The Risk of Curtailment under the Colorado River Compact

New Study of Colorado River Cutback Risks by GWC Senior Fellow, Anne Castle and University of New Mexico Water Resources Program Director, John Fleck

With a credible risk that declines in the Colorado River’s flow could force water curtailments in coming decades in Colorado and the rest of the Upper Colorado River Basin, communities need to think about what kind of insurance is needed, a new report argues.

A repeat of drought conditions seen in the first decade of the 20th century could nearly empty the Upper Basin’s primary storage reservoirs. “While the risk of that happening remains low in the short-term, the threat increases substantially over time, and regardless of the time frame, the consequences could be dire,” said Anne Castle, the study’s lead author – a loss of economic activity, jobs, income, and community benefits in cities and rural communities that depend on the water. “The chances that my house will burn down are low, but the result would be disastrous. So I buy insurance,” said Castle, a senior fellow at the Getches-Wilkinson Center for Natural Resources, Energy and the Environment at the University of Colorado Law School. “The question is – What kind of insurance against the risk of Colorado River water curtailment should water users buy?”

Castle will be discussing the study at the Upper Colorado River Basin Water Forum Nov. 13 at Colorado Mesa University in Grand Junction.

The report, written with University of New Mexico Water Resources Program Director John Fleck, connects the latest hydrology and climate science with an analysis of the legal framework governing the Colorado River’s allocation.

Drawing on water supply analyses by the U.S. Bureau of Reclamation and independent experts, the study finds that the risks are significant:

• A recent Bureau of Reclamation analysis found that a repeat of the conditions of the drought of the early 2000s could, in fewer than five years, drain Lake Powell to levels at which it would be unable to generate electricity.

• Water supply simulations commissioned by a group of western Colorado water agencies found a greater than one in three chance that flows could drop so far in the next decade that the ability of the Upper Colorado River Basin states – Colorado, Utah, Wyoming, and New Mexico – to meet their legal obligations to deliver Colorado River to downstream users in Nevada, Arizona,California, and Mexico would be in grave jeopardy.

Those hydrologic realities collide with legal institutions designed nearly a century ago that allocated far more water than the river has, without clear rules for handling sustained low flows.

The result, the report found, is significant risk of shortfall combined with uncertainty about whose water supplies would be cut, and by how much.

This suggests a need to prepare now, so communities are not blindsided, the report’s authors write.

Options include:

• Negotiating legal agreements among the Colorado River Basin states to clarify rules for sharing shortages

• Setting up voluntary, temporary, compensated water conservation programs now to bank conserved water as a hedge against risk

• Waiting – not taking proactive action, but rather letting the chips fall where they may, an option the authors warn is high stakes poker

The authors caution against litigation against the Lower Basin states of Arizona, California, and Nevada as a path to settling the issues. Such litigation could drag on for many years, creating uncertainty and hindering the types of collaborative agreements that have kept the River sustainable so far, they argue.

Full paper: The Risk of Curtailment under the Colorado River Compact

Risk of Curtailment Summary

The Law of the River, 2019

By Colorado Law Graduates Eric Dude, Marisa Hazell, and Shelby Krantz

The Law of the Colorado River seminar, taught by Professor Sarah Krakoff, is a deep-dive into the American West’s most important resource – the water of the Colorado River. We studied every aspect of the river and its management; the Colorado River Compact, the two major dams at Glen Canyon and Boulder Canyon, Tribal water rights and the Tribes’ involvement in the development of the modern Law of the River, how management is changing in response to aridification in the West, and more. Unlike many other law school courses, the bulk of the course is not about legal arguments in appellate courtrooms. Instead, it focuses on how the stakeholders who rely on Colorado River water have negotiated throughout the last century to prop-up an allocation scheme that promises too much from a river that provides less water every year. To cap off the seminar, we took a two-week trip down the Colorado River’s mainstem through the entire Grand Canyon from Lee’s Ferry to Pearce Ferry…

When our bus pulled up to Lee’s Ferry on May 7, we caught our first glimpse of the river we had been studying so closely for the last four months. It was clear and frigid-cold. Just hours before our arrival, this water had been released from the bottom of Glen Canyon Dam, where all of the silt the river carried from the Colorado Plateau settled behind its seven-hundred foot high concrete walls. We settled into our boats (wooden dories) and began our course west as the Kaibab Limestone—the layer of rock that makes up the rim of the Grand Canyon—rose out of the water. For the next two weeks, we would watch this layer rise thousands of feet into the air above us, as each successive layer beneath it added new colors and textures to our canyon landscape.

These two weeks on the river are, in many ways, reducible to some meaningful numerical figures:

14 days;

277 river miles;

Over 100 rapids;

5 dory boats;

5 guides;

12 newly minted JDs;

3 rising 3Ls;

2 conferred LLMs;

2 Colorado Law professors;

1 Public interest lawyer

2 Colorado Law alumni donors.

But the reducible parts of this trip only provide the barest outline of what we experienced. The story is more satisfyingly filled in, as are most stories in life, by the uncountable:

Waiting to climb behind a limestone waterfall onto a moss-clad ledge to jump into a pool of warm, cerulean spring water, and the cheers that erupted as each of us did so in turn (including one epic belly flop);

The deep relaxation brought on by a warm, sunny lunch break after hours of shivering through cold wind and rain;

The ease of existing in a world not overburdened by connection—two weeks of cell-service-less bliss—and the creativity that flowed from the space created;

The validation of solidifying connections with old friends and creating connections with new ones, and the sweet exhaustion of hours of belly-laughing and late-night sing alongs;

The panic of realizing on Day 8 that we might run out of beer—and the calm when it all worked out;

The pure joy of riding through rapids with successive twenty-five-foot waves, and that of making it through unscathed;

The incredibly fleeting feeling of cleanliness and refreshment after braving a cold bath in the river;

The pride we felt during our river-side graduation ceremony, and the gratitude of sharing it intimately with important mentors and close friends; and, importantly,

The pure awe of experiencing a new and unmatched beauty around every bend in the river through the entire length of the Grand Canyon.

Each person on this trip, undoubtedly, could add pages of their own to this list. While some of these feelings are shared among us, each person took their own important lessons from the trip. Some of us were inspired to add new routines to our personal lives to emulate what we enjoyed on the river—more time dedicated to journaling, reading, or quiet contemplation. Others were encouraged to get back out for more river trips, more climbing, more hiking. And we each felt driven to prioritize time outside away from the grind in our careers in order to ground ourselves and recharge.

The academic insights were just as numerous and uniquely impactful. Spending the entire semester learning about the history of policy and law on the Colorado River fundamentally changed the experience of rafting down the canyon from merely an immersion in nature to an immersion in history and culture. To us, the trip wasn’t just through Grand Canyon National Park; it was through the heart of a river that has always sustained the people of the Southwest. 

As we traveled from Lees Ferry to Pearce Ferry, it was inspiring to run the same rapids as John Wesley Powell and know the hardship his crew faced in the very same spaces. It was humbling to see petroglyphs from centuries ago and picture the tribes that inhabited the canyon before colonization, while at the same time understanding the law and policy that pushed them onto reservations to facilitate western expansion and public lands development. And as our guides read the rapids based on water flows from the Glen Canyon Dam and told stories of higher levels, we understood which government forces were impacting the water we floated on and how the communities that depended on energy and water from the dam were growing because of it (for better or worse).

Watching the moon rise over canyon walls each night, we pictured those before us who had done the same: American Indian tribal members, adventurers, policy makers, and fellow rafters. Each with their own perspective on the canyon and how it should be utilized or preserved. All who had, in their own way, influenced how we were experiencing the canyon. Rafting with this context allowed us to understand how we, as students passionate about protecting spaces like the Colorado River and the Grand Canyon, would be a part of this long connected history. That is, how our future careers are not just about the issues of today or the present state of nature, but build on the fabric of the past and the changes that the law has brought to these landscapes.

Through three years of law school and grueling office internships, our work can feel very detached from the communities and spaces the law impacts. Somewhere along the way, we all get caught up in the culture of law school and the compulsion to always do more, and we lose touch with our base motivations. Many of us came to law school because we wanted to solve problems for communities and environments with compassion and insight, not merely engage in the rote application of legal rules. Rafting the Grand Canyon with the knowledge we gained through this seminar will allow us to do just that. And in the grandeur of billions of years of history displayed through striking rock layers, the trip made us feel a little less small in the world and more connected to it all.

At mile 210 of the Grand Canyon, Professor Krakoff gave us our commencement speech in our chair circle on the beach while Andy, one of our guides, played “You’re Gonna Make Me Lonesome When You Go” on his guitar. In that moment, it was impossible not to feel grateful to have come to Colorado Law and been given the opportunity to have this experience as a capstone to our legal education and a catalyst to our legal careers. The trip gave each of us a renewed sense of wonder and purpose. It is the ideal energizing experience to take with us into our careers. We gained perspective on how we wanted to prioritize our lives to ensure they will be meaningful—in our legal careers, as advocates, and as people. We will forever remember the inspiration of the trip, the amazing connections we made together, and the joyful adventure we shared. rful

Attacks on the Antiquities’ Act (2019 National Preservation Law Conference)

Professor Mark Squillace Luncheon Keynote

Professor Mark Squillace

The 2019 National Preservation Law Conference was held on Tuesday, June 25 in Washington, D.C. The conference is put on by the National Trust for Historic Preservation in partnership with Georgetown University Law Center. This intense one-day summit provided a highly focused look into historic and cultural preservation law, highlighting recent and influential developments in the field. Attendees were able to gain knowledge and skills to effectively advocate and champion key preservation issues. This year’s speakers were all national legal experts on a wide variety of topics, including federal level regulations, legal tools for the built environment, religious properties, the Antiquities Act, and climate change.

Professor Mark Squillace from the University of Colorado Law School dove deep into attacks on the Antiquities Act from our past, present, and postulates on the future impacts on this important legal precedent.

Attacks on the Antiquity Act (Video)

#PreservationForum

“An Odd Way to Read a Preemption Statute:” The Atomic Energy Act, Virginia Uranium, Inc. v. Warren, and the Dine Natural Resource Protection Act

By Colorado Law Student Erin Hogan

The history of uranium extraction within Navajo Nation is fraught with environmental and cultural conflict and controversy. Thousands of Navajo men worked in the uranium mines from 1944 until 1989, and the largest spill of radioactive material occurred on Navajo land in 1979. In 2005, the Navajo Council passed the Dińe Natural Resource Protection Act (DNRPA), banning all uranium mining and processing on Navajo land. Although Virginia Uranium, Inc. v. Warren, currently before the Supreme Court, questions the ability of state and local governments to regulate uranium, the DNRPA is firmly grounded in tribal sovereignty, economic concerns, and traditional Navajo law. It should remain on solid legal footing even if the Court accepts the plaintiffs’ claim that the Virginia state ban is preempted by the Atomic Energy Act (AEA).

The AEA gives the federal Nuclear Regulatory Committee (NRC) regulatory authority over the production and handling of source materials, byproducts, and waste. This includes uranium processing, storage, and transportation, the construction and operation of nuclear facilities, and in situ leaching, a technique which combines initial processing steps with extraction. However, the NRC has exclusive power only in the field of radiation safety; states are free to regulate such activities for “purposes other than protection against radiation hazards.” In the landmark Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission (PG&E), the Supreme Court held that this allowed California to regulate nuclear power plant construction for economic reasons, declining to second-guess its stated legislative purpose. Uranium mining, with the exception of in situ leaching, is regulated solely by tribal, state, and local governments, regardless of purpose. The NRC has expressly disavowed any authority over uranium mines, repeatedly affirming that their interest starts only when the ore leaves the ground.

The DNRPA mirrors this statutory scheme by distinguishing between uranium mining and uranium processing. It is thoroughly grounded in traditional Navajo beliefs, economic considerations, and principles of tribal sovereignty rather than radiation safety concerns. It starts by defining the “wise and sustainable use of . . . natural resources” as “a matter of paramount governmental interest . . . and a fundamental exercise of Navajo tribal sovereignty.” It then anchors the uranium ban in traditional Navajo law and culture: “the Fundamental Laws of the Diné . . . warn that certain substances . . . that are harmful to the people should not be disturbed, and the people now know that uranium is one such substance, and therefore . . . its extraction should be avoided as traditional practice and prohibited by Navajo law.”

Finally, the DNRPA discusses economic considerations, the ground on which the Court upheld California’s regulations in PG&E, finding that:

the mining and processing of uranium ore . . . has created substantial and irreparable economic detriments to the Nation and its people in the form of lands lost to permanent disposal of mining and processing wastes, lands left unproductive and unusable . . . surface water and ground water left unpotable . . . Navajo workers who lost thousands of person-years . . . as a result of their mining-induced illnesses and deaths . . . . The Navajo Nation Council finds that there is a reasonable expectation that future mining and processing of uranium will generate further economic detriments to the Navajo Nation.

These “detriments,” while linked to health and safety, are measurable in purely economic terms. It would be difficult to disentangle “radiation hazards” from economic, environmental, and cultural considerations, but the text of the DNRPA states its valid and permissible purposes without reference to radiation.

As the Court recognized in PG&E, “inquiry into legislative motive is often an unsatisfactory venture. What motivates one legislator to vote for a statute is not necessarily what motivates scores of others.” A hunt for improper motive would be neither appropriate nor useful in this context, but it is just such an analysis that a mining company has asked the Supreme Court to undertake in Virginia Uranium, Inc. v. Warren.

In 1978, the largest known uranium deposit in the United States was discovered in Virginia, sparking citizen safety concerns and inspiring an indefinite state-wide moratorium on uranium mining.The Virginia ban does not extend to processing, transportation, or storage. No language about purpose or reference to radiation hazards appear in the ban as currently published, which states that “permit applications for uranium mining shall not be accepted by any agency of the Commonwealth . . . until a program for permitting uranium mining is established.” Such a program has yet to be established. Virginia Uranium claims that the ban is preempted as an impermissible attempt to regulate radiation hazards. After Virginia Uranium’s losses in the district and appellate courts, the Supreme Court heard oral argument on November 5, 2018.

As the NRC lacks authority over mining, legislative purpose would seem irrelevant: the AEA prohibits only regulation of enumerated activities for “protection against radiation hazards.” Virginia Uranium, however, claims that the ban on mining is a de facto ban on uranium processing and storage, both NRC-regulated activities.It further argues that the reference to “purpose” in AEA compels the Court to determine whether the “real” legislative purpose for the statute was permissible, and suggests an analysis of text and legislative history to decide whether it would have been enacted absent an impermissible concern with radiation safety. The argument was met with evident skepticism from the majority of the Justices, who expressed concern with the “methodological, epistemological, and federalism questions” raised by this approach to preemption.

The United States as amicus curiae advocated a more moderate approach, arguing that Virginia need only articulate a plausible, non-preempted rationale for the ban but had failed to do so. Were the Court to adopt this theory, it would likely be a narrow ruling; many states regulate uranium only under their general mining statutes, which have clearly non-radiation-related purposes. The DNRPA, however, is specific to uranium and goes farther than the Virginia ban by explicitly barring both mining and processing.

While at first glance it seems vulnerable, the DNRPA could likely stand under either preemption theory. It addresses mining and processing separately, indicating an intent to prohibit uranium mining as an independently undesirable activity. Even if the uranium processing ban was successfully challenged, the mining prohibition could stand, as it is specific to an activity unregulated by the NRC. Further, the long and well-documented history of uranium processing on Navajo land provides a strong economic argument against milling and tailings storage. The clear instruction of Dińe Natural Law to “to respect, preserve and protect” the land and other living beings is still more compelling.

As discussed above, the DNRPA articulates plausible, non-preempted purposes as required under the United States’ theory. Even should the Court adopt the petitioners’ pretextual analysis, the DNRPA rests on a firmer legal and historical base than Virginia’s ban. The environmental and economic impacts of uranium extraction on the Navajo Nation are sadly well-established, and questioning the validity of Dińe Natural Law would be misguided. Both text and the legislative history of the DNRPA strongly suggest that it would have been passed absent radiation hazard concerns. It should withstand preemption challenges, and could offer guidance to other tribal, state, or local governments seeking to regulate uranium extraction.

Erin Hogan is a rising 2L at Colorado Law and a Staff Writer for the Colorado Natural Resource, Energy, and Environmental Law Review

How the United States is Combatting International Deforestation Through Trade

By Colorado Law Student Stone Macbeth

For years, illegal deforestation and logging has consistently wiped out natural habitats and indigenous peoples’ communities, put various animals around the world in danger, and decreased the world’s oxygen levels. As noted in a report issued by the Convention on International Trade in Endangered Species and Wildlife, illegal deforestation and logging is still a major enterprise in countries such as Russia, Brazil, and Honduras. Some countries around the world, such as Australia and members of the European Union, have started to implement legislation and policy to try and restrict the flow of illegally obtained lumber—and the United States is in the fight.

Conservation in the United States began with the philosophy of Henry David Thoreau and the science of George Perkins Marsh in the mid-nineteenth century. Amateur taxonomy and public interest in preserving wild animal populations for hunting, along with an interest in growing agriculture, gave rise to a progressive movement. Part of this movement culminated in 1900, when Iowa Congressman John Lacey proposed the Lacey Act, which President William McKinley signed into law shortly thereafter. At first, the Lacey Act was only concerned with the domestic trade of wildlife and fish that had been illegally taken, transported, possessed, or sold across state lines. The law was primarily aimed at curbing the introduction of potentially invasive bird species. While these ideals are still important to the American people, Congress has more recently utilized the Lacey Act to expand wildlife protection.

Although the Lacey Act has been amended several times—in 1969, 1981, and 1988—Congress’ most recent amendment in 2008 extended the Act’s protection to plants. The Act now encompasses an expansive collection of plants, including “any wild member of the plant kingdom, including roots, seeds, parts or product thereof, including trees from either natural or planted forest stands.” By expressly including trees, the 2008 amendment also prohibits importation of any goods or lumber derived from illegally obtained trees.

The few cases litigated under the 2008 amendment have relayed a strong and important message to American companies and those abroad—the United States will not tolerate the importation of illegally obtained lumber. One of the more famous cases is commonly known as “the Gibson raid.” In 2011, Gibson Brands Inc., a respected American guitar company known for making high quality guitars, had one of their warehouses raided by the Department of Justice and the Federal Bureau of Investigation. The FBI had been notified that Gibson was building guitars using illegally obtained ebony from Madagascar, and illegally-obtained wood from India. Gibson officials denied ever knowing that the company was involved in the international trade of protected lumber, and the case ultimately ended in a settlement. As reported by Andrew Revkin at the New York Times, Gibson agreed to “pay a $300,000 fine, make a $50,000 contribution to the National Fish and Wildlife Foundation, and forfeit wood valued at $261,000 seized in a prior 2009 government raid on its Nashville facilities.” While having to pay over $350,000 in fines and contributions may only be a drop in the bucket for a company as large as Gibson, this case was a major wake-up call to American companies. The willingness of the United States’ government to go after such a longstanding and respected American company showed that the 2008 Amendment to the Lacey Act was going to be taken seriously.

While the Gibson raid certainly caused a stir, the most substantial crackdown came in Kiken v. Lumber Liquidators Holdings, Inc. According to the Department of Justice, Lumber Liquidators was convicted of violating the Lacey Act for illegally importing protected wood from China to build hardwood flooring in 2016. The wood it imported into the United States was manufactured in China but had been illegally obtained from an area of Russia that provided habitat for the “last remaining Siberian Tigers and Amur leopards in the world.”The amount of timber Lumber Liquidators imported was substantial. In total, it was required to pay “$13.5 million, including $7.8 million in criminal fines, $969,175 in criminal forfeiture and more than $1.23 million in community service payments.” Additionally, the government imposed a five-year probation term on the company allowing customs inspectors and state officials to consistently monitor the company’s operations. This case was the first time that the United States government was able to show how strong the Lacey Act could be when enforced. Since this case, there has been no other substantial litigation regarding illegally imported lumber.

The United States has shown that it takes illegal logging and deforestation very seriously. The amendment of the Lacey Act, along with the litigation pursued under its provisions, has sent a very direct message to American companies—illegal logging will not be tolerated. We can only hope that the implementation of the Lacey Act will remain strong, and that the United States will continue to hold its companies to a higher standard. The world needs its trees, and the 2008 amendment to the Lacey Act is a small but substantial step in ensuring it keeps them.

Stone Macbeth is a rising 2L at Colorado Law and a Staff Writer for the Colorado Natural Resource, Energy, and Environmental Law Review

Managing an Administrative Disaster: Establishing FEMA as an Independent Agency

By Colorado Law Student Hunter Knapp

On February 13, 2019, Brock Long resigned his post as FEMA administrator after a convoluted chain of command caused friction between him and Secretary of Homeland Security, Kirsten Nielsen. This resignation comes in the wake of failed responses to Hurricane Maria, Hurricane Harvey, and the wildfires that struck California in 2018. A key player in these failed responses is President Trump, whose obsession with building a border wall threatens to redirect vital funding Congress appropriated to help these communities rebuild. He is now attempting to accomplish this through an emergency declaration under the facade of national security. This diversion of funds occurs would merely be the latest example of national security concerns compromising the ability of the United States to respond effectively to natural disasters. If Mr. Long joins other former FEMA directors in calling for the restoration of FEMA as an independent agency, perhaps we should not be surprised.

President Carter recognized the need for a unified directorate with a clear objective to address natural disaster preparedness and response when he consolidated the nation’s emergency response services into FEMA as an independent agency in 1978. This apparatus functioned adequately until 2002 when Congress passed the Homeland Security Act in response to September 11th. This Act broke FEMA down and inserted the various functions into the new Department of Homeland Security.

This new approach to emergency response faced its first major test when Hurricane Katrina struck the Gulf Coast in 2005. It failed miserably. Despite receiving early warnings of the magnitude of the approaching storm, communities were tragically underprepared for the consequences. Intense winds and flooding destroyed hundreds of thousands of homes, including most of New Orleans. The federal response to this disaster was disorganized, underfunded, and insufficient. Rebuilding ravaged areas took far longer than necessary, and the most vulnerable people paid the greatest cost. The massive failure captured the media landscape, and compelled Congress to pass the Post-Katrina Emergency Reform Act (“PKERA”) in 2006.

The PKERA reconsolidated the nation’s emergency response capabilities into an agency called FEMA, but that agency remained under the DHS umbrella. This solution allowed lawmakers to avoid a political crisis but did not solve the structural issues that define United States emergency response. The institutional flaws continued to cripple American natural disaster response over the next decade. Several past FEMA administrators warned that the incorporation of natural disaster response into DHS compromised the mission of the agency. They emphasized the likelihood that FEMA’s funding and importance would diminish in favor of counter-terrorism objectives. These predictions appear prophetic when looking back at the natural disaster preparedness and response record in the years following the PKERA.

After President Trump assumed office in 2017, the Gulf Coast experienced one of the most active hurricane seasons in U.S. history. Hurricane Harvey flooded the Houston area and Hurricane Maria led to the deaths of thousands of Puerto Ricans. Both of these areas were left in desperate need of help from the federal government. Yet in the aftermath of the devastation, President Trump told his chief of staff and budget director that he did not want a single dollar going to aid Puerto Rico. Instead, President Trump requested that the money be sent to help Texas and Florida instead. This could have been motivated by alleged misuse of funds by the Puerto Rican government, as President Trump claimed. Another possibility is that the President hoped to use those funds as a political tool to win the votes of two states that will likely be crucial battle grounds in the 2020 election. A third possibility is that President Trump’s decision to withhold funds from a U.S. territory predominantly populated by people of Latinx descent was motivated by racism. Regardless of his motivation, this attempt to withhold federal support from vulnerable Americans illustrated the need for a disaster relief apparatus insulated from political interference.

The cannibalization of FEMA’s budget and threat of political interference cannot be addressed with FEMA’s current administrative structure. To remedy this, Congress should pass legislation to remove the nation’s natural disaster emergency response from the DHS umbrella and reestablish FEMA as an independent agency. This new independent agency should be led by a board of bipartisan commissioners with fixed terms who are only removable “for-cause”. FEMA’s budget should be expanded, and explicitly protected from executive interference.  These changes will empower FEMA to accomplish its critical objective of properly preparing vulnerable communities to persevere through natural disasters.

Hunter Knapp is a rising 2L at Colorado Law and a Staff Writer for the Colorado Natural Resource, Energy, and Environmental Law Review

With More Clean Energy Comes More Responsibility

By Colorado Law Student Robert DeMarco

For the past several decades, the United States has taken steps to develop more clean energy in the face of climate change, which has promoted developments in solar, wind, water, and geothermal power production. The Business Counsel for Sustainable Energy annual report from 2018 shows that eighteen percent of all electricity in the United States came from renewable sources, up three percent from 2016, and double the 2009 amount (nine percent). The report also showed that sixty-two percent of the renewable power sources constructed in 2018 were solar and wind projects, likely aided by the falling cost of developing solar and wind power facilities. This progress is welcomed and applauded by many but may pose unforeseen environmental risks. .

While developing more renewable energy is a key component of fighting climate change and reducing power plant emissions, impacts to animal species and their environments must be considered. For example, the development of wind energy farms across the Midwest has sparked a conversation over the protection of bird and bat species from wind turbines. The American Bird Conservancy (ABC) estimates that hundreds of thousands of bird and bat species suffer casualties from collision with wind turbines, with an additional eight to fifty-seven million casualties from collisions with power lines associated with wind farms. While the ABC notes that wind turbines cause significantly less deaths than traditional coal power plants, the development of more wind farms poses a substantial threat to birds and bats in the United States.

Additionally, energy developers must be mindful of possible legal violations associated with these deaths. For instance, the Migratory Bird Treaty Act of 1918 protects over 1,000 bird species from being harmed or killed. Furthermore, takings of species protected by other laws, such as the Endangered Species Act and the Bald and Golden Eagle Protection Act, may result in criminal penalties.

The potential impact of wind turbines on bird and bat species in the continental United States sheds light on a broader concern surrounding renewable energy development. The development of offshore wind farms along the Atlantic and Pacific coastlines demands careful, strategic planning that must occur before deeming large scale development projects environmentally friendly. While the United States has been constructing wind farms on land for several decades, planning large-scale offshore wind farms is a more recent development. As of 2017, wind farms were responsible for only six percent of the total electricity generation in the United States. Adding wind farms several miles offshore will increase the grid’s capacity to harness wind energy without occupying land that can be put to other uses. Several states, particularly in the Northeast, have recognized this potential and implemented legislation to require the future development of offshore wind energy. The Block Island Wind Farm, off the shore of Rhode Island, was the first outgrowth of these initiatives and the first offshore wind facility in the country. Block Island has been contributing to Rhode Island’s clean energy mix since December 2016, with five turbines and a maximum output of thirty megawatts.

As states look to develop more offshore wind farms, they must be mindful of the impacts that development could have on the ocean and its inhabitants. While migratory bird routes remain a familiar conflict to developers, there are many other species in the ocean that might be impacted by offshore wind farm construction and operation. For example, the North Atlantic Right Whale is a critically endangered species that migrates, feeds, and breeds up and down the Atlantic Coast, where many offshore wind farms will be built. Only about 300 of these whales remain in the Atlantic region. Sound, as well as collisions with infrastructure and ships, may cause accidental takings during construction. While state and federal plans for offshore wind development mention the potential impact of development on whales and other species, endangered or not, both the Marine Mammal Protection Act and Endangered Species Act provide more stringent protection. These laws further the maintenance of sustainable populations of certain marine mammals, and accordingly require incidental take permits for non-fishing activities, including renewable energy development.

The safeguards currently in place can be successful in protecting specific species and mitigating losses, but they fail to address the larger impact that offshore wind development has on ocean species and their behavior and habitats. In the context of the North Atlantic Right Whale, construction and development can impair their ability to communicate through low-frequency sounds. Additionally, it is unclear how large-scale development of offshore wind farms will impact breeding and migration cycles of whales. Even though the Marine Mammal Protection Act and other statutes aimed at protecting ocean species may help mitigate some impacts, many consequences remain unexamined. Legislation should be enacted to ensure that vibrations from construction and operation do not interfere with whales’ health or communication. This can include restricting construction timing to ensure that vibrations do not impair breeding or migration cycles, or imposing stricter limitations on developers to ensure that operation noise from offshore wind farms remains below a harmful level.

Legislation could also require that development applications include comprehensive monitoring plans for protected species known to exist near proposed sites. Not only would this requirement help protect vulnerable ocean species and ecosystems, but it would also highlight the significance of protecting species prior to development. This could also promote technological innovation and competition among wind farm developers, giving agencies the power to choose developers that will perform best while making the strongest effort to protect ocean species. Applying stricter limitations on developers would help establish affirmative compliance and limit costs on state and federal agencies involved with the planning process. For the above reasons, legislators should ensure that the protection of ocean species and habitat remains a priority in the development of offshore wind farms during the planning, financing, and permitting, construction, and operation phases of any project.

Robert DeMarco is a rising 2L at Colorado Law and a Staff Writer for the Colorado Natural Resource, Energy, and Environmental Law Review

Colorado River: January 31 Drought Contingency Plan Deadline Looming-And the Shutdown Isn’t Helping

By Tarah Bailey, GWC Graduate Fellow

The last two decades marked the longest period of drought in the Colorado River’s recorded history, and water demands in the last decade exceeded available supply.  With thirty-five to forty million people in the U.S. currently relying on water from the Colorado River Basin, its waters are over allocated at a rate above mother nature’s ability to replenish.  As such, water supplies are steadily dwindling.  Lake Mead, the largest reservoir in the country and an important emergency reserve supply, is now only 38% full and Lake Powell is just 43% full.

The water users of the Colorado River Basin include seven states – Colorado, New Mexico, Wyoming, and Utah (the Upper Basin states) and Arizona and California (the Lower Basin states) – and Mexico. The river is managed under numerous compacts, federal laws, court decisions and decrees, contracts, and regulatory guidelines collectively known as the “Law of the River.”  Under the Law of the River, the Upper Basin states must deliver a certain amount of water to the Lower Basin states each year. Due to the drought in the last couple decades, water users have relied on Lake Mead and Lake Powell to compensate for water shortages and to maintain the water delivery requirements the Law of the River demands. But with Lake Mead and Lake Powell steadily depleting, the basin state users must curb consumption and figure out a way to limit usage. 

The Interior Department’s Bureau of Reclamation (“Reclamation”) oversees the Colorado River and enforces the Law of the River. Reclamation has spent more than three years urging the states to adopt plans that would reduce water consumption.  According to Anne Castle, former Assistant Secretary for Water and Science at the U.S. Department of the Interior and Senior Fellow at the GWC, the 2007 Interim Guidelines – which control the amount of water released from the Glen Canyon Dam (Lake Powell) – “are not sufficient to deal with the reality of the current extended drought, the possibility of further reductions of flows, over appropriation of the basin in general, and structural deficit in the lower basin.”  To address these ongoing issues, the basin states have been developing Drought Contingency Plans (DCPs) in response to the ongoing historic drought and to manage Lake Powell and Lake Mead in a more sustainable manner.

In December 2018, Reclamation’s Commissioner Brenda Burman called on the seven basin states and water entitlement holders in the Lower Basin to finalize and execute their DCPs by January 31, 2019. The DCPs would require some users to reduce their use – something seemingly impossible to the many farmers and irrigators reliant on the river’s waters in the region.  Because 70% of the river’s water is used by and for the basin’s irrigators, curtailing consumption must come at a price.

In Arizona, a desert state that has consumed beyond its allotted amount for years, farmers in Pinal County are not happy. The January 31 deadline is rapidly approaching and Arizona still does not have an approved plan.  Arizona is the only state where the DCP must be approved by legislation.  Although the DCP has been a top priority since legislators reconvened on January 14, they have only three weeks to approve it.  Out of the seven basin states, Arizona is struggling the most to figure out which water users should see cutbacks first and by how much. Farmers, cities, homebuilders, and tribes are all fighting for more.

The DCP will determine how Arizona’s water users will share the cut of at least 512,000 acre-feet of water out of the 2.8 million they use per year.  But to offset these cutbacks, funding for groundwater infrastructure is required. Arizona Gov.  Doug Ducey and the Central Arizona Project board, which oversees the 336-mile long water delivery system in central Arizona, have each pledged $5M to help fund groundwater infrastructure for Pinal County farmers.

Another issue holding up Arizona lawmakers is the current federal government shutdown.  While Reclamation remains funded through the shutdown (because of its involvement with energy and water appropriation), some of its legal counsel were furloughed. So local Reclamation managers in Arizona are trying to move forward without their counsel – a difficult feat due to the complexities involved.  But Reclamation recently reached an agreement with the Department of Interior to pay for a few of the solicitors and lawyers to come back to work to help hash things out.  With their lawyers on hand, hopefully Arizona’s DCP will be approved in time.

As for the other basin states, all other DCPs are approved.  Arizona remains the lone holdout.  If Arizona misses the January 31 deadline, Reclamation has stated it will step in and take control of matters to prop up Lake Powell.  What that means for the states is that they would lose control over the destiny of their Colorado River waters.  No one wants that.  

As the January 31 deadline looms, the fate of the Colorado River remains uncertain and the pressure is on Arizona lawmakers to make quick decisions.

Tarah Bailey (Colorado Law ’18) is a Graduate Fellow at the Getches-Wilkinson Center for Natural Resources, Energy and the Environment

Environmental and Economic Justice in Distributed Solar Energy Investment By Victoria Mandell, The Mandell Law Firm LLC

Low-income individuals can benefit the most from the bill savings from solar energy, yet have the least direct access to distributed solar energy, often at their own economic expense. Distributed solar energy rebates are funded by customers from every income bracket, but are distributed in a regressive manner. In Colorado energy utilities’ retail customers, no matter their income, contribute a small portion of their energy bill to pay for renewable energy. This payment from customers of all income levels funds Colorado utilities’ investments in renewable energy, including both small-scale distributed solar energy and large-scale wind farms. While all customers benefit from renewable energy investment, the historical allocation of utility funding for small-scale, customer-owned solar generation raises environmental and economic justice concerns. This is because the rebates from utilities to financially support distributed, customer-owned solar generation have mostly benefitted higher income households. Nationally, low- and moderate-income households represent 40% of America’s population, but less than 5% of all solar customers. While low-income customers are contributing to the rebates for these solar panels through their bill payments, higher income customers receive the direct financial benefit.

Not only is this unfair and in violation of the principle of proportionality in rate design, it is also important because of the significantly greater impact of solar energy ownership when reducing a low-income customer’s utility bill in comparison with a higher income customer’s energy bill. This is because low-income customers’ pay a disproportionately higher amount of their income on their energy bill, referred to as “energy burden.” Energy burden on the poor is significantly higher. When energy burden is reduced for low-income households, they receive a proportionally greater economic benefit. Money becomes available for other basic necessities such as food and medicine, meaningfully improving quality of life.

In addition to the larger impact on personal low-income household budgets, this economic benefit also translates into comparatively greater social and environmental benefits. The “bang for the buck” for each rebate dollar paid from ratepayer-funded renewable energy for low-income customer solar ownership is more cost-effective because of the greater public policy benefits. In Colorado, the inability to pay energy bills is a primary cause of homelessness for families with children. Lowering energy burden reduces health and safety risks for Colorado families and allows families with children to be more secure in their homes. Utility bills are one of the main reasons people borrow from predatory Payday lenders, exacerbating the cycle of poverty. Low-income communities tend to have disproportionate exposure to pollution from electricity generation with the accompanying greater damage to health, such as respiratory illnesses. Environmental justice is served when solar energy is installed in underserved communities. Equitable access to distributed solar funding is more sustainable because it provides a long-term asset to Colorado’s low-income families that can generate economic benefits for twenty years or more, thus ensuring a much higher return on investment than bill assistance. Furthermore, all ratepayers’ benefit from low-income access to solar because utilities’ costs for bill non-payment, such as bill assistance, bad debt write-offs, and disconnects are reduced.

The Colorado Public Utilities Commission has the opportunity in a forthcoming rule-making proceeding, anticipated to begin in early 2019, to correct this historical inequity in solar energy funding and reap these many public policy benefits. The Commission should also consider the most cost-effective, best practices for low-income customers and communities, such as coordination with energy efficiency programs as well as providing job training opportunities at solar installations. Jurisdictions like California and Washington DC are using solar installations as a vehicle for workforce training for low-income and underserved communities, thus further expanding the public policy benefits of environmentally and economically fair solar policy. Additionally, Colorado’s new governor, Governor Polis has a fresh, valuable opportunity to provide leadership integrating environmental justice into energy policy decisions.

Victoria Mandell (Colorado Law ’88) is a Colorado attorney specializing in energy regulation and data privacy compliance. She is also the President and Chairman of the Board of Directors of GRID Alternatives Colorado, Inc., a regional non-profit installing solar energy for low-income populations.

Colorado Law Professors Help Take a Stand for Public Land By GWC Graduate Fellow Tarah Bailey

Two University of Colorado Law School professors submitted amicus briefs in litigations challenging the Trump administration’s recent actions shrinking Bears Ears National Monument and Grand Staircase Escalante National Monument.

President Clinton, pursuant to his authority under the Antiquities Act, established the Grand Staircase-Escalante National Monument on September 18, 1996. Under the same authority, President Obama established the Bears Ears National Monument on December 28, 2016. Both monuments span across a portion of the state of Utah and protect a vast area of illustrious canyons and rock lands filled with objects of scenic, cultural and scientific interest.

On April 26, 2017, President Trump called for a review of all national monument designations made since January 1, 1996, where the designation covers more than 100,000 acres or “where the Secretary of Interior determines that the designation or expansion was made without adequate public outreach or coordination with relevant stakeholders.” This review resulted in President Trump shrinking the size of both the Bears Ears National Monument and the Grand Staircase-Escalante National Monument.

Bears Ears National Monument consists of lands held deeply sacred to five American Indian tribes in its region. It is a land filled with spiritual, cultural, scenic and scientific interest. If you’ve ever visited the area, then you’ve likely been struck by its majestic twin rock formations in the shape of a bear’s ears. Similarly, Grand Staircase-Escalante is a landscape filled with significant ecological objects, including medicinal plants, springs and ceremonial sites. Both areas contain extremely sensitive cryptobiotic soils. National Monument status of these areas ensures the soil, cultural, scenic and scientific objects are preserved and protected from the destruction that would occur from the extraction of natural resources.

Colorado Law Professor Sarah Krakoff and Harvard Law School Professor Bob Anderson – both legal experts in America Indian law and public lands law – co-authored an amicus brief in the Bears Ears litigation. They argue that the Antiquities Act only gives the President authority to designate national monuments, not to revoke or reduce their boundaries.

 

They contend that Congress did not delegate to the President the power to revoke or shrink national monuments, and that public lands policy, federal land management schemes, legislative history, and the plain text of the Act supports this. Since passing federal land management laws like FLPMA, MUSY, and NFMA, Congress moved away from presidential discretion over public lands and instead, delegated land management authority to on-the-ground governing agencies equipped to handle rapidly changing conditions of lands. Without delegated authority from Congress to make such sweeping land grabs, the President lacks authority to shrink the boundaries of monuments. The brief is currently before the U.S. District Court for the District of Columbia as the court considers whether to grant the Trump administration’s motion to dismiss.

Additionally, Colorado Law Professor Mark Squillace and University of Nevada Las Vegas Law School Professor Bret Birdsong, co-authored the amicus brief in the related case regarding the Grand Staircase-Escalante National Monument. Squillace endorses the arguments put forth by Krakoff and Anderson in the Bears Ears amicus brief, and argues that shrinking Grand Staircase-Escalante would leave the various sensitive cryptobiotic soils and ecological resources vulnerable to mineral exploration, motor vehicle use, foot traffic, and the taking of geochemical rock and mineral specimens. Moreover, Squillace explains that Congress adopted and ratified the boundaries of the Monument with the passage of the Utah Schools and Lands Exchange Act of 1998. Trump’s reduction of the boundaries directly conflicts with an act of Congress and thus, he is without legal authority to reduce the boundary size. Squillace’s brief is also before the U.S. District Court for the District of Columbia.

Aside from the reductions illegality, the briefs argue that reducing the size of Bears Ears and Grand Staircase-Escalante National Monuments would jeopardize thier many scientific, scenic, and cultural interests – the very things the Antiquities Act was meant to protect. The President’s actions are ultra vires – beyond his Presidential powers.

The Krakoff and Anderson full brief in the Bears Ears litigation can be found here.

The Squillace and Birdsong full brief in Grand Staircase-Escalante litigation can be found here.

Tarah Bailey is a 2018 graduate of Colorado Law and the Getches-Wilkinson Center Graduate Fellow.