.”).

The natural world has demonstrated a remarkable ability to regenerate when left alone or when assisted by human beings. 12 See id. at 26 (“[W]e are learning how rapidly the animals return to our yards, parks, open spaces, neighborhoods, and even cities when we landscape sustainably.”). But any restoration and regeneration of the natural world requires space and time. In the United States, that means confronting the reality of private property ownership. 13 See infra notes 41–43 and accompanying text (describing private property’s deep roots in American law and tracking the extent of current private property ownership in the United States). The fact that so much of America’s land is privately held means that individual engagement will be a necessary element in any regenerative environmental ethic. 14 Sixty percent of the land in America is privately owned. Ruqaiyah Zarook, Map of the Week: Mapping Private vs. Public Land in the United States, Ubique, https://ubique.americangeo.org/map-of-the-week/map-of-the-week-mapping-private-vs-public-land-in-the-united-states/ [https://perma.cc/CD83-2XQC] (last visited Oct. 13, 2022). For a discussion of the ways in which individuals are already mobilized to help fight climate change, see infra notes 44–48 and accompanying text.

This Note labels the regeneration of the natural world on individual property “distributed nature” and argues that the federal government—because these efforts must be nationwide to have a truly restorative impact—must implement policies that incentivize participation in the effort. To that end, legal tools must be designed to encourage private landowners to use their lands for the benefit of other living beings. This Note suggests one such tool to foster the regeneration of one of nature’s most valuable resources: trees.

Tree planting is often heralded as a solution to all the climate problems facing the world. 15 See infra notes 68–75 and accompanying text. While planting trees is not a silver bullet, trees are extraordinary beings with many positive qualities. 16 See infra notes 73–77 and accompanying text. And tree planting is one of those rare practices that can attack both sides of the climate crisis—the need to decarbonize and the need to halt biodiversity loss 17 See David Wallace-Wells, Opinion, Has Climate Change Blinded Us to the Biodiversity Crisis?, N.Y. Times (Dec. 21, 2022), https://www.nytimes.com/2022/12/21/opinion/climate-change-biodiversity-crisis-cop15.html (on file with the Columbia Law Review) (arguing that a focus on decarbonization ignores considerations of solutions to the loss of biodiversity). —in one act. This Note adopts tree planting—and, more specifically, afforestation 18 See infra section I.C.3 and accompanying text (distinguishing afforestation from other forms of tree planting). —as both a valuable end unto itself and an example of the kind of act that could characterize a broader regenerative land ethic. The Note therefore designs a legal instrument—the afforestation easement 19 See infra Part III. —that could prove valuable both as a tool in the distributed nature toolbox and as a model of how to adapt existing American legal structures to the needs of this moment.

This Note proceeds in three Parts. Part I details the perilous state of the world and its inhabitants, discusses the benefits of trees and forests, and outlines an ideal of afforestation. Part II examines current federal tax incentives and programs that support, or could be used to support, afforestation. And Part III suggests a new tool to fill the gaps left by those incentives and programs: the afforestation easement.