Cooperatives at a Crossroads

A report by CU Master of the Environment Graduates, Kayla Carey and Nathan Stottler

Kayla Carey and Nathan Stottler are recent graduates of CU’s Master of the Environment program specializing in Environmental Policy.  They took Professor Sharon Jacob’s Energy Law and Regulation class this past spring and have prepared their capstone project, Cooperatives at a Crossroads: Identifying the Opportunities and Challenges of Clean Energy in Electric Cooperatives.  The report analyzes the Generation & Transmission electricity cooperative model, examines the challenges and opportunities of cooperative exits, and investigates the role of cooperatives in the clean energy transition. The GWC is happy to help them meet their capstone requirements by sharing their work and helping them seek the input of interested parties.

The electricity sector will require a systemwide approach to meet greenhouse gas (GHG) emission targets and avoid the worst possible consequences of climate change. According to the Intergovernmental Panel on Climate Change (IPCC), at least 80% of the world’s electricity must be generated from low-carbon sources by the year 2050. To meet this target, electric utilities across the world must make and meet aggressive decarbonization commitments.

Rural areas need to commit to decarbonization to mitigate the most severe impacts of climate change.Rural communities, and their economies, are heavily reliant on natural resources, and are particularly vulnerable to the volatile ecological impacts of intensified heat, drought, flood, and wildfire. Yet these communities have often been overlooked as major players in the battle against climate change, despite being positioned to make a significant impact.

The purpose of our research is to identify pathways to accelerate the clean energy transition in rural America.Rural residents typically have more costly and carbon intensive energy mixes compared to urban and suburban customers. This report identifies the challenges that are preventing cooperatives (co-ops) from joining the clean energy transition, as well as the opportunities that exist for co-ops to overcome those challenges and achieve a future of clean, affordable electricity.

View the full report here:

Cooperatives at a Crossroads

Water Exports and the San Luis Valley in Colorado: Understanding the History and Current Regulatory Framework

A Report from the Acequia Assistance Project

The Getches-Wilkinson Center is pleased to present the work of a team of students with the Acequia Assistance Project, who spent the last two years digging into the history, the politics, and law surrounding attempts to export water from the San Luis Valley.

The term acequia refers to one of the communally-owned irrigation ditches used by agricultural communities in parts of New Mexico and Colorado. But more than that, it describes a centuries-old tradition that treats water as a shared resource, essential to the life of the community. Together, the ditches and the communal values that created them sustain some of the oldest farming communities in the Southwest. The Acequia Assistance Project is a joint effort by the Getches-Wilkinson Center, Colorado Open Lands, and the Sangre de Cristo Acequia Association, to provide legal assistance and educational materials that help Colorado’s acequia communities maintain and protect the acequias.

The Acequia Project’s work is centered in the San Luis Valley in southern Colorado, where water is both scarce and essential for survival. The hydrology of the Valley relies on an aquifer system that sits beneath the Valley floor. Maintaining the health of the aquifers is a matter of life or death for the towns and large-scale farming operations that draw groundwater from wells, and for the communities that use surface water to fill their acequias. The aquifers also underpin the ecology of the Great Sand Dunes National Park, and water from the Valley feeds into the Rio Grande River, thereby helping Colorado to meet its legal obligations under the interstate Rio Grande Compact.

Despite the many longstanding demands on the Valley’s water, over the last three decades various developers have looked to the Valley as a source of water for Denver and the other rapidly growing cities on Colorado’s Front Range. Water in the Valley is precious, but it does not fetch the same prices locally that municipalities will pay in the Denver metropolitan area. This profit potential attracts developers looking to buy up water rights in the Valley and then pipe the water over the mountains to growing populations on the Front Range.

So far, these export proposals have withered in the face of fierce opposition from local residents. Residents understand that threats to the Valley’s water are also threats to their way of life, and have fought hard to preserve their region’s resources. Over the course of these fights, various laws and regulations have been built up to safeguard the Valley’s hydrology. But despite local opposition and a growing body of legal hurdles, water export proposals continue to this day. This threat of water exportation is a constant concern hanging over the acequia communities and other local residents that rely on the Valley’s water to survive.

As part of the Acequia Project’s partnership with communities in the San Luis Valley, a team of CU students have spent two years studying water export proposals in the Valley. The students sifted through the array of laws governing water use in the Valley, interviewed community leaders and Colorado water law experts, and tracked the history of water export proposals from the 1980s through the present day. Their final report, Water Exports in the San Luis Valley, draws on Colorado statutes and regulations, water court decisions, investigative reporting, and the work of expert agencies and other scholars to build a nuanced picture of the issue.

Water Exports in the San Luis Valley is intended to be a practical resource for opponents of water export in the Valley. To this end, it reviews the hydrology of the region and the critical roles played by the aquifers. It tracks the history of water usage and export attempts in the Valley. Finally, it catalogues and explains the various legal protections that have been built up over the years to prevent the looting of the Valley’s hydrological heritage.

The Acequia Assistance Project hopes first and foremost that, by collecting the knowledge and experience of the Valley’s occupants, this report will facilitate future defenses of the Valley’s water. But hopefully this report also serves to educate a wider audience and raise awareness about the history of water struggles in the Valley. The lessons learned over decades in the San Luis Valley will likely only grow in relevance as we come to grips with the changing climate of the American West.

WATER EXPORTS EXECUTIVE SUMMARY
WATER EXPORTS AND THE SAN LUIS VALLEY IN COLORADO: UNDERSTANDING THE HISTORY AND CURRENT REGULATORY FRAMEWORK (FULL PAPER)

Meeting the Challenges of Improved Water Management in the West: Session Four

Investing in Healthy Headwaters

Tuesday, October 27th, 2020

The relationship between healthy forests and reliable water supplies has been understood for centuries, and is increasingly important in an era of climate warming, forest disease outbreaks, and devastating fires.  However, the water management community historically has not been heavily engaged in efforts to protect and restore healthy source water areas. This is now changing in many pockets throughout the West, and lessons are being learned that might suggest opportunities for broader regional efforts.

Kimery Wiltshire
President, Carpe Diem West

Mike McHugh
Senior Water Resources Project Manager, Aurora Water

Event Video

CLE Info

Meeting the Financial Challenges of Improved Water Management in the West: Session Three

A Role for the Business Community

Wednesday, October 14th, 2020

Many members of the business community are increasingly concerned that western water scarcity is a threat to producing and selling their products, and more generally, to maintaining the healthy social and economic conditions that are needed to sustain strong economies. A variety of initiatives are now underway to address this concern, and to address water management issues both within and outside of their sphere of operations.

Mike Bernier
Director of Sustainability and Environmental Affairs, Swire Coca-Cola

Todd Reeve
Chief Executive Officer
, BEF/Business for Water Stewardship

Event Video

CLE Info

Meeting the Financial Challenges of Improved Water Management in the West: Session Two

Water Markets and Private Investments in Western Agriculture:  A Road Forward?

Thursday, September 24th, 2020

Using market forces to shift the distribution and use of western water resources is a controversial topic. Some individuals fear that private investments in western agriculture will doom the sector, as water will inevitably flow to higher-paying uses and users in urban settings. To others, these investments allow agriculture to become more efficient and resilient, and when done correctly, can minimize any pain associated with large-scale water reallocations.

James Eklund
Founder and CEO, Eklund Hanlon LLC

Peter Fleming
General Counsel, Colorado River Water Conservation District

Event Video

Colorado River District Supply Planning Studies

CLE Info

Meeting the Financial Challenges of Improved Water Management in the West: Session One

Expanding the Toolbox of Water Financing Options

Tuesday, September 15th, 2020

Gone are the days when funding western water needs was merely a task of gaining Congressional authorization and appropriations for new dams and reservoirs. Today, federal funds are limited, and much of what needs to happen does not involve new infrastructure. A vast toolbox of potential funding strategies are, at least theoretically, available, although many options are unproven. Many such strategies are under consideration in Colorado for implementing the State Water Plan.

Event Video

Nancy A. Smith
Director of External Affairs, Colorado River Basin Program, The Nature Conservancy

Presentation

Lauren Ris
Deputy Director, Colorado Water Conservation Board

Presentation

CLE Info

Many Roads to the Public Interest: Utility Scandals Signal a Need to Reevaluate Energy Regulation

By Colorado Law Student Conor J. May

Public utilities occupy a unique position in the American economy. This unique position is currently the subject of fresh scrutiny, and various reformers propose radically divergent visions for the future of the electricity sector. This renewed scrutiny comes in the wake of that age-old herald of political upheaval: scandal.

High-profile scandals have rocked many electric power utilities in recent years. In 2017, the Puerto Rican Electric Power Authority (PREPA), which has a long history of problematic behavior, found itself embroiled in numerous controversies in the aftermath of the devastation wreaked by Hurricane Maria. In 2019 Pacific Gas & Electric (PG&E) filed for bankruptcy amid a storm of criticism about the mismanagement that caused deadly wildfires Paradise, California. Around the same time, a trade association supported by some of nation’s largest power companies was investigated by the Congress for using customers’ utility bills to fund EPA lobbying activity. The run of bad press for utilities has picked up in 2020, with federal investigations into South Carolina’s SCANA Corporation and Dominion Energy, Ohio’s FirstEnergy, and Illinois’s Commonwealth Edison (ComEd). These investigations involve various charges of bribery, racketeering, and misuse of public funds. Such scandals are certainly not unique to the utility sector. Any line of commerce as old and ubiquitous as electricity has no doubt faced its share of accusations. But after the wave of fresh fiascos, old critiques are resurfacing. These critiques question whether the unique niche utilities occupy, somewhere between the free market and public administration, isn’t a breeding ground for cronyism and regulatory capture.

The legal concept of public utilities in the United States is rooted in 19th century jurisprudence. Chief Justice Waite perhaps described it best: “Property does become clothed in the public interest when used in a manner to make it of public consequence, and affect the community at large.” Quoting Lord Hale, he noted that “when private property is affected with the public interest, it ceases to be juris privati only.” When a private company provides an essential piece of public infrastructure (such as water, power, telecommunications, or gas) the company can be subject to additional layers of oversight and regulation.

Public utility thinking also grows out of the economics of natural monopolies. As Richard Posner describes, “under competition, we need little worry about a firm’s incentives to minimize its costs, and to innovate.” But the classic utilities – water, power, telecommunications – have traditionally been thought of incompatible with free-market competition. Natural monopolies tend to arise when a good or service can be supplied at lowest cost by one company, rather than by multiple competitors. In the utility sectors, the initial cost of infrastructure was often thought to render local competition inefficient. One need only look at pictures of 19th-century cities to realize the problems that arise from numerous competing power grids.

Hence the unique position of the regulated utility: a private company whose rates and service are overseen by government regulators. In lieu of the competitive pressures of the market, regulators step in to make sure the public gets reasonable service at a low price. However, this model comes with its own problems. For example, what happens if, either by legal or clandestine means, the regulated company wields undue influence over the regulators? As the proponents of public choice theory are quick to point out, when regulation delivers diffuse benefits to the public but has major consequences for one group, that group is likely to expend disproportionate effort to influence over the regulatory process. This brings us full circle to the recent scandals, which involved for-profit companies, supposedly “clothed in the public interest,” mismanaging public funds or using bribery to increase profits. In the case SCANA and Dominion, the utilities “deceived investors, regulators, and the public over several years about the status of a $10 billion.” And illicit behavior is only one side of the coin. Legal scholars have documented many perfectly legal methods that utilities have to influence those overseeing them. Wherefore then serveth the public interest?

Proposals for how to fix the system abound. But while we do not lack for suggestions, many of these suggestions pull in opposite directions.

Some advocates argue for competition in lieu of regulation. The electric lines overhead may be a natural monopoly, but generating the power in those lines is increasingly ripe for competition. Competitive restructuring first became popular late in the 20th century, but has resurfaced in recent years. Solar, wind, and other distributed forms of generation make it less costly to break into the power biz. “Smart” technologies and improved control systems give us greater ability to manage and monitor power usage. In light of these technological changes, many energy reform advocates see decentralization and competition as the best cure for what ails the electric industry.

Legal scholar William Boyd wonders if we should be so quick to abandon the publicly regulated utility. He points out that the model enables planning, coordination, and funding for innovation and experimentation. These characteristics will be critical for achieving a low-carbon future. The free market may be unable to deliver the kind of rapid, systemic change that we need. Boyd is not starry-eyed about the problems afflicting the regulated utility sector, but argues that the current model is worth repairing. In his eyes, the “key task is to recover the public in public utility” and to revitalize our conception of public interest regulation.

Others, meanwhile, look in the opposite direction from market competition, and ask if an publicly-owned electric utility might be better situated to serve the public interest. There are many examples around the country of successful government-run water, electric, and even telecom utilities. In the wake of PG&E’s wildfire scandal and ensuing bankruptcy, both the California and the city of San Francisco have both considered taking over all or part of the company as a wholly public enterprise. Motivated by concerns about climate change, Boulder, Colorado has long been engaged in an effort to replace its service from a for-profit Xcel subsidiary with a municipal power authority. Proponents of public power point argue that it provides more accountable local control, keeps more money local, and gives citizens a say over whether to use greener power sources.

Still others suggest a middle way. Community choice aggregation, which incorporates aspects of both local control and customer choice, has recently become popular in various states. This model leaves the current utility structure in place but allows communities to select who generates their power. Meanwhile, a coalition of California mayors expressed interest in turning PG&E into a customer-owned private cooperative. Such distribution cooperatives have a long history of reliably serving underserved constituencies in the rural parts of the U.S.

What are we to do with this broad array of choices? Fortunately, most utility regulation takes place at the state level, so the future of power provision is an ideal test case for states as the “laboratories of democracy.” Technical, financial, and environmental factors vary from region to region, so a one-size-fits all approach is likely unworkable. Instead, different states and cities can and should try different models in an effort to find the public interest anew. Because, while reformers may disagree about the best path forward, the recent scandals clearly highlight a major weakness in the status quo. If a regulated monopoly cannot be safeguarded against corruption and capture, it will be subject to both the bureaucratic inefficiency ascribed to government regulation and the profit-seeking whims of the private sector. In short, such a system will provide the worst of both worlds.

Conor J. May is a rising 3L at Colorado Law

Keeping Up with Climate

By GWC Senior Fellow and Advisory Council Chair, Marilyn Averill

Much has been written about the interaction between COVID-19 and climate change.  Proposals abound to build back better, to change societal norms, and to preserve pandemic-induced reduced consumption.  At the same time, many of us are concerned that we are losing time and momentum for progress on implementing the Paris Agreement.  Many resources are available to help us to keep in touch with what is happening while we are sheltering at home or beginning to creep back into our normal lives.  Here are a few resources that will help you keep up with international climate news without leaving home.

UNFCCC.  The United Nations Framework Convention on Climate Change (UNFCCC) postponed its June meetings of its Subsidiary Body for Science and Technological Advice and Subsidiary Body for Implementation (SBs) (they have been tentatively rescheduled for November).  But the secretariat was concerned about losing traction on climate issues, so it scheduled ten days of online events called June Momentum for Climate Change.  A few sessions were for parties (countries) only, but most were available to anyone who wanted to participate.  Some of the sessions were outstanding.  You can review the program and click on individual sessions at:

https://unfccc.int/process-and-meetings/conferences/june-momentum-for-climate-change

Other UNFCCC constituted bodies are holding regular meetings and conducting intersessional work online.  For example, the Paris Committee on Capacity Building (PCCB) held its fourth annual meeting remotely on 22-25 June.  The agenda, documents, and presentations for PCCB4 are available at:

https://unfccc.int/pccb/pccb-meetings-and-documents#eq-5

The Adaptation Committee is holding an ongoing set of virtual Technical Expert Meetings on Adaptation 2020 (TEM-A) through October.  The focus this year is on “education and training, public participation and youth to enhance adaptation action.”  Capacity building and youth engagement have been major UNFCCC issues this year.

Materials for other meetings are available through the UNFCCC website.

Future of COPS.  The Conference of the Parties (COP) includes all the countries that are parties to the UNFCCC.  The COP typically is held for two weeks in November or December.  Because of the pandemic, COP 25, which was scheduled to be held in Glasgow in November 2020, has been rescheduled for November 2021 in Glasgow.

The Paris Agreement was approved in 2015 and went into effect on 4 November 2016.  The rulebook to facilitate implementation is almost complete.  Some people have wondered if annual COPs are still necessary, or whether time and energy should be redirected towards implementation.  Others are interested in tying climate change more closely to other major problems, such as those addressed by the United Nations Sustainable Development Goals (SDGs).  And still others want to establish connections across ministries, regimes, and sectors, both domestically and internationally.  The pandemic has provided opportunities to think through possible new directions in more detail. 

A plethora of reforms has been proposed.  One stands out.  The Wuppertal Institute for Climate presented a series of four webinars in June addressing “It’s the end of the COP as we know it.”

You can view the webinars here.

Other Webinars.  Sheltering has produced a remarkable number of webinars relating to climate change.  It can be hard to keep up with all the online events listed separately on CLIMATE-L  (see below).  For a weekly selection of climate webinars, check out Climate Online and sign up for their newsletter:

Listservs.  Consider signing up for the International Institute for Sustainable Development’s ( IISD ) excellent CLIMATE-L listserv on all-things climate.  It’s a great way to keep up with new studies and events, and to keep from feeling lonely while you are staying at home.  It also provides regular lists of available climate-related jobs.  IISD offers many other environmentally related listservs, as well.  They also publish Earth Negotiations Bulletin (ENB), which provides daily summaries of major international environmental negotiating sessions.

https://enb.iisd.org/email/

The pandemic has disrupted our lives in so many ways.  But don’t let it weaken your interest in action on climate change.  Use the resources listed above to keep yourself engaged, and be ready to take action when the world opens up again.

Marilyn Averill is a Senior Fellow with the Getches-Wilkinson Center. She previously served as an attorney for the U.S. Department of the Interior, where her primary clients were the U.S. Fish and Wildlife Service and the National Park Service. Marilyn’s research interests focus on international environmental governance, the politics of science, and the ethical implications of environmental issues, primarily in the context of global climate change.

Seventh Annual Martz Winter Symposium

A Green New Deal for Public Lands?

Friday, February 28th, 2020

The Seventh Annual Clyde O. Martz Winter Symposium will probe a provocative set of questions about the past and future of one third of our nation’s lands.  Challenges to be addressed include: Are current public land laws and management regimes sufficient to tackle the overwhelming problem of climate change?  Do the public lands serve all of the public, including historically marginalized groups?  Should public lands management be integrated into the broader ecological, economic, and social fabric?  How should public land managers address changing visitation and access patterns in the age of the internet and social media?  Our panelists come from diverse backgrounds, professions, and points of view, and they will address these questions in visionary and practical ways. The conference is for all who enjoy our public lands as well as those who want to learn more about them.

Event Video

2020 Ruth Wright Distinguished Lecture

Public Land Policy after the Trump Administration:
Is This a Turning Point?

Thursday, February 27, 2020

Professor John Leshy

University of California-Hastings College of Law

Since the Civil War, a strong, bipartisan consensus has developed in support of the national government’s owning large amounts of land. Over the last half-century, that consensus has favored managing more and more of these lands primarily for inspiration, education, human-powered recreation, and environmental conservation.

The Trump Administration has moved aggressively to open previously protected public lands to fossil fuel and other forms of intensive development and to roll back protections in a host of other ways, including starving and shrinking the agencies that manage these lands.
 
Is this the harbinger of a fundamental change in the trajectory of public land policy, or is it an aberration? Professor Leshy will be drawing upon material from his much-anticipated book, forthcoming from Yale University Press, with the working title Our Common Ground: A History of America’s Public Lands.

Event Video