Charles Wilkinson Book Review – Our Common Ground: A History of America’s Public Land by John D. Leshy.

The book review is published by the Environmental Law Amicus, a project of Lewis and Clark Law School. Publication forthcoming in the Lewis and Clark Law Journal, Environmental Law.

“For more than a century, the arc of public land history has bent decisively toward the national government conserving more and more lands for conservation, public education, and inspiration.”  That is a strong statement.  Many people, including experts, who read this book will at first be taken aback by the expansive nature of Leshy’s findings; in reading the book, I was at first skeptical.  The myths that Leshy identifies had become part of the woodwork.  But the more I read, I realized how powerful and accurate his fully documented assessment is.

My expectation is that Our Common Ground will open up the history, current status, and future of the public lands to discussion and debate as never before.  This masterful volume will have staying power and we can expect it to be influential and constructive for generations to come.

Check out the full book review at:

Jacob Jose (Law ’23) Named 2022 Colorado Law Wyss Scholar

University of Colorado Law School student Jacob Jose (’23) has been named the 2022-2023 Colorado Law Wyss Scholar in U.S. Lands Conservation. Jose, a J.D. candidate, is Colorado Law’s fifth Wyss Scholar. The Wyss Scholars Program, awarded to one Colorado Law student each year, supports graduate-level education for promising leaders in United States land conservation. Recipients receive generous financial assistance to cover the full cost of one year of law school, as well as funds for internship opportunities, research assistance, and postgraduate support. Wyss Scholars learn the latest in conservation law and policy and apply that knowledge in careers at land management agencies and nonprofit conservation groups.

Jacob Jose has leveraged the formal education and practical experiences as a Colorado Law student to develop into a conservation advocate. Last summer, Jacob served as the Colorado Law Harrison Fellow, working with The Nature Conservancy researching and proposing transactional tools to produce water savings in the Colorado River Delta. Currently, he serves as a legal extern at the Fish and Wildlife Service, working to bridge programmatic and legal staff and to ensure conservation goals are achieved. This summer as part of the Wyss Scholar Program summer internship, he will work as a legal intern with the Department of Justice Environment and Natural Resource Division’s Wildlife and Marine Resource Section ensuring that the agencies fulfill their obligations to protect endangered species and their habitats. Jacob envisions these experiences will prepare him to one-day craft policy and apply legal tools to protect and sustain the land, landscapes, and natural resources, from which he draws inspiration.

In Memoriam, Justice Gregory J. Hobbs Jr.

Gregory J. Hobbs Jr.
1944 – 2021

The water and law communities across the West are mourning the unexpected loss of Justice Gregory Hobbs who died peacefully on November 30 with his wife and children by his side. A master of water law and jurisprudence, Justice Hobbs’ interests were as deep and varied as the western waters he knew so well.  He was a mentor, a teacher, a storyteller, an explorer, a photographer and poet.  A Renaissance man with unparalleled joie de vivre who will be sorely missed.

Justice Hobbs was a long-time supporter and treasured advisor to the Center. In his honor, we have gathered remembrances from friends of Colorado Law who knew him best. We include several of his photographs and poems that those of us who were lucky enough to be on his email list all treasure.

We hope this brings you some joy as we remember a remarkable man.

Please see our tribute here: http://bitly.ws/k8GX

The Water & Tribes Initiative: Tribal Water Rights & a Sustainable Vision for the Colorado River Basin

Tuesday, April 27, 2021

The 30 federally recognized tribes in the Colorado River Basin depend on the Colorado and its tributaries for a variety of purposes, including cultural and religious activities, domestic, irrigation, commercial, municipal and industrial, power generation, recreation, instream flows, wildlife, and habitat restoration. Twenty-two of these tribes have recognized rights to use 3.2 million-acre feet of Colorado River system water annually, or approximately 25 percent of the Basin’s average annual water supply.  In addition, 12 of the tribes have unresolved water rights claims, which will likely increase the overall volume of tribal water rights in the Basin. With the oldest water rights in the basin, tribes are poised to play a significant role in balancing water demand and supply and otherwise shaping the future of the region. Join leaders of the Water & Tribes Initiative in a conversation about the role of tribes and other sovereigns and stakeholders in advancing a sustainable vision for the Colorado River.

Water and Tribes Initiative Policy Briefs:
The Status of Tribal Water Rights in the Colorado River Basin

A Common Vision for the Colorado River System: Toward a Framework for Sustainability

Water and Tribes Event Video Now Available

CLE Accreditation Notice

Jacqueline Patterson, Director of the NAACP Environmental and Climate Justice Program, joins Professor Jacobs’s Energy Law and Regulation Class

Director Patterson joined students Natasha Viteri and Cynthia Vitale for a wide-ranging discussion of her work to rectify the unequal distribution of benefits and burdens around energy, environmental, and climate law and policy; on issues of intersectionality; on the false trade-off between justice and jobs; and on opportunities for our students and graduates to bring a justice focus to their work.

View the discussion here:
Jacqueline Patterson, Laws 6722-801 Energy Law and Regulation

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 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

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