Managing an Administrative Disaster: Establishing FEMA as an Independent Agency

By Colorado Law Student Hunter Knapp

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

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

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

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

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

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

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

With More Clean Energy Comes More Responsibility

By Colorado Law Student Robert DeMarco

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

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

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

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

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

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

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

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

Inaugural Ruth Wright Distinguished Lecture

Cost-Nothing Analysis:
Environmental Economics in the Age of Trump

Professor Lisa Heinzerling, Georgetown Law

The annual Distinguished Lecture Series is a cooperative venture between the Getches-Wilkinson Center (GWC) and the Colorado Natural Resources, Energy, & Environmental Law Review to host a distinguished figure in the fields of natural resource, energy, and environmental law and policy.  The Distinguished Lecture series provides a public forum for thought-leadership, allowing the speakers to reflect on their experiences and provide insights on the current challenges facing natural resources, energy, and the environment. The articles and transcripts resulting from these lectures are published in the Law Review.

Now in its fifth year, Colorado Law is excited to announce a new endowment to bolster support of the Distinguished Lecture series so that we will be able to bring this free event to our community for years to come.  Thanks to a generous gift by the Wright Family Foundation to the GWC, we are thrilled to launch the Ruth Wright Distinguished Lecture in Natural Resources to honor her inspiring legacy as a leader in western natural resources, land conservation, and environmental policy and advocacy.

Cost-Nothing Analysis: Environmental Economics in the Age of Trump

Cost-benefit analysis has always resisted environmental protection. For this reason, presidents since Nixon have used cost-benefit analysis to stifle environmentally protective regulation. The present administration has taken this practice one step further by ignoring or eliminating benefits entirely in many instances — thus ushering in an era of cost-nothing analysis. Cost-nothing analysis assumes it costs us nothing to degrade the environment, even as the evidence grows that it may cost us everything.

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

By Tarah Bailey, GWC Graduate Fellow

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

The Buzz Around Developing Pollinator Protections By CU Law Student Daniel Franz

Butterflies and bees pollinate over 85 percent of flowering plants and contribute to 35 percent of global food production. Bumble bees play a special role in pollination: they work longer days and in worse weather than other bees because of their unique abilities to fly in cooler temperatures and lower light levels. Additionally, bumble bees are the only species that can pollinate plants that require “buzz pollination.” Certain plants only release pollen when a bumble bee attaches itself to the anther of a flower and buzzes its wings at a specific frequency. Tomatoes, blueberries, apples, cranberries, squash, melon, and peppers all rely on the bumble bee’s unique pollinating abilities. A wide range of wildflowers also depend on bumble bees for pollination and continued survival.

The environmental and economic benefits provided by bumble bees are at risk since North American bumble bee populations are in decline. Of the 50 North American bumble bee species, six are losing population and range land. Two of those species, Franklin’s Bumble Bee (Bombus Franklin) and the Western Bumble Bee (Bombus occidentalis), are specific to the West. A loss of either species would stress Western ecosystems and potentially result in the loss of flowering plant species unique to the area.

Suspected causes for bumble bee decline include habitat loss and fragmentation, increased pesticide use, increased prevalence of parasites and pathogens, and ecosystem changes caused by climate change. Bumble bees are particularly sensitive to changes in resource availability. Bumble bee colonies have long life cycles and only produce a few reproductive individuals near the end of that cycle. The entire colony dies at the end of the year and new queens are left to establish the next year’s population. Small changes in the number and types of plants available throughout every stage of a bumble bee’s life cycle have long lasting cumulative effects on colony productivity, the number of new queens produced, and the next year’s population levels.

Within the last few years, the federal government has taken multiple actions to address some of the causes of pollinator population decline.

Regulating Pesticides Under the Federal Insecticide Fungicide, and Rodenticide Act

Of the many chemicals that affect bee health, neonicotinoids are of particular interest to pollinator conservation groups. This class of insecticide is commonly used on agricultural crops, turfgrass, and gardens. The rise in use of neonicotinoids in the early 1990’s correlates in time to the beginning of major declines in bumble bee populations. One study exposed bumble bees to normal field-levels of the chemical and found an 85 percent decrease in new queen production and significant reduction in colony growth. Sublethal exposure levels resulted in decreased foraging ability, food storage, adult health, and brood production.

Insecticides are regulated under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The Environmental Protection Agency (EPA) is responsible for evaluating a chemical and determining whether “it will perform its intended function without unreasonable adverse effects on the environment.” The EPA began the review process for the neonicotinoids Imidacloprid, Clothianidin, Thiamethoxam, Dinotefuran, and Acetamiprid in 2017 and plans to issue proposed interim decisions in 2019. If the EPA cancels the registration for these widely used neonicotinoids, it will eliminate a large stressor on bumble bee populations.

Protecting the Rusty Patched Bumble Bee Under the Endangered Species Act

In January 2017, the Rusty Patched Bumble Bee (Bombus affinis) was listed as an endangered species by the United States Fish and Wildlife Service (USFWS). The Rusty Patched Bumble Bee is the first and only continental bee protected by the Endangered Species Act (ESA). Its listing is particularly important because of the species’ large geographic range and close relation to other threatened bumble bees.

Historically, the Rusty Patched Bumble Bee was incredibly common in the Upper Midwest Region of the United States. Since the 1990’s there has been an observed loss of the Rusty Patched Bumble Bee from 70 to 87 percent of its historic range and a 95 percent decrease in population size. The reduced population size and range create serious genetic concerns for the Rusty Patched Bumble Bee. Reduced genetic diversity, inbreeding depression, and an issue specific to bumble bee sex determination called the “diploid male vortex” significantly threaten the species’ survival.

The ESA prohibits the “taking” of the Rusty Patched Bumble Bee by both public and private actors. Additionally, the USFWS is now reviewing critical habitat designation which will provide further protections against government actions.

Multiple lawsuits have arisen from the Rusty Patched Bumble Bee’s listing. Although many of them have failed on procedural grounds, the Sierra Club successfully challenged the USFWS’ authorization of a pipeline’s construction across the Rusty Patched Bumble Bee’s range. The Fourth Circuit Court of Appeals held that the USFWS failed to meet its requirement to set a specific numeric take limit: “[N]either one colony nor a small percent is an enforceable standard: There may be multiple colonies within the [affected range], [the Government] cannot know if taken bees are from the same colony or different colonies, and it is not clear what constitutes a ‘small percent’ of queen bees.”

This case is only the first of many developments critical to understanding how the listing of the Rusty Patched Bumble Bee will impact pollinator protection. Previously unprotected, bees have recently gained particularized federal protection under the ESA and potential protection under FIFRA. Unanswered questions remain concerning the impacts of these changes on bumble bee conservation. Ideally, additional protections for more bee species and other pollinators are on the horizon.

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

“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.