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

We Could “Green” Our Economic Comeback, But Will We?

By Colorado Law Student Kevin Bernstein

Air pollution first fell in China as the country locked down in response to the novel coronavirus, COVID-19.  As the pandemic spread, shutdowns spread across the globe, and air quality improved dramatically.  These improvements were largely attributable to reductions in passenger air travel, reductions in industry operations, and far fewer commuters on the road.  Everyone is anxious to get our economy back on track and return to a sense of normalcy. But normalcy means a rapid increase in greenhouse gas emissions.  The massive disruption of the pandemic has opened a temporary window – providing a view to a cleaner world and the opportunity to ask ourselves, can we create a new normal? 

The death toll of the coronavirus is tragic, even more so because many deaths were avoidable. But according to the World Health Organization, four million people die prematurely from ambient air pollution every single year.  Knowing that significant amounts of pollutants can be avoided through changes in human behavior and existing technologies, aren’t those four million premature deaths a year equally tragic?

There are important efficiency lessons to be learned from the pandemic that could help shape a sustainable future.  While not all office workers enjoy or can work from home, many employees and employers are seeing the benefits.  Transitioning a portion of the office workforce to even a partial work-from-home workforce would have significant effects.  In addition to a reduced number of commuters, employers could reduce their square footage of office space – saving money and decreasing their carbon footprint.   Consolidating office space leaves more room for additional businesses and a diversified economy.  Reduced commuter traffic in metropolitan areas means cleaner air for urban dwellers and the need for fewer heat-trapping parking lots which could be repurposed for public spaces.

Business travel accounts for about 16% of all American long-distance travel (National Household Travel Survey 2002).  Modern video conferencing has allowed businesses to continue operations during the shutdowns, drastically reducing related travel.  Similarly, remote learning across the entire education spectrum has highlighted the necessity of stable high-speed internet connections.   Accordingly, one of the ways to capitalize on these socio-economic trends and strengthen the economy is to prioritize the development of reliable internet access across the entire country much like we brought electricity to America through the Rural Electric Administration.  Even with reliable internet access, remote work/learning can be frustrating, but without a stable connection, it can quickly become impossible.  Often hitting rural or lower-income families the hardest.  Many schools and businesses will want to resume face to face meetings, but the pandemic has introduced virtual options to many who would have previously dismissed the idea out of hand.

But as air travel picks back up, now is a time to consider committing to buying carbon offsets.  A minimal investment (e.g. ~$8.oo for a round trip flight from Denver to San Francisco) can help to internalize the cost to the environment of air travel (https://thegoodtraveler.org).  Certain industries, like air travel, are harder to decarbonize.  Therefore alternative, although imperfect, solutions allow individuals and corporations to achieve net-zero emissions.  The Good Traveler is just one of many non-profits that offer carbon offsets, but they do so in an effective and easy to use way.

These are just a few examples of permanent behavioral changes that allow our economy to recover while improving public health and quality of life.

America’s energy mix continues to transform rapidly.  Wind and solar power are becoming dominant sources of electricity.  While renewable industries have suffered significant job losses due to the pandemic, solar and wind electricity generation in the U.S. outpaced coal electricity generation for multiple consecutive days in late April 2020.  Abroad, the UK and Portugal have reported multiple weeks of zero coal-fired electricity generation (https://www.calvert.com/impact.php?post=as-utilities-enable-work-from-home-economy-renewable-energy-provides-reliable-power-&sku=35722).  While these achievements are partially attributable to reduced energy demand from COVID-19 shutdowns, they demonstrate how much renewable energy has become integral to our grid and the possibility of a rapid transition from fossil fuels. 

As intermittent sources of power such as solar and wind make up more of our energy mix, improved storage capabilities are paramount.  And like most technology, as storage capacity increases, the cost will decrease – leading to a more robust electrical grid.   And because battery storage projects have a relatively small physical footprint, they tend to be relatively simple to gain permit approval for development. 

Distributed solar, battery storage, and microgrids provide the resilience needed for communities to rebound after natural disasters, which we know are becoming more frequent and severe due to climate change.  While we have not witnessed significant electrical disruptions due to COVID-19, Hurricane Maria in Puerto Rico shows communities are more resilient when they can generate their power locally.  Homes with rooftop solar power were able to begin reconstruction earlier because many of their other imminent needs were already taken care of and they didn’t have to wait for transmission lines to be rebuilt.

The benefits of choosing renewable energy are dramatic for grid stability and economics.  These benefits compound as they enhance air quality by reducing the consumption of fossil fuels.  Renewable energy and improved batteries pave the way for increased electric car ownership – providing a cheap reliable source of fuel for vehicles while providing zero-emission transportation choices for those who cannot or choose to not work remotely.

America is in a historic moment of awareness.  We face a climate crisis, lost ground on environmental and public health protections, a massive federal deficit, significant economic hardship, systemic social injustice, and hardened political divisions that threaten our democracy.  The demands we see on the streets to ensure equality under the law are inspiring disruptions to the status quo. 

So the question remains  – we know we can green our economic comeback, but will we?

Kevin Bernstein is a rising 2L at Colorado Law


Global Water Matters Podcast Episode 2: Insights from the Colorado River

University of New South Wales-Sydney Global Water Institute

The second episode of the GWI Global Water Matters podcast features Anne Castle, member of the Water Policy Group and Senior Fellow at the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment at the University of Colorado. In conversation with producer Gretchen Miller, Anne discusses the management and future of the over-allocated Colorado River Basin, its many competing interests, her personal experiences with the river and what it was like to meet Barack Obama during her time as Assistant Secretary for Water and Science at the U.S Department of Interior.

Anne Castle is a senior fellow at the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment at the University of Colorado, focusing on western water policy issues.  From 2009 to 2014, she was Assistant Secretary for Water and Science at the U.S. Department of the Interior where she oversaw water and science policy for the Department and had responsibility for the U.S. Bureau of Reclamation and the U.S. Geological Survey.  While at Interior, Castle spearheaded the Department’s WaterSMART program, which provides federal leadership on the path toward sustainable water supplies, and was the driving force behind the 2010 federal MOU addressing sustainable hydropower.  Castle also provided hands-on leadership on Colorado River issues and was the Chair of the Glen Canyon Dam Adaptive Management Work Group and a champion of Minute 319 between the US and Mexico.  Castle is a recovering lawyer, having practiced water law for 28 years with the Rocky Mountain law firm of Holland & Hart.

Global Water Matters Podcast Episode 2: Insights from the Colorado River

A Green New Deal for Public Lands?

By Colorado Law Student Noah Stanton

We are facing a national public health crisis that should be pulling the nation together. Yet the effects of and reactions to COVID-19 track the fault lines of class, race, region, and cultural affiliation that predate this crisis and will, absent concerted national and collective effort, be exacerbated by it. These same themes—how can we create shared spaces and common futures from unequal contexts?—dominated our recent Martz Symposium. We share this recap of the conference to provide inspiration and hope in these challenging times.

Land was a central theme at this year’s symposium. That may seem natural given the program’s theme, “A Green New Deal for the Public Lands?” But oftentimes, in legal discussions of public lands, the lands themselves get lost in the thicket of regulatory overlays. Here, land—and its meaning to different communities—took centerstage, as speakers throughout the day investigated and reconceptualized the lands that our federal government manages. Academics, community organizers, and advocates presented their visionary ideas of the value contained within our public lands, as well as the ways in which we can protect these lands.

The day got started with a powerful critique from Alan Spears of the National Park Conservation Association. Spears dissected an idea often embraced at public-lands conferences: Wallace Stegner’s famous assertion that our national parks are “America’s best idea.” To Spears, touting national parks as our best idea alienates people who find other ideas far more impactful—important ideas like abolition, “one person, one vote,” or de-segregation. So while Stegner’s slogan might serve as a rallying cry for white environmentalists, Spears suggests that it fails to resonate with communities of color.  In this and other ways, the messaging about national parks creates “a land apart.” Families work hard and create homes throughout America, but our messaging suggests that “history, culture, and narrative are things that happen elsewhere.”  

Spears’ critique began to draw a throughline that would connect many of the day’s talks: Land is so much more than the geologic features or waterways that may appear on it; land truly derives value through shared experiences, culture, traditions, and legacies. For Spears, this meant we should not consecrate national parks as lands inherently more valuable than others.

Oriana Sandoval’s presentation picked up on this theme. Sandoval is the CEO of the Center for Civic Policy, an organization that works to bring the voices of New Mexicans into policy decisions in that state. Sandoval spoke of barriers of access to public lands for her mostly Latinx and under-resourced constituency. She explained that these barriers do more than exclude folks from beautiful lands. They prevent people from connecting with a culture and heritage of which those lands are an integral part.

Her bold vision is to reconnect New Mexicans with their public lands and to use those lands as an integral part of the state’s transition away from its current oil-and-gas economy. Sandoval sees outdoor recreation as a key economic driver for a post-extraction New Mexico, and she has worked to ensure Latinx youth help form this economy. As part of this work, her organization helped secure microgrants to provide kids with outdoor equipment and better access to their public lands, all in the hopes that it leads to a more inclusive recreation economy in the future.

Later, Professor Rebecca Tsosie’s inspiring talk expanded on the theme even further. To Tsosie, lands are “one and the same” with the people who inhabit them. Land contains vast wealths of knowledge that people perceive and translate, and this knowledge weaves itself into the cultures and traditions that make humans who we are. Tsosie posited that if we are to create an ethic of sustainability among our public lands, we need to develop an idea that ties the earth to its inhabitants.  This was one evil of federal Indian policy: it divested peoples of their lands and therefore separated them from this knowledge and culture. She also argued that federal policies continue to miss the mark. For instance, federal wilderness protection—the highest level of protection that we have for public lands—applies only to lands that are completely devoid of humans.

All of these talks presented conceptions of land that transcend geology and topology. Several speakers also generated ideas on ways for the law to recognize the true value of our lands. For instance, Professor Tsosie hailed the Bears Ears designation—and its efforts to establish tribal co-management of the monument—as a move towards acknowledging the presence of people on public lands and recognizing their use of the land.  Later in the day, Colorado Law’s own Professor Sarah Krakoff critiqued the notion that public lands are some distant medium for us to act on and project upon. She called for reconceptualizing these lands as our collective commons. 

Additionally, Professor Jessica Shoemaker of the University of Nebraska delivered a defense, of sorts, of property law as an adaptive tool that can respond to this changing notion of our lands.  She recounted past development of “flexible legal categories” of property—ones that go beyond the “fee simple absolute”—and touted the ability of property law to accommodate new and progressive uses of land. Current federal management of public lands (as well as Indian lands) shows a lack of flexibility, perhaps springing from a fear among land managers of relinquishing any control. But new, adaptive designations of property are possible and have developed before.

The ideas presented at this year’s symposium were fresh and innovative. Voices usually absent from these spaces were amplified and gave insight into the connection between our lands and people, tradition, culture, and more. The 2020 Martz Symposium provided an invigorating opportunity to think outside the “box” of our traditional environmental frameworks and turn a more critical eye to our land-management practices.

Noah Stanton is a rising 3L at Colorado Law.

Event videos available below: