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.
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 Importantly, this landfill ceased operation to avoid the costs necessary to upgrade its outdated design to comply with modern environmental protection laws.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.
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.
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
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.
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.
The Getches-Wilkinson Center is pleased to present the work of a team of students with the Acequia Assistance Project, who spent the last two years digging into the history, the politics, and law surrounding attempts to export water from the San Luis Valley.
The term acequia refers to one of the communally-owned irrigation ditches used by agricultural communities in parts of New Mexico and Colorado. But more than that, it describes a centuries-old tradition that treats water as a shared resource, essential to the life of the community. Together, the ditches and the communal values that created them sustain some of the oldest farming communities in the Southwest. The Acequia Assistance Project is a joint effort by the Getches-Wilkinson Center, Colorado Open Lands, and the Sangre de Cristo Acequia Association, to provide legal assistance and educational materials that help Colorado’s acequia communities maintain and protect the acequias.
The Acequia Project’s work is centered in the San Luis Valley in southern Colorado, where water is both scarce and essential for survival. The hydrology of the Valley relies on an aquifer system that sits beneath the Valley floor. Maintaining the health of the aquifers is a matter of life or death for the towns and large-scale farming operations that draw groundwater from wells, and for the communities that use surface water to fill their acequias. The aquifers also underpin the ecology of the Great Sand Dunes National Park, and water from the Valley feeds into the Rio Grande River, thereby helping Colorado to meet its legal obligations under the interstate Rio Grande Compact.
Despite the many longstanding demands on the Valley’s water, over the last three decades various developers have looked to the Valley as a source of water for Denver and the other rapidly growing cities on Colorado’s Front Range. Water in the Valley is precious, but it does not fetch the same prices locally that municipalities will pay in the Denver metropolitan area. This profit potential attracts developers looking to buy up water rights in the Valley and then pipe the water over the mountains to growing populations on the Front Range.
So far, these export proposals have withered in the face of fierce opposition from local residents. Residents understand that threats to the Valley’s water are also threats to their way of life, and have fought hard to preserve their region’s resources. Over the course of these fights, various laws and regulations have been built up to safeguard the Valley’s hydrology. But despite local opposition and a growing body of legal hurdles, water export proposals continue to this day. This threat of water exportation is a constant concern hanging over the acequia communities and other local residents that rely on the Valley’s water to survive.
As part of the Acequia Project’s partnership with communities in the San Luis Valley, a team of CU students have spent two years studying water export proposals in the Valley. The students sifted through the array of laws governing water use in the Valley, interviewed community leaders and Colorado water law experts, and tracked the history of water export proposals from the 1980s through the present day. Their final report, Water Exports in the San Luis Valley, draws on Colorado statutes and regulations, water court decisions, investigative reporting, and the work of expert agencies and other scholars to build a nuanced picture of the issue.
Water Exports in the San Luis Valleyis intended to be a practical resource for opponents of water export in the Valley. To this end, it reviews the hydrology of the region and the critical roles played by the aquifers. It tracks the history of water usage and export attempts in the Valley. Finally, it catalogues and explains the various legal protections that have been built up over the years to prevent the looting of the Valley’s hydrological heritage.
The Acequia Assistance Project hopes first and foremost that, by collecting the knowledge and experience of the Valley’s occupants, this report will facilitate future defenses of the Valley’s water. But hopefully this report also serves to educate a wider audience and raise awareness about the history of water struggles in the Valley. The lessons learned over decades in the San Luis Valley will likely only grow in relevance as we come to grips with the changing climate of the American West.
The relationship between healthy forests and reliable water supplies has been understood for centuries, and is increasingly important in an era of climate warming, forest disease outbreaks, and devastating fires. However, the water management community historically has not been heavily engaged in efforts to protect and restore healthy source water areas. This is now changing in many pockets throughout the West, and lessons are being learned that might suggest opportunities for broader regional efforts.
Kimery Wiltshire President, Carpe Diem West
Mike McHugh Senior Water Resources Project Manager, Aurora Water
Many members of the business community are increasingly concerned that western water scarcity is a threat to producing and selling their products, and more generally, to maintaining the healthy social and economic conditions that are needed to sustain strong economies. A variety of initiatives are now underway to address this concern, and to address water management issues both within and outside of their sphere of operations.
Mike Bernier Director of Sustainability and Environmental Affairs, Swire Coca-Cola
Todd Reeve Chief Executive Officer,BEF/Business for Water Stewardship
Water Markets and Private Investments in Western Agriculture: A Road Forward?
Thursday, September 24th, 2020
Using market forces to shift the distribution and use of western water resources is a controversial topic. Some individuals fear that private investments in western agriculture will doom the sector, as water will inevitably flow to higher-paying uses and users in urban settings. To others, these investments allow agriculture to become more efficient and resilient, and when done correctly, can minimize any pain associated with large-scale water reallocations.
James Eklund Founder and CEO, Eklund Hanlon LLC
Peter Fleming General Counsel, Colorado River Water Conservation District
Gone are the days when funding western water needs was merely a task of gaining Congressional authorization and appropriations for new dams and reservoirs. Today, federal funds are limited, and much of what needs to happen does not involve new infrastructure. A vast toolbox of potential funding strategies are, at least theoretically, available, although many options are unproven. Many such strategies are under consideration in Colorado for implementing the State Water Plan.