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:

Now Accepting Applications: Getches-Wilkinson Water Fellows

We are pleased to announce we have launched a national search for the inaugural pair of Getches-Wilkinson Water Fellows.

The Getches-Wilkinson Fellows Program is a first-of-its-kind initiative designed to train the next generation of leaders in natural resources fields. The intensive two-year program will immerse the two Fellows in the real world challenges of water law and policy. The Fellows will address critical issues affecting western watersheds, conduct reform-oriented research on pressing issues, and interact with public and private sector leaders to inform policymaking.  The Fellows will be actively engaged in water law reform in the public interest and will hone their leadership, communication, advocacy, and research skills. The overarching objective is to create a matchless educational and mentoring experience that will leapfrog their careers and prepare the Fellows to become leaders in their chosen practice areas.

“Fellows will get training from the most experienced people in the field, and then bring diverse voices and creative energy to the region’s most pressing natural resource challenges,” said Sarah Krakoff, Moses Lasky Professor of Law.

The Colorado River provides water and electricity for people throughout the basin states, including residents of Denver, Salt Lake City, Los Angeles, Phoenix, Tucson, Las Vegas, and Albuquerque. It irrigates over 3 million acres of crops and pasture; provides abundant recreational opportunities for rafting, fishing, boating, and hiking; and serves as habitat for a multitude of fish and wildlife species, including several endangered native fish. Increasingly, demand for this important natural resource is outstripping supply.

“In Colorado and beyond there is a rising need for thoughtful policy initiatives at all levels of government to manage water usage throughout the Colorado River Basin,” Krakoff said. “The GWC sees an opportunity to help address this unmet need, and similar ones throughout western watersheds, while training the next generation of outstanding and diverse leaders in water law.”

The Getches-Wilkinson Fellows program was initiated by a generous donation from David Bonderman – lawyer, business executive, and significant supporter of conservation initiatives. The matching funds came from an anonymous GWC supporter and the Water Funder Initiative – a collaborative effort to identify and activate promising water solutions through strategic philanthropic investments in the United States, starting in the West.

We are seeking exceptional lawyers early in their careers.  The job description, requirements and application instructions are available here: Getches-Wilkinson Water Fellows

For more information on the GWC Fellows Program contact Shaun LaBarre, GWC Deputy Director at shaun.labarre@colorado.edu or 303.492.1286.

The Climate and Diversity Crisis: Moving Toward a Global Awakening?

Please join us for the Boulder Faculty Climate Science and Education Committee, Spring 2020 Climate Lecture with Dr. Cassandra Brooks.

Tuesday, April 21st 5:00-6:30 p.m. (Webinar)  

University of Colorado Boulder
Boulder Faculty Climate Science and Education Committee
Spring 2020 Climate Lecture

The Climate and Biodiversity Crisis: Moving Toward a Global Awakening?
Dr. Cassandra Brooks
Environmental Studies
University of Colorado Boulder

Tuesday, April 21st
5:00-6:30
 
To participate remotely using ZOOM: Interested attendees should RSVP
to Jennifer.katzung@colorado.edu to receive the correct link and password

 
More information and event sponsors 

Calling all conservation innovators and risk-takers

On behalf of the Salazar Center for North American Conservation, CSU Author: Courtney Massey

In 2020, the planet is facing existential threats from human-induced climate change, species extinction, and rapid population growth – all of which contribute to increasing pressure on and fragmentation of rural and urban landscapes. At the same time, conservation efforts across North America that work to address these challenges are complicated and often inhibited by cultural, geographic, and political divides. In response, the Salazar Center for North American Conservation, based out of Colorado State University in Fort Collins, has created the Connectivity Challenge to support innovation in conservation and cross-boundary initiatives.

The Salazar Center is uniquely positioned to support and mobilize efforts working toward a healthier, more resilient future—and the Connectivity Challenge prize is just one of the ways it’s doing just that. With dozens of partners across research, practice, and policy – and the continued engagement and leadership of its founder, former Secretary Ken Salazar – the Center is poised to make big impacts in conservation.

Later this year, the Connectivity Challenge will award $100,000 to an interdisciplinary team working on an innovative approach to landscape conservation and connectivity in North America. The incentive prize encourages new, inventive approaches to solving big conservation challenges in North America and will support a team whose work removes barriers, catalyzes change, builds capacity, or scales impact. The Center especially encourages proposals that feature non-traditional applicants, ideas for projects that have legislative impacts, and/or teams that include policy makers. The application process for the prize has been designed to provide tangible benefits to all applicants (not just the winning team) by building a community of interest, providing expert feedback on all applications, and inviting finalists to participate in a pitch event at the Center’s annual symposium in Denver, CO in September 2020 that will provide the opportunity to present to peers and funding organizations.

Applications are open now for the Connectivity Challenge. The first step in the application process is for interested teams to register online by 5 p.m. MST March 19, 2020. For more information, and to register, visit ConnectivityChallenge.org. Additional questions can be directed to Dominique Gómez, Salazar Center Program Director, at dominique.gomez@colostate.edu.

About the Author:

Courtney Massey is the Office & Administration Intern at the Salazar Center for North American Conservation and splits her time between the Center and her master’s program in Conservation Leadership at Colorado State University. The Salazar Center supports and advances the health and connectivity of natural systems and landscapes of the U.S., Canada, and Mexico — whether they be urban or rural; working or wildlands; public or private. Its efforts are rooted in the recognition that healthy natural systems bolster climate adaptation and resilience, protect biodiversity, and sustain long-term human health. Its team envisions a future where healthy, connected landscapes in North America promote a rich diversity of life; play a critical role in responding to climate change; ensure the production of clean air, water, and economic benefits for human communities; and are conserved and protected across political borders throughout the continent.

Getches-Wilkinson Center to Launch Fellows Program With Focus on Water in the West

The Getches-Wilkinson Center for Natural Resources, Energy, and Environment (GWC) at the University of Colorado Law School has raised $840,000 to launch the GWC Fellows Program, a first-of-its-kind initiative that will train the next generation of natural resource leaders.

The program will formally begin in spring 2020 with the hiring of two full-time fellows, who will be selected through a competitive national search in early 2020. With a focus on the water and the Colorado River in particular, the first two fellows will address critical issues affecting western watersheds, conduct reform-oriented research on pressing issues in the field, and interact with public and private sector leaders to inform policymaking.

“Fellows will get training from the most experienced people in the field, and then bring diverse voices and creative energy to the region’s most pressing natural resource challenges,” said Sarah Krakoff, Moses Lasky Professor of Law and interim executive director of the Getches-Wilkinson Center.

The Colorado River provides water and electricity for people throughout the region, including residents of Denver, Salt Lake City, Los Angeles, Phoenix, Tucson, Las Vegas, and Albuquerque. It also irrigates over 3 million acres of crops and pasture; provides abundant recreational opportunities for rafting, fishing, boating, and hiking; and serves as habitat for a multitude of fish and wildlife species, including several endangered native fish. Increasingly, demand is outstripping supply for this important natural resource.

“In Colorado and beyond there is a rising need for thoughtful policy initiatives at all levels of government to manage water usage throughout the Colorado River Basin,” Krakoff said. “The GWC sees an opportunity to help address this unmet need, and similar ones throughout western watersheds, while training the next generation of outstanding and diverse leaders in water law.”

The GWC Fellows Program is supported by David Bonderman, a lawyer, businessman, and significant supporter of conservation initiatives, who contributed a matching grant of $420,000. Additional financial support came from an anonymous donor and the Water Funder Initiative, a collaborative effort to identify and activate promising water solutions through strategic philanthropic investments in the United States, starting in the West.

For more information on the new GWC Fellows Program, contact Shaun LaBarre at shaun.labarre@colorado.edu or 303.492.1286.

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