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.

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

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

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

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

The Law

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

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

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

The Martinez Case

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

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

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

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

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

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

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

Discussion

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

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

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

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

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

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

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

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

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

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

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

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

Positive Developments in Indian Law for Investment

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

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

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

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

NGS Site Advantages for Site Control and Access, Permitting

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

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

A Chance for Reclamation and Future Development

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

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

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