In Memoriam, Justice Gregory J. Hobbs Jr.

Gregory J. Hobbs Jr.
1944 – 2021

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

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

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

Please see our tribute here:

41st Annual Colorado Law Conference on Natural Resources

Thursday, September 30 and Friday, October 1

Equity in the Colorado River Basin: How to Sustainably Manage a Shrinking Resource

Simply put – demands for water in the Colorado River Basin exceed supply.  Chronic drought, record heat, and rampant wildfires are already affecting the Basin’s overall health and resilience, and the historically low levels in Lakes Mead and Powell led to an unprecedented call on the river.  These compounding challenges come at a time when several key components of the “Law of the River” are sunsetting in 2026.  Key players are already revisiting the 2007 Interim Guidelines, Minute 323, and the 2019 Drought Contingency Plan.  Relatedly, endangered fish recovery programs relevant to the region expire in 2023.  Meanwhile, 48% of Tribal households in the U.S. do not have access to reliable water sources, clean drinking water, or basic sanitation.  These harsh realities hasten the need to advance sustainable water management, improve watershed resilience, and ensure clean water access through collaborative decision-making.  We look forward to bringing together diverse expertise from across the region to draw the roadmap to an equitable future in the Colorado River Basin.

41st Annual Colorado Law Conference on Natural Resources

Equity in the Colorado River Basin Conference Recording

Conference Program

CLE Accreditation Notice

Land, Water, & People: The Natural Resource Priorities of the Biden Administration

Thursday, May 13, 2021

Colorado Law Dean James Anaya leads a moderated conversation with Secretary Haaland and Congressman Neguse exploring both agency and legislative priorities regarding public lands and water management, resource extraction, energy development, and related tribal issues – with an environmental/climate justice lens.

Land, Water, and People Event Video Now Available

CLE Accreditation Notice

Farther & Faster: The Integral Role of Technology in an Equitable Clean-Energy Economy

Friday, April 30, 2021

Join us for a conversation among two strong voices for creative entrepreneurship who will discuss what it will take to scale up the varied technologies needed to advance an equitable clean-energy economy. Newly appointed Executive Director of the Department of Energy’s Loan Program, Jigar Shah, is a seasoned clean energy entrepreneur, author, and acclaimed podcast host known for his work to create and advocate for market-driven solutions to climate change. Among his many accomplishments, Attorney General Weiser founded the Silicon Flatirons Center for Law, Technology, and Entrepreneurship at Colorado Law, where he catalyzed critical conversations among diverse stakeholders to propel the future of law, policy and entrepreneurship. From strategic investments and the free market, to related law and policy, Shah and Weiser will discuss transforming existing energy infrastructure, accelerating growth of utility-scale solar and wind, expanding domestic manufacturing of electric vehicles, analyzing nuclear potential, and how all of these efforts will advance technology breakthroughs and create jobs.

Farther and Faster Event Video Now Available

CLE Accreditation Notice

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

Tuesday, April 27, 2021

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

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

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

Water and Tribes Event Video Now Available

CLE Accreditation Notice

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

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

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

Colorado Supreme Court Considers the Reach of Environmental Statutes

Getches-Wilkinson Water Law Fellows Jaime Garcia and Chelsea Colwyn, filed an amicus brief on behalf of Eco-Cycle and Conservation Colorado in important environmental protection case

On April 7, the Colorado Supreme Court heard oral arguments in Board of County Commissioners of the County of La Plata County, Colorado v. Colorado Department of Public Health and Environment (CDPHE). The case presents two issues: 1) Whether a county falls within the definition of ‘person’ under the Solid Wastes Disposal Sites and Facilities Act (SWA); and 2) whether, under the SWA, an enforcement action brought against a public entity is a tort and thus barred by the Colorado Governmental Immunity Act (CGIA). The Court’s interpretation of the SWA and CGIA could have an enormous impact on the CDPHE’s ability to enforce environmental protection regulations throughout the state.

This case arose out of a dispute between CDPHE and La Plata over the steps necessary to determine potential groundwater contamination at a closed landfill. La Plata purchased the closed landfill in 1970. Importantly, this landfill ceased operation to avoid the costs necessary to upgrade its outdated design to comply with modern environmental protection laws. In 2004, La Plata notified CDPHE the landfill was leaking vinyl chloride, a known carcinogen. As a result, La Plata and CDPHE coordinated efforts to monitor groundwater near the landfill to ensure vinyl chloride would not contaminate drinking water.

In 2016, groundwater monitoring revealed vinyl chloride was seeping into deeper groundwater sources, increasing concerns about impacts on drinking water. CDPHE proposed a new monitoring plan, which La Plata objected to on the basis of cost. Despite over a decade of close cooperation on this issue, CDPHE and La Plata could not resolve their disagreement over the necessity of a new monitoring plan. As a result, CDPHE issued a unilateral administrative order, a power necessary to carry out its function as the statewide regulator for solid waste programs. This order would have required La Plata to take corrective actions, including the implementation of new groundwater monitoring protocols. The order did not seek administrative penalties. La Plata contested this order before the Office of Administrative Courts (OAC).

CDPHE and La Plata’s dispute raised important questions about the CDPHE’s authority to regulate county owned and operated landfills. The OAC issued a final order finding that the CDPHE had jurisdiction over counties pursuant to the SWA, and that the compliance order was barred by the CGIA. La Plata then appealed the decision to the La Plata County District Court. The District Court held that the compliance order was a tort action, and thus barred by the CGIA. If upheld, this decision could upend the CDPHE’s regulatory power, considering the CDPHE routinely enters into compliance orders with counties to address violations at county owned and operated landfills. Because the District Court decided the issues in favor of La Plata, the judge also awarded La Plata attorney’s fees. The District Court, however, declined to reach the “person” question on procedural grounds.

The Colorado Court of Appeals reversed the District Court, agreeing with CDPHE’s interpretation of the CGIA. Additionally, the Court exercised its discretion to address the issue of whether a county is a “person” for purposes of the SWA. The Court disposed of the “person” issue, noting the long legislative history of the SWA, which reinforces the legislature’s intent to include counties as a regulated “person” under the SWA. The Court turned to the CGIA, noting this as an issue of first impression, meaning courts have not before considered whether the CGIA prevents CDPHE from bringing an enforcement action against a county under the SWA. The Court’s analysis centered on whether an enforcement action under the SWA was a tort, or could lie in tort. Extending the Court’s analysis of the SWA, the Court pointed to the broad regulatory scheme of the SWA, which grants CDPHE power to regulate solid waste and minimize significant public health risks and environmental hazards. The Court concluded the SWA established a “statutory non-tortious duty” and was therefore not barred by the CGIA.

La Plata appealed the Court of Appeals’ decision, and was granted certiorari by the Colorado Supreme Court. Recognizing the complexities and potential impacts of the case, the Supreme Court accepted Amicus Briefs from Colorado Counties Incorporated (CCI) in support of La Plata, and from Sierra Club, National Waste Haulers and Recyclers Association (NWHRA), Eco-Cycle, and Conservation Colorado in support of CDPHE. GWC Fellows Chelsea Colwyn and Jaime Garcia, and Colorado Law Professor Sarah Krakoff provided pro-bono representation of Eco-Cycle and Conservation Colorado in the submission of their Amici Brief. The extensive briefing on both sides in this case went beyond the legal issues of statutory interpretation, and highlighted the potential impacts of the Supreme Court’s forthcoming ruling. CCI and La Plata highlighted the potential economic impact to counties if they are required to comply with CDPHE orders, and potentially pay administrative penalties. CDPHE and its supporting Amici argued a ruling in favor of La Plata would provide an unfair advantage to county-owned landfills, and in doing so, upend the State’s environmental protection laws.

Justice Melissa Hart, a former Colorado Law professor, questions CDPHE’s counsel, Senior Assistant Attorney General Lukas Staks (immediately right of Justice Hart), during Wednesday’s virtual oral argument.

The Colorado Supreme Court considered these contentious issues, raising new points during oral argument and asking counsel for both sides about the practical outcomes of this case. Several times the Supreme Court noted that counties own and operate the majority of the solid waste landfills in Colorado; a ruling that counties are not subject to CDPHE’s jurisdiction either under the SWA or due to the CGIA would effectively permit counties to self-regulate, without any oversight from the CDPHE. Although the Supreme Court recognized this potential outcome, some justices nevertheless asked if the General Assembly was the proper branch of government to address this issue. The Supreme Court focused much of its questioning on the interpretation of “person” in the SWA, with counsel for both parties fielding tough questions from the justices. The abundance of briefing on both sides and the Supreme Court’s evenhanded questioning will leave both parties eagerly awaiting the Supreme Court’s opinion.

In support of CDPHE, Eco-Cycle and Conservation Colorado focused the Court’s attention on the negative environmental impacts which could result from a ruling in La Plata’s favor. Uniform, statewide enforcement of environmental regulations is the cornerstone of modern environmental law. The SWA is Colorado’s oldest environmental law; as a result, it has been amended several times between 1967 and today. Significant amendments occurred in the early 1990s when the General Assembly amended its laws to conform with the federal Resource Recovery and Conservation Act (RCRA). Under RCRA, the federal government sets minimum standards for all solid waste facilities, but leans on states to implement a statewide plan that regulates all facilities and ensures they comply with those minimum standards. Many states, including Colorado, have enacted regulatory schemes which exceed the minimum standards of RCRA, and are more protective of the environment and public health. One of the key conditions for state regulation of solid waste is a state’s ability to enforce environmental standards against all solid waste facilities.

If the Supreme Court rules that CDPHE may not enforce against counties either due to the definition of “person” in the SWA or due to the CGIA, this statewide enforcement authority would disappear. This could result in several negative outcomes. Of chief concern is the potential for the EPA to decertify Colorado’s state implementation plan. Colorado would see its regulators replaced with federal officials, who would likely not have the familiarity with the state, or the resources necessary to monitor all solid waste facilities throughout the state. If the state’s plan is decertified, the state’s extensive regulations would be replaced by RCRA’s minimum standards. While these standards do provide some protections for the environment, the current state standards are far more stringent. The potential impact on the environment was echoed in the briefs of other Amici, as well as the concern that a ruling in favor of La Plata could create an uneven playing field for county-owned landfills.

The Colorado Supreme Court’s decision in Board of County Commissioners of La Plata County v. Colorado Department of Public Health and Environment could have far reaching implications for the Solid Wastes Act, and potentially all environmental protection laws in the state. The GWC water fellows are grateful for the opportunity to file a brief in support of Colorado’s important environmental protection laws, and eagerly await the Court’s decision.

Oral arguments in the case available here.

2021 Ruth Wright Distinguished Lecture in Natural Resources

Are We Saved? Tempering Our Expectations for Natural Resources Management under the Biden Administration

Wednesday, April 7, 2021

Marcilynn A. Burke
Dean and Dave Frohnmayer Chair in Leadership and Law
University of Oregon School of Law

Almost forty years ago, Dean Derrick Bell, published the book entitled, And We Are Not Saved: The Elusive Quest for Racial Justice.  In his book, he tells a story of apparent triumphs, followed by continuing travails.  He describes the United States as a place that seemingly has made great progress in its efforts to achieve racial justice, but how its facial progress actually masks and sustains systemic failures.

The challenges in the management of the nation’s natural resources, though very different (and yet not unrelated to racial justice), are nonetheless quite complex and woven into the very fabric of the nation.  The country has many urgent needs with respect to energy development, preservation and conservation, climate change, and climate justice.  This presentation will outline a few of the great hopes for natural resources management under the Biden Administration and this next cycle of “reform.”  It will examine some of the factors that make it more likely for us to be saved or save ourselves, so that at the conclusion of the Biden Administration, we do not utter the words of the prophet Jeremiah.  “The harvest is past, the summer is ended, and we are not saved.”  Jeremiah 8:20 

Event Video

CLE Accreditation Notice

13th Annual Schultz Lecture in Energy

Climate Change and Innovative Paths to a Sustainable Future

Thursday, March 4, 2021

Dr. Steven Chu
U.S. Secretary of Energy 2009-2013
William R. Kenan Jr. Professor of Physics and
Professor of Molecular and Cellular Physiology
Stanford University

Multiple industrial and agricultural revolutions have profoundly transformed the world. Their unintended consequence is that we are changing the Earth’s climate. Recent data will be presented that indicates our climate is even more sensitive than previously known and is changing faster than ever before. In addition to climate risks, we face many challenges – like how to provide enough clean energy, water, air, and food to a world of 7.7 billion people (and likely to grow to 11 billion by 2100). Dr. Chu will discuss the technical challenges and potential solutions that could provide better paths to a sustainable future. How we transition from where we are now to where we need to be within 50 years is arguably the most pressing set of issues that science and innovation has had to address.

Event Video

Colorado CLE Accreditation Notice

Cooperatives at a Crossroads

A report by CU Master of the Environment Graduates, Kayla Carey and Nathan Stottler

Kayla Carey and Nathan Stottler are recent graduates of CU’s Master of the Environment program specializing in Environmental Policy.  They took Professor Sharon Jacob’s Energy Law and Regulation class this past spring and have prepared their capstone project, Cooperatives at a Crossroads: Identifying the Opportunities and Challenges of Clean Energy in Electric Cooperatives.  The report analyzes the Generation & Transmission electricity cooperative model, examines the challenges and opportunities of cooperative exits, and investigates the role of cooperatives in the clean energy transition. The GWC is happy to help them meet their capstone requirements by sharing their work and helping them seek the input of interested parties.

The electricity sector will require a systemwide approach to meet greenhouse gas (GHG) emission targets and avoid the worst possible consequences of climate change. According to the Intergovernmental Panel on Climate Change (IPCC), at least 80% of the world’s electricity must be generated from low-carbon sources by the year 2050. To meet this target, electric utilities across the world must make and meet aggressive decarbonization commitments.

Rural areas need to commit to decarbonization to mitigate the most severe impacts of climate change.Rural communities, and their economies, are heavily reliant on natural resources, and are particularly vulnerable to the volatile ecological impacts of intensified heat, drought, flood, and wildfire. Yet these communities have often been overlooked as major players in the battle against climate change, despite being positioned to make a significant impact.

The purpose of our research is to identify pathways to accelerate the clean energy transition in rural America.Rural residents typically have more costly and carbon intensive energy mixes compared to urban and suburban customers. This report identifies the challenges that are preventing cooperatives (co-ops) from joining the clean energy transition, as well as the opportunities that exist for co-ops to overcome those challenges and achieve a future of clean, affordable electricity.

View the full report here:

Cooperatives at a Crossroads