The Wealth Planning Climate

Allison Anna Tait

Climate change and environmental justice are topics that thread through and are pushing the boundaries of legal inquiry in multiple doctrinal areas. From reproductive justice to corporate investing, environmental concerns have emerged as both salient and pressing. One subject area still awaiting robust exploration of the relationship between environmental concerns and legal rules is inheritance law. This lack of energetic conversation about the environment and estate planning might be, on the one hand, surprising. Estate planning is all about the future and provisioning future generations. On the other hand, it is perhaps not a complete surprise since estate planning tends to focus on the preservation of private family wealth rather than the creation of extended public benefit.

Given the need for increased scholarly attention to this area, it is encouraging to see two short pieces about environmental justice and estate planning in the Fall 2023 volume of the ACTEC Law Journal dedicated to a critical analysis of inequality in the field. The first of the two articles is Trace Brooks’ article, Incorporating Social Justice and Environmental Sustainability into Estate Planning Through Conservation Easements. In the article, Brooks explores “the intersection of estate planning, private land conservation, social justice, and environmental sustainability,” and discusses ways in which conservation easements have been used both to entrench and erode inequality. Conservation easements, in which a landowner donates an easement to a conservation organization (think a land trust or even the government) in exchange for a tax deduction, have historically been a tool for wealth preservation and obtaining tax advantages. So, while these kinds of easements provide environmental benefit by restricting development and preserving the land, they have also comprised a mechanism for consolidating and increasing family wealth, particularly for white families and communities, and particularly for those who can afford homes and land in desirable geographies. The existence and effects of this trend in high-wealth locales have been compellingly documented and explored by sociologists like Justin Farrell in Billionaire Wilderness and Lisa Sun-Hee Park and David Pellow in The Slums of Aspen.

Brooks pays heed to the use of conservation easements in “perpetuating existing social and economic disparities and limiting public access to protected lands.” And he reminds us that conservation easements can exacerbate wealth inequality in a number of ways: by taking land out of public use, since there is no public access requirement for the donated land/easement; by potentially decreasing tax revenue through the grant of tax deductions; and by favoring families and individuals who “tend to be concentrated in rural and suburban areas” where land suitable for donation is more likely to be found.

Nevertheless, Brooks argues, estate planning “has emerged as a powerful tool for promoting both social justice and environmental sustainability.” In particular, conservation easements can “incorporat[e] social justice and environmental sustainability objectives into estate planning” when donors pick collaborative partners with care, selecting organizations that demonstrate commitment to the same sustainability and access goals, and when they draft conservation easements with precise and measurable goals in mind. Going forward, Brooks notes that “commonly suggested changes include greater public participation in easement formation and enforcement, creation of a national easement database, changing the tax incentive structure, and expanding the use of easements in urban areas.”

As a coda, Brooks adds that estate planners “play a pivotal role” in facilitating conservation easements that are meant to promote environmental justice and increase social equality. With this thought, he previews the central argument of Carla Spivack’s article, Estate Planning for the Apocalypse, which appears in the same volume. Spivack, speaking more pointedly to both the present devastation wrought by climate change and the future catastrophe that it threatens, prefaces her article by noting that “[n]one of us can any longer ignore the fact that …the present involves climate change [and] the future involves more or less devastating effects of climate change depending on what we do now.” Like Brooks, she also observes that estate planning has conventionally served wealthier families and that conventional inheritance practices have not only served the wealthy but have been a factor in creating and maintaining wealth inequality—as well as environmental injustice.

Accordingly, estate planning for the apocalypse requires not only recognizing that “the fate of the wealthy and the poor are intertwined in the climate crisis,” but also that estate planners will have work to do on both ends of the wealth spectrum in order to mitigate the worst harms of climate change. On the low-income end of the spectrum, Spivack recommends increasing the prevalence of planning to reduce high intestacy rates. High intestacy rates, which are particularly common in Black and Indigenous communities, render members of these communities “less likely to have secure title to their homes and to accomplish successful intergenerational wealth transfer.” This lack of secure title subsequently increases the potential harms of climate change because “[i]nsecure title can be disastrous in a time of weather catastrophe. Spivack notes that, because of clouded title, many low-income families cannot qualify for government recovery aid and loans after severe weather events like Katrina in New Orleans and Hurricanes Rita and Dolly in Texas. For these reasons, Spivack supports efforts on the part of ACTEC and other estate planning organizations “to bring property transfer services to underserved communities, including funding of state bar pro bono work and committees to work for reforms in the laws of probate and intestacy that currently disadvantage the poor.”

While access to estate planning must increase for low-income families and individuals, and especially in minority and minoritized communities, at the other end of the spectrum, estate planning for the rich must also change. The lifestyles of high-wealth families are responsible for generating an outsized share of environmental harms. Spivack reminds us that “the richest one percent will emit thirty times more carbon emissions than the rest of the globe by 2030” through the use of private jets and super-yachts, among other things. Moreover, the consequences of high-wealth investing – “investment emissions” – are substantial. One Oxfam report states: “the annual carbon footprint of the investments of just 125 of the world’s richest billionaires in our sample is equivalent to the carbon emissions of France, a nation of 67 million people.” Nonetheless, while ultra-rich families and individuals are the largest creators of environmental harms, those who suffer most from are low-income families who are vulnerable to the most severe and immediate effects of climate change.

To address these problems from the perspective of estate planning, Spivack proposes several things: a public statement from ACTEC about the need for climate conscious lawyering in estate planning, including guidelines about what such lawyering would look like, and establishing an ACTEC working group to develop a plan for “Climate Conscious Estate Planning.” Some concrete steps might include explaining the implications of different kinds of investments for reaching climate goals when drafting trust investment guidelines or publishing tips to help attorneys advise clients about the climate related consequences of their retirement plans and ways to reduce their carbon footprint.

That both of these articles turn our collective attention as scholars and estate planners to the conjoined questions of climate change and environmental justice is a welcome push in the right direction. Few things are more directly tied to environmental harm and injustice than the exercise of elite family privilege and management of elite family wealth, and few legal fields are more embedded in the work of shaping legacies and stewarding resources for future generations. The question then becomes, as these two authors point out, how personal legacy planning can productively combine with public environmental planning.

For another review of Estate Planning for the Apocalypse see Victoria J. Haneman, Climate Conscious Advocacy and Perpetual Burdens, JOTWELL (August 2, 2024).