MOOVING TOWARDS SUSTAINABILITY: ADVANCING PUBLIC LAND MANAGEMENT ONE ANIMAL AT A TIME By CU Law Student Jordan Vogel

The Grand Canyon Trust (“GCT”) modernizes public land management by grazing livestock and conducting scientific research. Public lands are rarely managed to account for their exhaustible and diverse resources. To protect these resources, the GCT conducts research as a federal lands grazing permittee and integrates science into federally mandated land-use planning.

Livestock grazing in the arid West is contentious, but its history is rarely debated. Before the middle twentieth century, homesteaders used public land in the West as a common resource to raise their livestock. Congress encouraged a race for public forage and the public rangeland was destroyed in less than century. To regulate and rehabilitate the depleted rangeland, Congress enacted the Taylor Grazing Act of 1934 (“TGA”). However, the TGA failed to fulfill these purposes because it created a rancher monopoly on public lands. Grazing permits were given to those who destroyed the range—so were the administrative decisions. The outcome was “home-rule on the range.”

Some forty years later, Congress passed the Federal Land Policy and Management Act of 1976 (“FLPMA”). FLPMA demands sustainable management of the public’s resources and tasks the Bureau of Land Management (“BLM”) and the Forest Service with land-use planning. Under FLPMA, managers are required to engage in an iterative (possibly adaptive) land-use planning process that protects diverse interests not commonly held by one person or group.

Environmental law scholars often argue that FLPMA’s language obligates land managers to remove livestock from public lands because overgrazing, or simply livestock grazing, destroys public land. The most common solution offered to curtail the problems caused by livestock on public lands is to remove or significantly reduce their numbers. Thus, scholars assert that managing millions of acres is simple after livestock are removed because they often destroy the land. However, there is no sign livestock grazing on public lands is going to stop anytime soon.

In the early 1990’s, the GCT pioneered a regulatory solution to problems caused by livestock management on public lands. Called “voluntary buy-outs,” the GCT acquired grazing permits in order to retire them permanently through land-use planning. Like litigation and lobbying, buy-outs had limited success. Attempts inevitably faced public scrutiny and for an organization trying to change popular opinion in a rural conservative region, this path did not bode well. The GCT moved away from its plan to retire grazing permits and instead established the Canyonlands Grazing Corporation to own livestock and graze on public rangeland.

The GCT uses its access to public lands to undertake research projects. The resulting site-specific learning outcomes result in information that can be integrated into a wide array of land management efforts. For example, pasture-scale research produces information to assess and develop rangeland health standards, which can be integrated into grazing permits and other land-use plans. Research can also be integrated into planning efforts such as BLM’s Resource Management Plans, which define management objectives for thousands of acres. Other planning efforts include the BLM Research Ranch Network, Southern Rockies and Desert Landscape Conservation Cooperatives, BLM Rapid Ecoregional Assessment, and Southwest Climate Science Center, among others.

The GCT accomplishes pasture-scale research relevant to public land conservation—and others can do so as well. For example, a group dedicated to protecting wildlife can engage professionals to determine wildlife forage requirements. Currently, there is no way to account for most of wildlife’s food supply because their competition with livestock is poorly understood. With research, however, this variable can be determined and communicated to public land administrators. In combination with federal laws that protect these natural resources, pasture-scale research can assure wildlife do not starve to death during critical times of the year.

The GCT embraces its role as a rancher to conserve public lands. Two of the biggest conservation threats to public lands are a lack of administrative resources and an abundance of poor science—both of which are not new problems. Fortunately, the GCT is addressing this problem head-on, taking advantage of access to public lands and federally-mandated planning processes to develop rangeland management. In total, federal law provides an opportunity to study federal public lands and communicate findings to public land administrators and the GCT utilizes this opportunity to conduct scientific research that modernizes public land management.

*Jordan Vogel is a rising 3L at Colorado Law.

Banning Plastic: A Local Effort By CU Law Student Austin Flanagan

In Colorado, approximately two billion single use plastic bags are used annually – less than 5% are recycled. Of those recycled, most are turned into low-value products that are not recycled again.

To combat the proliferation of plastic bags, ten cities in the state have passed plastic bag ordinances (see chart below). The plastic bag ordinances differ in severity. For instance, Crested Butte does not enforce a paper bag fee, rather requires they be made from at least 40% recycled materials. Plastic and paper bag fees vary from 10 cents to 20 cents a bag. The applicability of plastic bag bans varies from all retail stores in Telluride to grocers in establishments over 3,500 square feet in the Town of Carbondale (of which there is only one).

 

 

 

 

Bag ordinances have led to significant reduction in usage. For example, a report by Tischler Bise estimated that the bag fee in Boulder reduced usage by over 10 million bags a year.

Boulder and other cities in Colorado have recognized that plastic is a problem – a problem for the environment and for all living species. To understand why plastic is a problem, it is important to understand what plastic actually is.

Plastic is a crude oil derivative. Consequently, the manufacturing of plastic bags alone consumes over 12 million barrels of oil each year in the US (the average American consumes about 22 barrels of oil a year in total). Plastic is created by distilling crude oil into groups of hydrocarbons similar in molecular size and structure (called fractions). The smaller and lighter hydrocarbons are then combined with specific catalysts to create larger chains of molecules (either through a process called polymerization or polycondensation). Once cooled, these chains of molecules form plastic. In other words, plastic is a chain of similar hydrocarbon molecules (called polymers) linked together.

Plastic is particularly attractive to manufacturers because it is chemically inert – it does not react chemically with other substances. Fill a plastic container with gasoline or alcohol and the liquids will peacefully sit in the container. Plastic’s ability to play nice with other chemicals also means that it doesn’t decay easily. It is estimated that it takes 1,000 years for plastic to degrade, vastly limiting disposal alternatives.

A lack of sustainable disposal alternatives has left our streets, waterways, oceans and landfills plagued with non-degrading trash. Experts have predicted that by 2050 there will be more plastic in the sea than fish and studies have documented tiny fragments of plastic in Arctic sea ice and fertilizer being applied to farmland.

And the consumption is not slowing. The EPA estimates that the use of single-use plastic packaging, which is largely not recyclable, has grown from 120,000 tons in 1960 to 12.7 million tons in 2006. In short – plastic – the creation that revolutionized the world, is now suffocating the world.

Many other countries have recognized the threat plastic poses and taken action. Recently, Chile has banned the commercial use of plastic bags. In the U.K., plastic bag usage has dropped 85% (about 6.5 billion plastic bags) following their bag tax. Further, Prime Minister Theresa May announced plans to ban all sales of single-use plastics, including plastic straws and cotton swabs, from the country as soon as 2019.

So, what’s stopping Colorado and the U.S. from enacting similar large-scale initiatives? Politics.

With the backing of formidable lobbyist groups at plastic’s request, it becomes increasingly important for cities across Colorado and the rest of the U.S. to enact plastic policies at the local level. As seen in California’s recent plastic bag ban initiative, the plastic lobby will spend millions to fight large-scale plastic bag bans. Some cities, like Boulder, have realized the advantages of reducing plastic waste with local efforts like a city-wide plastic bag tax. Though local plastic bag initiatives will not dismantle 126 million dollars’ worth of lobbying power, they have proven effective in reducing plastic consumption.

Plastic bag ordinances are one way to reduce plastic consumption. Of course, consumers do not need their governments to step in and force habit modification. For every person that choses reusable bags over plastic the need for 312 plastic bags per year is eliminated. Likewise, for every person that choses reusable water bottles over plastic, about 167 plastic water bottles a year are eliminated.

Soon, consumers, equipped with the knowledge of how plastic effects the environment and human health, may make the decision for themselves to ban plastic from their lives.

*Austin Flanagan is a rising 3L at Colorado Law and a GWC Student Fellow.

Food for His Children: A Podcast About U.S. v. Washington By CU Law Student Eric Dude

The Getches-Wilkinson Center is proud to announce the launch of a student-produced podcast. The first series, Food for His Children, will tell the story of how a salmon fishing rights case reflects Pacific Northwest Tribes’ struggle—over the course nearly forty years—to reassert their tribal sovereignty by insisting the states uphold U.S. treaty promises.

On June 11, 2018, the Supreme Court decided Washington v. United States; colloquially known as “the Culverts Case.” The opinion is one sentence long: “The judgment is affirmed by an equally divided court.” An anticlimactic decision in a case that has been percolating through the federal court system since just before President Nixon’s resignation in 1974.

Colorado Law Professor Charles Wilkinson describes the Culverts Case as, “… a dream case! . . . You can’t pass up an opportunity like this for an extraordinary doctrine that’s so good for the Tribes, so good for the rivers, so good for the salmon, so good for every person in the northwest that you’ve just got to bring it.”

This hugely important case deserves the kind of attention given to other high-impact cases this term. The idea to create the podcast was born out of the realization that tribal sovereignty victories—and losses—are often buried beneath other headline-grabbing struggles for justice in this country.

We do not intend to address our show to only a legally trained audience. Our hope is to focus public attention on the legal history of Europeans’ colonization of American indigenous people. The sovereignty movement in Indian Country is uniquely entangled with the law. To understand the movement requires an understanding of the legal doctrine. To understand the law requires an understanding of the waves of federal Indian policy which have shaped Indian country over the last two hundred years. This podcast aims to provide that bridge.

Over the course of six episodes we will break down this case into all of its constituent parts. We will trace the legal underpinnings of our nation’s own colonialism back to early European contact and the “doctrine of discovery” that gave rise to the paternalistic plenary power doctrine. We will look at the radical movement to assert tribal sovereignty on the riverbanks of the Pacific Northwest. And we will explain how all of this is captured by a case about salmon fishing.

The June 11 decision involved only a small aspect of this sprawling case: whether the state of Washington had violated a series of treaties between the U.S. and a number of tribes by building and maintaining barrier culverts in critical salmon streams—land that was, for most of human history, rich fishing grounds for a number of tribes. Simply put, a culvert allows water to pass underneath a roadway. But it often makes it impossible for salmon to pass upstream during spawning season.

That is a problem for the Tribes and, consequently, the U.S.  In 1855, Isaac Stevens, governor of the then-territory of Washington, negotiated a number of treaties with the Tribes whose ancestral land was quite rapidly being occupied by white settlers from the east coast. Almost every Tribe bargained for a guarantee that cessation of their land would not mean diminishment of their right to fish where they had always done so: “The right of taking fish at usual and accustomed grounds and stations … in common with all citizens of the United States.” While each treaty may vary, that sentence is ubiquitous.

As one leader of the radical 1960s and 70s fishing rights movement, Nisqually tribal member Billy Frank, Jr., said, “We’ll die for that salmon.”

Despite the relative complexity of other provisions in the Stevens Treaties, that seemingly straightforward promise has made it before the Supreme Court on three separate occasions. First in 1905, the United States v. Winans case confirmed that the fishing rights were not subordinate to private or state interests: the Tribes could not be excluded from their traditional fishing grounds merely because a private party had acquired title to the land. Then in 1979 in Washington v. Washington State Commercial Passenger Fishing Vessel Association, the Court decided that the Treaties guaranteed the Tribes up to half of the annual salmon harvest on off-reservation watersheds. Hinted at, but never directly addressed, was an ancillary issue: did the Treaties impose a duty on the State of Washington to refrain from materially diminishing the annual harvest? The Tribes have always thought so.

The Tribes of the Northwest have been fighting for full recognition of their fishing rights for as long as the Stevens Treaties have existed. Before litigation began, tribal activists asserted their rights on the rivers of the Northwest. Billy Frank, Jr. was arrested by state police more than fifty times in the 1960s and 70s. He and other tribal activists felt the State was violating its Treaty obligation not only by excluding tribal members from their historical fishing grounds, but also by allowing the salmon run to significantly diminish over time. The state—and many of its citizens, including commercial fishermen whose livelihoods depended on being able to take a significant amount of fish from these runs—felt the Tribes were asking too much. It was in that heated and at times violent environment that the Culverts case began.

Beyond hard-bargained rights embedded in the Stevens Treaties, the outcome of this case implicates a broader, more nebulas question: what is the status of tribal sovereignty today? Federal Indian law jurisprudence is convoluted at best, and the relationship between tribal and state sovereignty might very well be the most difficult doctrinal developments to predict. Consequently, this case was closely followed by Tribes across the country, and lawyers who practice in the field.

Something we hope the podcast will convey, is that driving these important legal developments is a strongly felt cultural connection to salmon fishing.

John Sledd, an attorney at Kanji & Katzen P.L.L.C. who represented the Tribes, had this to say about the litigation, “I think the most moving, most powerful evidence in this entire case was testimony in the first day of the remedy trial from four tribal members about what it meant to them to go out on the water in their boats and be in the same place that their ancestors back to the dawn of time were fishing.”

In many ways, this is not our story to tell. So my co-host Rachel Calvert (Law ‘19) and I will share this story through the words of those who have lived it, with the help of our associate producers Marisa Hazell (Law ‘19) and Shelby Krantz (Law ‘19). From the attorneys who argued this case to the tribal members whose rights were at stake, we hope our listeners will be as deeply captivated by their stories as we are.

The first of the series will be released this fall, sponsored by the Getches-Wilkinson Center and through a partnership with the University of Colorado’s Radio 1190.  Radio 1190 Podcasts

Stay tuned.

Eric Dude is a rising 3L at Colorado Law and a GWC Research Fellow.

Colorado’s Responsibility to Protect the Public and the Environment from Adverse Impacts of Oil and Gas Development By GWC Senior Fellow Robert Hallman

Oil and gas (O&G) production in Colorado is growing largely through development of wells using hydraulic fracturing (pumping millions of gallons of water, sand and chemicals under high pressure) coupled with horizontal drilling at distances extending one to three miles from the wells. (The entire process in now commonly referred to as “fracking.”)

The search for the most productive areas increasingly involves proposals to locate multiple well pads in urban, suburban and exurban areas exposing communities to industrial-scale operations and related environmental, public health and safety, economic, and social impacts.

In response, various impacted parties have urged the Colorado Oil and Gas Conservation Commission (the Commission) to expand and/or strengthen its environmental, safety, siting, and public participation rules applicable to O&G projects; and many local governments have sought to ban or otherwise regulate fracking through home rule and/or land use/zoning authority.

The Law

The Colorado Oil and Gas Conservation Act (the Act) established the Commission to regulate O&G operations “so as to prevent and mitigate significant adverse environmental impact on the air, water, soil, or biological resources resulting from oil and gas operations to the extent necessary to protect public health, safety, and welfare, including protection of the environment and wildlife resources, taking into consideration cost effectiveness and technical feasibility.” It also directs the Commission to promulgate rules “in consultation with the department of public health and environment [DPHE]…, to protect the health, safety and welfare of the general public in the conduct of O&G operations.”

The Act further states that it is in the public interest “to foster the responsible, balanced development, production and utilization of… oil and gas… in a manner consistent with the protection of public health, safety and welfare, including protection of the environment and wildlife resources….”

The current Commission interprets the Act to mean it is required to balance a number of competing policies with protection of the environment, public health, and safety. The Commission’s “balancing test” has come under increasing scrutiny as environmental and safety issues have increased. The effects of climate change, explosions and leaks caused by pipelines, and a variety of community impacts associated with industrial-scale fracking have grown in number and intensity. In January, the Colorado Supreme Court agreed to review whether the balancing test satisfies the requirement to protect public health, safety and the environment in Colorado Oil and Gas Conservation Commission, American Petroleum Institute, and Colorado Petroleum Association v. Xiuhtezcatl Martinez, et al, 17SC297 (the Martinez Case).

The Martinez Case

In November 2013, a group of concerned citizens requested that the Commission adopt a rule to suspend issuance of permits for O&G projects until it determined, based on the best available science and independent third-party confirmation, that drilling can be done without impairing Colorado’s atmosphere, water, wildlife and land resources, adversely impacting human health, and contributing to climate change.

After holding a hearing and receiving an opinion from the Attorney General (AG) that found the proposed rule was beyond the Commission’s “limited statutory authority,” the Commission denied the request. A key reason was its conclusion that the proposed rule would require the Commission to “readjust the balance crafted by the General Assembly” under the Act. The Commission cited the AG’s opinion as “the primary basis of the Commission’s denial.”

Petitioners appealed and in February 2016, the Colorado District Court (Denver) affirmed the Commission’s denial. In March 2017, the Colorado Court of Appeals, in a two to one decision, held that the Commission erred in construing the Act to require a balancing test and reversed the District Court’s decision.

The Appellate Court did not address the merits of the proposed rule and remanded the matter for further proceedings consistent with its opinion.

The majority acknowledged the Act’s intent to foster “balanced development, but held that the statutory language, “ ‘in a manner consistent with’ does not indicate a balancing test but rather a condition that must be fulfilled.” Additionally, the majority found that the Commission’s obligation to prevent and mitigate significant adverse environmental impacts “to the extent necessary” to protect the public “evidences a similar intent to elevate the importance of public health, safety and welfare above a mere balancing….”

In May 2017, six of the seven Commission members voted to appeal the Appellate Courts ruling to obtain clarity. The Governor opposed an appeal, claiming the ruling was not a significant departure from current practice. The AG disagreed and sought review by the Supreme Court, arguing that the Appellate Court adopted a novel view of the Act by rejecting the Commission’s balancing test in favor of mandating that development be regulated subject to protection of the environment, public health, and safety.

The AG’s issue for review by the Supreme Court was stated as follows: “When the Commission engages in rule-making, is it permitted to disregard the Act’s policy of fostering O&G development in Colorado?” However, in granting review the Supreme Court reframed the issue asking whether the Appellate Court erred in determining that the Commission misinterpreted the Act as requiring a balance between O&G development and public health, safety, and welfare.

Discussion

Based on the plain language of the Act, its legislative history, and established principles of statutory construction, the Appellate Court’s decision appears sound. For example, the word “balanced” appears once in the legislative declaration and only modifies development, production and utilization of O&G. Balanced O&G activities are declared to be in the public interest only if they proceed in a manner consistent with protection of public health, safety and welfare, and the environment. Treating such protection as one of many policies to be weighed, as opposed to a mandate applicable to O&G operations is unwarranted. Moreover, the AG’s opinion relied on by the Commission to support a balancing test is conclusory at best and circular at worst, including citing the Commission’s use of the balancing test in a 2008 rulemaking to implement 2007 amendments to the Act for support of the balancing test in the Martinez Case.

In any event, no matter how the legislative declaration is interpreted, the Act’s substantive provisions, set forth above, establish a clear mandate for the Commission, in some cases in consultation with the Colorado Department of Public Health and Environment (CDPHE), to develop environmental, public health, safety, and welfare protections for O&G operations without reference to fostering development or any other competing policies.

This mandate authorizes the Commission—as the expert agency regarding O&G operations—to supplement and expand the array of requirements to protect the environment, and public health, safety, and welfare applied to the O&G industry by other responsible federal and state agencies. It would be unreasonable at best to conclude that, having granted such powers to the Commission, the legislature intended the Commission to weaken or even avoid adopting such measures that it deems necessary to “foster” development. It would also fly in the face of established environmental protection, public health and safety policy and practice.

Claiming, as Judge Booras does in her dissenting opinion, that the direction to the Commission in one substantive provision to consider cost effectiveness and technical feasibility supports a general balancing test is unpersuasive. Cost effectiveness and technical feasibility are required considerations only to the extent they relate to assessing proposed environmental protection measures and do not encompass the broad economic implications and “many other factors” (largely unspecified) that the Commission claims it must consider. Also, as the Appellate Court noted, the statutory direction for the Commission to prevent and mitigate environmental impacts “to the extent necessary” to protect the public and environment belies any intent to mandate a regulatory balancing test.

The AG and the Appellate Court minority opinion argue that the Supreme Court’s 2016 decisions determining that local fracking bans and moratoria were preempted by state law support the view that the statewide interest in developing O&G resources trump or at least must be balanced against any environmental, public health and safety concerns. This claim is baseless. The issue in those cases was the extent to which local governments can regulate adverse impacts of O&G projects. The court did not address the nature and extent of the Commission’s authority to promulgate regulations, including whether it is required to balance protections with fostering development.

Whatever the Supreme Court holds in the Martinez case, its decision may be significantly affected by the results of the November 2018 elections for Governor, AG, and state legislature, each of which has a variety of opportunities to impact actions by the Commission. Earlier this year, for example, a bill to codify the Appellate Court decision passed by the House of Representatives died in the State Senate.

Robert Hallman is a GWC Senior Fellow, and a Fellow at the Center on Global Energy Policy at Columbia University. The author includes his thanks to GWC Student Fellow – Griffin Hay – for his research assistance.

Navajo Generating Station: An Opportunity for Renewable Energy Project Finance By CU Law Student Gregor McGregor

Immensity is the abiding feature of the Colorado Plateau. During this year’s Advanced Natural Resources Seminar, our group was struck again and again by the sheer magnitude of the region’s features. Sleeping Ute Mountain, Shiprock, and Bears Ears greeted us outside Durango. These figures remained our companions on the horizon as we travelled vast distances through New Mexico, Arizona, and Utah. In a topography of deep canyons, sheer cliffs, and broad skies, the size of Navajo Generating Station (NGS) seems almost appropriate as it towers above Page, Arizona.

Everything about NGS is immense: its gas stacks reach 775 feet into the sky; it has a nameplate capacity of 2,250 MW; it uses 50,000 acre-feet (over 16 billion gallons!) of water annually; consumes 8 million tons of coal annually; and its construction included 800 miles of new 500 kV transmission lines. The NGS was constructed to pump 500 billion gallons of water uphill from Lake Havasu to Phoenix and Tuscon through the Central Arizona Project.

Yet, this 44-year-old vestige of the Plateau’s “big build-up” is about to fall prey to the changing economic realities. In 2015, the utilities who operate the plant voted to end operations. The cost of retrofitting the plant to meet environmental standards was no longer economic. A regional drop in the price of electricity on the spot-market, driven by cheap natural gas-fired electricity, meant the operators were losing tens of millions of dollars by continuing operations. Despite some investment group interest, and hearings on the Hill, the NGS will likely close in December of 2019.

Continued operation of the NGS is economically and environmentally unadvisable. Renewable energy development offers an alternative in line with the Navajo land ethic and conception of intergenerational responsibility. As Nicole Horseherder, a Navajo activist, said during hearings in Washington D.C., “burning coal is uneconomic and can no longer compete against cleaner, cheaper and far more culturally appropriate sources of power, such as the solar and wind resources that are plentiful on the Navajo Nation.”

Positive Developments in Indian Law for Investment

The closure of the NGS may also mean the closure of the Kayenta Mine, which is the dedicated fuel source for the plant. Together, these sites provide millions of dollars and between 700 and 3000 jobs to the Navajo and Hopi Nations. The environmental benefits from closing the plant and the economic advantages reaped by the utilities will come at a deep cost to the surrounding communities and tribal governments. However, developments in Indian law and the remaining infrastructure present are a major opportunity for renewable energy development.

Anyone who works in Indian law, energy law, or project finance knows how complex each of these fields are independently. This complexity only increases as you mix and match topics. What the NGS site provides, besides abundant solar potential, is a simplified route around many of the typical requirements for developing energy projects on Tribal lands.

Since 2000, Federal Indian law has been steadily empowering tribes to make their own decisions on leasing and developing their own lands. These acts permit tribes with adequate environmental and procedural safeguards to make contract and leasing decisions for themselves. Previously, leases were subject to approval by the Secretary of the Interior under the Federal Government’s trust responsibility to the tribes, adding as much as two years to the typical leasing process. 

The ability of the Navajo to approve their own leases greatly reduces the complexity involved in partnering with the nation to build a renewable energy plant. Because a renewable site does not implicate the removal of minerals, these leasing decisions are the major bureaucratic hurdle to project developers. Renewable energy also circumvents three major legislative acts and the up to eighteen Bureaus and offices within the Department of the Interior that are involved in mineral development on Indian land. All of this means reduced costs and more profitable future projects.

NGS Site Advantages for Site Control and Access, Permitting

Depending on the terms of agreement to reclaim the NGS site, the Navajo Nation will control access to the facility site, the electric railway to the Kayenta Mine, and lands encompassing the mine. The area is already developed with the necessary easements and physical infrastructure for future projects, and the Navajo Nation is a single entity to negotiate with. The water, and water-bearing infrastructure, needed to construct and operate a renewable energy site are already available, and transmission infrastructure already exists and capacity is secured by the tribe for 35 years in the current operating lease. These assets amount to $121 million of already-existing and necessary infrastructure for energy projects in the area.

Permitting is simplified by developments in Indian law, but also by the existence of the NGS. The current lease provides that the site will be remediated for industrial use. The much-less intensive infrastructure of a renewable energy-site is also unlikely to trigger any new environmental controls against the backdrop of 44 years of coal operation. Pre-existing transmission capacity is also a major boon to re-development. Generally, each locality transmission lines pass through must issue an individual permit before a company can approach the state utilities commission for final approval and begin construction. The Power Company of Wyoming has been working since 2005 to permit 730 miles of transmission for its own 3,000 MW wind project. This is added time and money a new project could avoid by using the NGS site.

A Chance for Reclamation and Future Development

When a project company seeks financing for a new facility at the NGS site, it will benefit in myriad ways from the prior existence of the coal plant. Reduced project and transaction costs will drive down the price of doing business, giving a project a better chance of profitability in the future.

A shift to renewable energy at the NGS site is unlikely to match the coal plant and mine in megawatts, jobs, or income. However, it does present an incredible opportunity for development companies and the tribes to reclaim economic benefits and contribute to a clean-energy future. The Navajo already operate the first tribally-owned solar facility, a 27.3 MW solar array, outside the town of Kayenta. Installing panels at the NGS site would continue Navajo leadership in renewable energy, and set conditions for increased energy development on tribal lands.

Gregor MacGregor is an active-duty Captain in the United States Army attending law school through the Funded Legal Education Program. All views contained in this post are his own and do not reflect the position of the U.S. Army, Department of Defense, or Federal Government of the United States. Gregor McGregor is a rising 3L at Colorado Law. 

Collaborating for a Greener Future: How Colorado Encourages Better Energy Decisions By CU Law Student Austin Flanagan

Most states have separate agencies responsible for environmental protection and energy planning, making collaboration between agencies a necessity to ensure that energy and environmental decisions do not undermine the achievement of one another’s goals. Collaboration between agencies promotes efficient planning, a clearer understanding of issues and solutions, and greater accountability with agencies cross-referencing each other’s work. Here, I draw on interviews from several state agency officials to analyze Colorado’s current collaborative framework and ways to secure that framework for the future.

The dominant threats to collaboration are agencies’ competing interests (e.g. a different weighing of economic and environmental impacts), a new administration taking office that emphasizes an adversarial rather than cooperative framework, and turnover in agencies that results in weaker inter-agency relationships.

Colorado agencies currently collaborate for three main reasons: The Clean Air – Clean Jobs Act mandates it, the Governor set a tone for it, and agency officials see the benefit in it (cultivated by strong inter-agency relationships). It is all three of these factors which have contributed to Colorado’s successful collaborative structure.

Though Colorado’s agencies have achieved successful cooperation historically, this cooperation was strengthened with the passage of the Clean Air – Clean Jobs Act in 2010. The Act is the primary piece of state legislation that requires energy and environmental agencies to collaborate. The Act encourages more natural gas production along with other “low emitting resources” and the retirement of coal-fired plants, which historically accounted for over half of Colorado’s energy production. The Act mandates all rate-regulated utilities that own coal plants to submit to the public utilities commission (PUC) an emission reduction plan. The PUC will then allow the Department of Public Health and Environment (CDPHE) to comment on the utilities plan. The CDPHE analyzes the plans to ensure compliance with state and national emission standards. The CDPHE’s Air Quality Control Commission then has an opportunity to incorporate the plans into the regional haze element of Colorado’s State Implementation Plan (which is required by federal law).

The Act furthered Colorado’s cooperative environment by setting ambitious emission goals and mandating coordination between certain agencies. The act itself was the product of collaboration – it had broad bipartisan support from stakeholders on all sides including private energy corporations, conservation groups, and government officials.

Building on the momentum of the Clean Air – Clean Jobs Act, Governor Hickenlooper was quick to set forth a tone of collaboration. The Governor has continuously expanded on the goals set forth in the Act. He made clear that Colorado’s economy and environment depend on clean energy. With this in mind, the governor ensured that state officials collaborate to meet energy goals.

This tone of collaboration is enhanced by agency officials who see a general benefit in collaborating. Most of these agencies coordinate on a daily basis – sharing information and collaborating to solve complicated dilemmas. “Our jobs are to think through, beyond our spaces, what are the broader implications of a given proposal or issue…” A representative from the Colorado Energy Office, explained. “The end goal is to reach the best decision for all Coloradans and collaboration is the best way to do that.”

For instance, when the CDPHE considers a rule to set stricter emission standards for vehicles, it brings in many other agencies (often three or more) for consultation. The rule is refined in accordance with that input and consultation with other agencies continues throughout the process. This collaboration occurs despite the absence of a legislative mandate requiring cooperation.

Despite these successes, collaboration in Colorado is highly dependent on the preferences of agency actors and the governor. A new administration could enhance this collaborative framework, but it could also choose to appoint adversarial agency heads and set a tone of isolation. Or it could set an agenda that promotes adversarial interest within the agencies (as opposed to the shared interest in the Clean Air – Clean Jobs Act). It is this uncertainty which poses the biggest threat to Colorado’s collaborative environment.

Other states have taken note of this threat and implemented safeguards to ensure consistent collaboration. Some have merged agencies so that environmental and energy decisions are made by the same actors. For instance, Vermont streamlined the siting of wind power by housing all decision-making power in one agency. This agency is charged with balancing environmental concerns while ensuring economic benefits in promoting wind power. Vermont and other states with merged agencies have recognized that environmental concerns are the catalyst to energy policy.

Colorado’s Clean Air – Clean Jobs Act did well to bring agencies together in order to achieve the state’s energy and emission goals. The Act serves as a backstop to ensure there is a baseline of collaboration between certain agencies in reaching emission standards. It is certain today that the actors within these agencies go far beyond the Act’s mandate to reach the best energy and environmental decisions – whether this will be certain in the future is less evident. With this in mind, Colorado might consider strengthening its collaborative structure through additional state mandates or by merging agencies.

Austin Flanagan is a rising 3L at Colorado Law and a GWC Research Assistant.

2018 GWC Summer Conference What Lies Beneath: Reason to Care (and be Excited) About Groundwater Use and Management in the Southwest

Event Video

Presentations Day 1-Session 1

Gil Barth-Essential Science

Leonard Konikow-Western Groundwater

Sharon Megdal-The Governance Conundrum

Presentations Day 1-Session 2

Bonnie Colby-Groundwater Trading

Cleave Simpson-Rio Grande/San Luis Valley

Sam Routson-Diamond Valley

Mike Young-Diamond Valley

Sam Routson and Mike Young Documents

Diamond Valley Groundwater Management Plan

Sharing Groundwater

Unbundling Water Rights

Groundwater Sustainability Plan: Working Draft

Presentations Day 1-Session 3

Burke Griggs-Interstate Groundwater Compacts

Noah Hall-Mississippi v. Tennessee Blog Post

Heather Whiteman Runs Him-Agua Caliente Decision

Robert Adler-Groundwater Conduit

Presentations Day 2-Session 4

Reagan Waskom-South Platte

Jim Holway- AZ Groundwater

Stefanie Morris-California’s SGMA

Presentations Day 2-Session 5

Dominic DiGiulio-O&G and Groundwater in Pavillion, WY

Dave Kreamer-Uranium Mining in the Colorado Plateau

Holly Richter-San Pedro River

Eloise Kendy-Colorado River Delta Restoration

Presentations Day 2-Session 6

Amy Steinfeld-Cadiz on the Fast Track

Courtney Hemenway-ASR Applications in the South Denver Metro

Stephanie Pincetl-Groundwater and a Sustainable L.A.

Scott Reinert-The El Paso Experience

 

“The Shock of the Real”: Twelve Law Students, Nine Days, and One Unforgettable Adventure By 2018 CU Law Graduate Amanda Biedermann

The 2018 Advanced Natural Resource Seminar students with GWC Executive Director Alice Madden

“Out there is a different world, older and greater and deeper by far than ours, a world which surrounds and sustains the little world of men as sea and sky surround and sustain a ship. The shock of the real . . . For a few moments we discover that nothing can be taken for granted . . . and our journey here on earth, able to see and touch and hear in the midst of tangible and mysterious things-in-themselves, is the most strange and daring of all adventures.”

Edward Abbey wrote this excerpted quote in his book, Desert Solitaire, fifty years ago; however, Abbey’s words still ring true today and capture the recent experience of a group of second and third year law students from the University of Colorado Law School, who embarked upon a memorable trip to the Colorado Plateau region over the 2018 spring semester break period. This field trip is a required part of the Advanced Natural Resources Seminar offered at CU Law for upper level law students. In this seminar, the students study historical, literary, and scientific materials and analyze current problems relating to natural resources law over the course of a semester. Each year the seminar focuses on a different area within the American public lands system, and culminates in a field trip to visit that location.

This year, the seminar group traveled to the Colorado Plateau region, which covers an estimated 140,000 square miles within western Colorado, northwestern New Mexico, southeastern Utah, and northern Arizona. This region is rich in cultural and biological diversity, containing numerous tribes and various ecosystems, as well as the greatest concentration of U.S. National Park Service units outside Washington, DC, including nine national parks and 18 national monuments. The seminar students ventured out of the classroom and into the wilderness to learn about the region’s intricate and interconnected issues relating to natural resources, energy, and environmental law. During the week and a half they spent together exploring this region, the students journeyed through four different states, meeting with a variety of legal experts and community leaders in the field to learn about differing perspectives regarding public land protection, tribal interests, wildlife management, and cultural preservation.

This trip came at an opportune time for the students to witness first-hand the complicated nature of public land management, as many of the public land areas and national monuments in Plateau states are under scrutiny by the federal government. The students observed this struggle first-hand as they met with a variety of professionals in the region, ranging from non-profit leaders committed to preserving and protecting public lands in their most natural state, to government officers from the Bureau of Land Management, who have been assigned the challenging task of balancing multiple uses of government land. The students also learned about the vital importance of tribal participation in public land management as they hiked their way through the Canyon of the Ancients National Monument, Comb Ridge (once a part of the originally-designated Bears Ears National Monument) and the Ute Mountain Ute Tribal Park, all of which are important sites for Native American tribes. In fact, a trip highlight for many of the students was an afternoon spent with Nicole Horseherder, a founding member of Black Mesa Water Coalition and member of Navajo Nation, who lead the students on an excursion through Navajo reservation land and discussed the various economic and environmental issues tribal members are facing in the region. Hiking through land now deprived of its main water source and interacting with the tribal members advocating against the commercial interests accused of taking the water, the students experienced emotions and thoughts that can never be truly developed within the confines of the classroom environment. While shocking, the injustices the students observed affirmed their commitment to their legal career paths and served as an inspiration to continue to advocate for vulnerable communities.

The students delved further into the complicated nature of competing interests by continuing their road trip to Northern Arizona to learn about both past challenges and future opportunities regarding the region’s energy sources by touring the Glen Canyon Dam, the Marble Canyon proposed dam site, and the soon-to-close Navajo Generating Station. During this stretch of the trip, the group spent several nights at Kane Ranch, a restored 19th century ranch house now owned by the Grand Canyon Trust, hiking around the Kaibab National Forest to observe sustainable grazing techniques and drought management methods. The trip culminated in a visit to witness and discuss the recent changes resulting from increased development around Moab and Canyonlands.

Reflecting back on their trip, the students have a new perspective on and appreciation for the historical issues of the Colorado Plateau, as well as a passion to help enact change to improve the future of this region. While many of the students came into the trip with extensive background knowledge regarding natural resources law and public land issues, the field trip afforded the students the opportunity to witness first-hand the effects of legal and policy decisions that are often made far away from the people and places they actually impact. Public land management is often convoluted and complex, with no easy or apparent solutions to difficult choices. However, these future leaders, now more than ever after their experiences on their field trip, understand the crucial importance of protecting these valuable areas so that others can have their own adventures in these special places and gain a new respect for America’s unique public land legacy.

Amanda Biedermann is a 2018 CU Law Graduate

Amid Coal-Plant Closures, Navajo Nation and Hopi Tribe Face Economic Transition By CU Law Student Lauren Sakin

Despite President Trump’s promise to end “the war on coal,” the Hopi and Navajo Nations are facing the inevitable transition away from a coal-dependent economy due to the upcoming closure of the Navajo Generating Station (NGS) and Kayenta Mine. The Trump administration maintains that its policies will revive coal. However, so far such efforts have achieved little success. The Federal Energy Regulatory Commission (FERC) rejected the administration’s proposal requiring utility companies to subsidize and stockpile coal. Tribes and communities across the country must therefore plan, whether sooner or later, for a future without conventional coal. Colorado Law Professor Sarah Krakoff has begun to explore these issues, which will form part of her continuing research agenda. Ideally, a future without NGS and Kayenta Mine would provide opportunities for the Navajo Nation and Hopi Tribe to diversify their economies while safeguarding their land and resources. The idea of a “Just Transition,” which would provide funding for lost revenue and jobs as well as a long-term plan to create an economically and environmentally sustainable economy, has gained traction in some quarters. Colorado Law and the GWC stand ready to provide research to support such a solution, if it is a path that the Tribes themselves choose.

What Does the Colorado Plateau Mean to the University of Colorado Law School?

Recently, Colorado Law students experienced first-hand NGS’s impacts on the Navajo Nation. GWC’s executive director, Alice Madden, taught a capstone course on the history, diversity, and natural resources of the region. The seminar included a week-long road-trip on the Colorado Plateau where students met tribal leaders, attorneys, and national parks managers. According to student Gregor MacGregor “meeting people who have to make the decision and live with the decision” allows University of Colorado law students to tie together law, policy, and the people it affects.

During the trip, students met with Navajo environmental activist Nicole Horseherder, who has been an integral part of advocating for a transition that will benefit the Navajo people and their lands. According to Nicole, “everybody is tethered to this [coal] plant. Because so much water is being used and so much of the resources are being dedicated to that plant, we can’t really do anything else.” Therefore, she sees her primary role as educating the Navajo community so that they can mobilize themselves towards a self-sufficient future without NGS. Nicole’s vision is that by moving NGS to renewables, the Navajo will regain control of valuable natural resources needed for local development.

A Proposed Transition to Clean Energy.

Currently, the most environmentally and economically sustainable transition option is to replace NGS with sources of renewable energy. The topography of the region combined with the declining solar construction costs makes NGS a desirable location to install renewables. Navajo Nation President Russell Begaye has negotiated title to the rights of the transmission lines after the closure of NGS. These rights will allow the Navajo people to decide how they want to develop energy infrastructure on their land.

The initial construction and ongoing electricity generation of solar and wind energy facilities will increase the number of local jobs and replace some, though not all, of the lost tribal revenue. Careers in solar power are increasing nationwide and at a faster rate than the fossil fuel sector. Renewable energy projects on Navajo Nation that repurpose the use of the coal power transmission lines offer the Hopi and Navajo tribes an opportunity for economic and infrastructure development. If combined with transitional support from the federal government and a broader plan for a diversified economy, renewable projects could be an anchor for a sustainable future.

Utility-scale solar projects providing energy to the Navajo and Hopi tribes are already underway and providing significant economic activity. The Kayenta Solar Farm, owned by the Navajo Tribal Utility Authority (NTUA) and Salt River Project (SRP), opened in August 2017. The construction of the solar farm employed approximately 236 tribal members, paying over $5.2 million to the workforce and an estimated $15.6 million in revenue to the Navajo Nation. Additionally, SRP provided 4,700 hours of specialized solar utility construction training. In January, the owners agreed to build the second phase of the project. Hopefully, this is a promising first step to make Navajo and Hopi Nations clean energy producing Tribes.

A successful transition will start with the construction of renewable projects while the power-plant begins to scale back. Collaborative planning initiatives from tribal and state governments could hasten development and attract the business investment required to fund projects. The transition to renewable energy sources will not be simple. Funding will be difficult to obtain, and technological developments are still required to make renewables a stable source of electricity. However, the closure of NGS presents a perfect opportunity to implement these changes.

At this time, NGS closure looks inevitable, and the question to ask is how to accomplish environmental sustainability while establishing social and economic justice for the Navajo and Hopi? Optimistically, a successful and just transition in the four-corners will pave the way for coal communities across the country, whether in Indian country or otherwise. The Getches-Wilkinson Center, Colorado Law, and our faculty and students hope to be a part of this larger Just Transition movement.

Lauren Sakin is a rising 2L at Colorado Law, and a GWC Research Assistant

Advising the EPA: The Insidious Undoing of Expert Government By CU Law Professor Sharon B. Jacobs

This post originally appeared on the Harvard Law Review Blog

The modern administrative state was built on the promise of expertise. As James Landis argued in his New Deal-era defense of the bureaucracy, expert agencies are needed to effectively oversee the behavior of sophisticated industry actors. Consistent with Landis’s vision, government agencies today are populated by subject matter experts. Thus, the Environmental Protection Agency (EPA) employs biologists and chemists while the Nuclear Regulatory Commission employs physicists and reactor systems engineers. Increasingly, agencies have also sought the advice of outside experts. These outside experts form advisory committees, task forces, work groups, and boards that review agencies’ internal decisions and provide recommendations and advice.

The federal government now makes use of upwards of 1,000 such committees. Sheila Jasanoff has called them a “fifth branch” of government. In the 1970s, congressional concern about the proliferation of advisory committees produced the Federal Advisory Committee Act of 1972 (FACA). FACA imposes reporting and transparency requirements on federal advisory committees. In addition, the Act states that advisory committees should be “fairly balanced in terms of the points of view represented and the functions to be performed.”

On Halloween, EPA Administrator Scott Pruitt issued a new directive entitled “Strengthening and Improving Membership on EPA Federal Advisory Committees.” The directive states that no member of an EPA advisory committee shall “be currently in receipt of EPA grants” or be “in a position that otherwise would reap substantial direct benefit from an EPA grant.” A memorandum accompanying the directive explained that direct receipt of EPA grants “can create the appearance or reality of potential interference” with members’ abilities to “independently and objectively” serve.

That justification is superficially appealing. But the directive’s outward concern with impartiality masks an effort to rebalance advisory committee membership to favor industry representatives over academics. By preventing EPA grantees from serving on advisory committees, the agency is likely disqualifying some of the country’s ablest scientists. Those dismissed from the EPA’s advisory commissions in the wake of the directive include researchers from Harvard, Stanford, and the University of Southern California. In contrast to academics, industry scientists need not seek EPA grants because their research is funded by their employers. They are thus unaffected by the directive. Industry membership on advisory boards raises impartiality concerns of its own. But Administrator Pruitt’s directive ignores this source of potential bias completely.

Moreover, the insinuation that receiving a grant from the EPA renders an advisory board member impartial is misleading. The EPA estimates that in the past three years, members of its Science Advisory Board, Clean Air Scientific Advisory Committee, and Board of Scientific Counselors received a combined total of more than $77 million in direct EPA grant funding. But that figure, by itself, proves nothing. The EPA already employs a conflicts screening process. According to one former member of EPA’s Scientific Advisory Board, advisory commission members are given a conflict of interest form to fill out for each separate issue discussed. If a conflict is identified, the member is immediately recused.

Disallowing advisory committee service by agency grant recipients will not necessarily lead to ideological “stacking” of committees. But the directive’s application has already resulted in more substantial industry membership on EPA advisory committees. There have also been committee leadership changes. Dr. Peter Thorne, whose University of Iowa webpage identifies him as a co-investigator on an EPA-funded study, was recently replaced as chair of the EPA’s Science Advisory Board by Dr. Michael Honeycutt, lead toxicologist for the Texas Commission on Environmental Quality. Dr. Honeycutt has broken with the scientific consensus by questioning the need to reduce smog levels. One of his arguments? Most people spend 90% of their time inside, where smog is less likely to affect them.

Administrator Pruitt’s directive is of concern to those who value advisory committees’ scientific integrity (and some lawmakers have already expressed their displeasure). But is it illegal? Any legal challenge must overcome several hurdles. The first, and most easily surmounted, is that the APA limits judicial review to “final agency action.” The EPA’s directive is likely final under Bennet v. Spear, which requires that the action “mark the ‘consummation’ of the agency’s decisionmaking process” and be one “from which ‘legal consequences will flow.’” As the D.C. Circuit has held, even informal guidance like this directive can be deemed final when it reflects a settled agency position. This directive is binding on its face and has immediate legal consequences for advisory committee members. While Administrator Pruitt was careful to note that he was “reserv[ing] the right to exercise my discretion to depart from the procedures set forth in this directive,” that statement is probably not enough to deprive the directive of finality.

The second hurdle is Article III standing. Under the governing test, plaintiffs must demonstrate to a court’s satisfaction that the directive has caused them a cognizable injury. They must also show that a verdict in their favor will redress that injury, at least in part. The most obvious candidates to challenge the directive are advisory board members who were dismissed due to their EPA grant funding or EPA grant recipients who were potential appointees prior to the directive’s issuance. As the 10th Circuit has explained, “Standing predicated upon denial of a fair opportunity to compete for a position or contract is well established.”. Alternatively, environmental groups like the NRDC and the Sierra Club may be able to invoke the ideas of organizational standing and procedural injury to challenge the directive on their members’ behalf. The Fifth Circuit has held that entities with an interest in the accuracy of particular agency decisions have standing to challenge advisory committee irregularities under FACA, although in that case the challenge came from regulated industry rather than from regulatory beneficiaries.

On the merits, one possible challenge to the directive is that it violates FACA’s requirement that advisory committees be “fairly balanced.” As one commentator has noted, the courts are divided on whether this requirement is justiciable. The Ninth Circuit observed that FACA does not “articulate what perspectives must be considered when determining if the advisory committee is fairly balanced,” and thus provides no meaningful standard for judicial review. However, the D.C. Circuit, Tenth Circuit, and Fifth Circuit have reached the opposite conclusion. In a case called Cargill v. United States, the Fifth Circuit not only found the “fairly balanced” requirement justiciable, but it also found that appointing agency grantees to serve on advisory boards at the Department of Health and Human Services (HHS) was not a violation of FACA. “Moreover,” the court concluded, “if HHS were required to exclude from peer review committees all scientists who somehow had been affiliated with the department, it would have to eliminate many of those most qualified to give advice.”

Per Cargill, therefore, status as a grant recipient is not disqualifying under FACA. But arguing that the EPA is not permitted to disqualify grant recipients is much harder. FACA’s “fairly balanced” edict is worded broadly enough to give agencies significant latitude in selecting advisory commission members. A facial challenge to EPA’s directive would likely fail, since there undoubtedly exist qualified members of academia not in receipt of EPA grants. More likely to succeed are as-applied challenges to the makeup of specific EPA advisory committees on the basis of industry over-representation. There is some evidence, however, that courts are inclined to defer to an agency’s selection of advisory committee members.

Plaintiffs might also challenge the directive as arbitrary and capricious under the Administrative Procedure Act (APA) or as a violation of FACA. Courts assessing agency action under the APA’s arbitrary and capricious standard ask, in part, whether an agency has articulated a rational connection between the facts found and the choice made. There is a powerful argument here that EPA’s focus on one version of independence (from the EPA itself) while ignoring another version of independence (from regulated industry) was arbitrary. It could also be argued that the equation of grant receipt with bias is itself an arbitrary conclusion, especially in light of the Fifth Circuit’s Cargill opinion.

Because Administrator Pruitt’s directive was announced on Halloween, it seems fitting to invoke the Celtic origins of that holiday, on which Celtic druids would make predictions about the future. My gloomy prediction is that this directive is not the last blow to agency expertise and unbiased science that we will see from the Pruitt EPA. Advocates should pursue judicial solutions where possible, but the surest remedy for such violations is political. Scott Pruitt is unfit to lead the EPA and should be replaced at the earliest possible opportunity.

Sharon B. Jacobs is a Professor at CU Law and a member of the GWC Board.