A Colorado Law Student Event 

Presented by: The Byron White Center, The Getches-Wilkinson Center, and the American Constitution Society

Panelists: Professor Daria Roithmayr, BWC Director Deep Gulasekaram, and GWC Director Chris Winter

Tuesday, March 18th 12-12:50pm in Room 207

Join us for a panel discussion regarding the slurry of executive orders that Trump has passed over the past month that he has been in office, impacting several (if not all) areas of law. This panel's purpose is to discuss each of the executive orders, how they compare to those in previous administrations, and the extend of the orders' legal impact. Lunch will be provided, so please arrive early to grab your food and a seat! 

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In 2024, the Getches-Wilkinson Center and the Boulder Faculty Assembly Climate Science and Education Committee (CSEC) co-chaired a shared governance committee regarding campus energy and climate policy. The Committee was nominated by the University’s Chief Operating Officer to review and, if appropriate, recommend alternatives to the University’s plans to upgrade the Western District Energy Plant (WDEP). The Committee's nomination was followed by an  expressing concerns with the climate impacts of the WDEP upgrade and signed by over 460 �鶹��Ѱ�����community members.

On March 21, 2024, the WDEP Shared Governance Committee submitted its Preliminary Recommendation Report to the Chief Operating Officer. In its Preliminary Report, the Committee recommended that the University not go forward with its original upgrade plan for WDEP, citing the increase in greenhouse gas emissions that would result from that plan, and the availability of alternative options to meet campus resilience needs in a cost-feasible way. In July 2024, the University rejected the Committee's recommendation and approved the original WDEP upgrade plan. In October 2024, the Committee released its Final Report, addressing the University's claims and documenting concerns with the University's decision-making process around WDEP. The key findings from that Final Report are reproduced below.

The Committee's reports can be accessed here:

Download the Final Report

Download the Preliminary Recommendation Report 

Download Additional Questions from the Committee

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Summary Findings from the WDEP Committee Finding Report

1. The University’s original program plan for the WDEP project was written without adequate alternatives analysis, which is essential to adequate environmental decision making.
2. The University’s original WDEP plan (Option 2E) was developed with a lack of understanding of the regulatory flexibility offered by the explicit language of Reg 7. The University’s perception that Option 2E was required to ensure campus resilience likely resulted from that misunderstanding.
3. In its Preliminary Report, the Committee found that Option A1 provides similar resilience benefits to the University’s Option 2E. The University continued to claim that compelling resilience needs required the adoption of Option 2E despite detailed analysis by the Committee to the contrary when considering the regulatory flexibility in Reg 7. The University did not provide the Committee with any data or analysis supporting its claim.
4. The University claims Option 2E is required to protect continuity of mission critical research. Under the University’s own Energy Master Plan, that goal is supposed to be achieved by other means, which the University has not yet implemented.
5. In the program plan it submitted to the �鶹��Ѱ�����Board of Regents (Fall 2023, see here), the University did not take into consideration the additional greenhouse gas emissions that would result from Option 2E relative to the business-as-usual assumptions in its 2024 climate action planning. In this program plan, the University also highlighted carbon reduction benefits of the plan that are “...likely [to] hold true until at least 2030.”2 According to the Committee’s review of the University’s models, those emissions reductions are small and short-lived. Meanwhile, the University did not alert the Board of Regents to more substantial increases in carbon emissions that the plan would represent relative to the business-as-usual scenario in the long-term.
6. The University’s program plan included several additional claims that were incorrect and/or incomplete based on available data. It is possible that if the Regents had received more accurate and complete information, they would have invested greater resources in finding an alternative to the University’s plan. For example:
   • The University claimed that Option 2E will replace “existing 30-year-old combustion turbines” (p. 3), without mentioning the turbines have been rebuilt in 2013, and had very little depreciation on them given minimal use since 2013;
   • The University claimed (p.4) that Option 2E aligns with the University’s 2021 Energy Master Plan (EMP), despite the fact that the EMP explicitly planned to avoid base loaded cogeneration starting 2027, given GHG considerations (see here, p. 52; note that at the time the EMP was finalized, Reg 7 which the University claims precipitated the need for Option 2E was already in force);
   • Under the heading “Sustainable Design”, the University highlighted the possibility of reconfiguring the new turbines “to operate on alternative fuels like hydrogen or other cleaner burning fuel sources” (p. 4), even though it is widely accepted that hydrogen does not provide a feasible source of energy for heating for environmental, economic, and other reasons.
7. Concerns regarding the University’s recent planning to upgrade WDEP should also be understood in the context of WDEP’s role in the University’s failure to achieve its 2020 climate targets. As the Committee noted in its preliminary report (p. 9): “The minimal use of cogen throughout the 2010s substantially contributed to the University’s miss of its 2020 climate target. With the grid expected to become cleaner than cogen by 2029, there is a risk that once again the University will find itself using the less climate friendly option for energy generation. In other words, the University that did not baseload cogeneration when it was climate friendly to do so will shift to baseloaded cogeneration just when it is no longer climate friendly to do so.” The University did not provide the community with adequate transparency regarding the minimal use of cogeneration during the 2010s. That minimal use ran counter to the University’s planning under the 2009 Conceptual Plan for Carbon Neutrality (see Preliminary Report, pp. 4-5).
8. The desire to obtain federal tax credits under the Inflation Reduction Act (IRA) was, according to the University, an important factor in its decision to pursue Option 2E, as well as the timing for its decision. Nevertheless, the University did not carry out the necessary analysis regarding eligibility requirement for the credit. To the Committee’s understanding, the University lacked such analysis as late as June 2024, even though concerns were flagged by the Committee in March 2024.
9. The University used contradictory assumptions in its financial analysis and its climate analysis. The contradictory assumptions created a biased impression regarding the financial benefits of the University’s Option 2E. On the one hand, the University claimed its intention to reduce the excess emissions of Option 2E over Option A1 through an early phase-out of baseloaded cogeneration. On the other hand, for its lifecycle cost analysis, the University assumed that baseloaded cogeneration would continue in the long run, resulting in financial benefits to the University over Option A1. The University should not use two contradictory sets of assumptions, one to claim financial advantages (assuming long-term base-loading), then another to try to limit the increase in emissions (assuming a shift away from baseload generation, presumably as early as 2029).
10. The University did not share with the Committee a campus load-curve, which is essential for energy planning. Despite repeated Committee requests, the University did not corroborate its claim regarding peak-load of 200 kpph steam needs.
11. While the University’s Climate Action Plan assumes a 30% decline in campus energy consumption, the University planning for WDEP assumed peak demand would remain constant long into the future. The University was not willing to engage with the Committee regarding options to reduce peak-load through demand-side management.
12. The University’s claims that Option 2E will reduce campus NOx emissions by 50% relative to current emissions has not been supported by data. While the turbines the University plans to install under Option 2E have lower NOx emissions intensity than the existing turbines, the existing turbines are only operated by the University on rare occasions. In distinction, under the University plan, the new turbines will be used continuously for base-loaded cogeneration. The University did not present an analysis of the absolute levels of NO x emissions that would result from its plan to support the claim of 50% reduction.
13. While claiming to be committed to shared-governance principles, the University essentially ignored the Committee’s Preliminary Report, instead repeating claims (including publicly) that were found and documented by the Committee to be incorrect based on available data. The University refused to share relevant planning documents, or to engage the Committee in a meaningful review of the materials that the University developed in April-May 2024.
14. The University’s lack of cooperation with the Committee during April-May 2024, hindered the work of the Committee, and, among other things, hindered the development of additional alternatives to the University’s Option 2E, which may have been even more favorable than Option A1.
15. There was no urgency for the University to finalize its decision by the original April 1 deadline, or by July 2024, as later claimed by the University. Given the regulatory flexibility identified by the Committee, the University’s resiliency needs were met at all times and there was no threat that they would be unmet in the coming years. Further, as discussed in the Preliminary Report, eligibility for tax credits did not present a consideration justifying expediting the decision without appropriate analysis and consideration of alternatives. At the end, the University delayed its decision beyond its original April 1 deadline, but also failed to cooperate with the Committee to develop additional alternatives after April 1.

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A co-published blog by and the Getches-Wilkinson Center at Colorado Law.

The has been the preeminent tool to protect free-flowing rivers in the United States since it was passed more than 50 years ago. Under the Act, rivers with “outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural or other similar values,” as well as their immediate environments, are protected from dams and other potential harms. In spite of its success, the Act largely omits Tribes, failing to give Native Nations the authority to designate, manage, and co-manage Wild and Scenic rivers within their own boundaries and on ancestral lands. Correction of this omission is long overdue, both in terms of equity and the long-term benefit to rivers.

A current example of this omission was brought to our attention through conversations with Indigenous community members along the (LCR) in Arizona. The LCR was threatened in recent years by a series of pumped-storage hydropower projects proposed on Navajo Nation lands by non-Indigenous developers, and against the will of the Navajo Nation, Hopi Tribe, Pueblo of Zuni, and others who find the LCR culturally important. Historically, under the Federal Power Act, proposed hydropower projects have been given a preliminary permit on tribal trust lands by the Federal Energy Regulatory Commission (FERC) against the will of the Tribe whose land the projects would be located on. Indigenous community advocates understandably wanted to know, “What can we do to permanently protect the Little Colorado River from these unwanted hydropower projects?”

Confluence of the Colorado and Little Colorado Rivers within Grand Canyon Photo Credit: Rachel Ellis

Designating a river under the Wild and Scenic Rivers Act is a powerful defense against unwanted dams and diversions–it is the only designation that prevents new dams and diversions on designated rivers. The problem is that since Tribes were largely omitted from the 1968 Act, they were not given the power to designate or manage Wild and Scenic rivers, even on their own lands. That management power currently defaults to the National Park Service, even when a designated river is on tribal lands. To say that this is a disincentive for Tribes to utilize the Wild and Scenic Rivers Act to protect their rivers is an understatement.

And that’s not all. As the Table below shows, Tribes don’t even have some of the powers that have been given to states and private parties under the Act, such as the ability to petition the Secretary of Interior to give Wild and Scenic protections to state-protected rivers, or the ability to receive funding and technical assistance, which both private parties and states can. Co-management/co-stewardship agreements and cooperative agreements are also not explicitly authorized for Tribes in the Act, which is a potential disincentive for federal agencies to explore such agreements with willing, interested, and knowledgeable Tribes.

Entities and their Authorizations in the Wild and Scenic Rivers Act of 1968

*Note that section 10(e) of the WSRA [16 U.S.C. § 1281(e)] has been used to authorize cooperative agreements with tribes, although tribes are not explicitly mentioned in the statute. This has led to an underutilization of cooperative agreements with tribes.

**Under the legacy language of the WSRA, tribes are only protected from land acquisition if they are managing rivers in ways that do not conflict with the Act. Our amendments suggest striking this outdated and inappropriate legacy language.

As sovereign nations, Tribes should at least have the power that states and NGOs have regarding river designations. Tribes should be able to manage Wild and Scenic Rivers on their lands, ask the Secretary of Interior to include rivers protected by Tribes under the Wild and Scenic Rivers Act, be formally authorized to engage in co-stewardship agreements with federal agencies, and have the ability to receive funding and technical assistance when managing rivers on their lands.

Correcting the omission of Tribes in the Wild and Scenic Rivers Act remains long overdue. We heard from both legal scholars and tribal communities that creating a well-researched, draft proposal—which you can —would be the best way to begin an informed conversation. This is in no way intended to be a finished product, but meant to engage Tribes, advocates, and legal thinkers in what might be possible, and in turn help us make that a reality.

Lamar River Valley, Montana Photo Credit: Mike Fiebig

We also realize that proposing to amend a bedrock natural resources law is no small undertaking, and not without some risks. The structure of the Wild and Scenic Rivers Act makes amending the Act easier and less risky than amending other similar laws. Currently, each new river designation is added to the National Wild and Scenic Rivers System through an amendment to the original Act, which means that a new Wild and Scenic designation by a Tribe that includes these proposed amendments would be all that would be necessary to implement them. Furthermore, the Concept Paper proposes extending existing authorities to Tribes through the addition of new sections in the Wild and Scenic Rivers Act, not changes to existing protections that have been settled law for over 50 years. 

In this way, and with your help, we not only propose to retain the protections that the Wild and Scenic Rivers Act has afforded outstanding free-flowing rivers across the county for the last half century, but to expand the ability for Tribes to utilize those same protections to safeguard free-flowing rivers of cultural and ecological importance into the future. Now is the time to address the omission of Tribes in the Wild and Scenic Rivers Act and other bedrock natural resources laws. Doing so would be a measure of restorative justice, while also benefiting Tribes and all life which depends on rivers.  

Please download and read the Concept Paper and Draft Model Legislation, and let us know what you think. We look forward to hearing from you.

Click to download a PDF of the Concept Paper and Draft Model Legislation. Please send feedback, questions, and comments to info@tribalwildandscenic.org or through our website .

The Wild and Scenic Rivers Act Amendments Project was founded in 2021 by , the , and the Getches-Wilkinson Center in response to Indigenous advocates seeking a tool to protect culturally and ecologically important rivers on Tribal lands from FERC-licensed hydropower projects. More input from Tribes, river advocates, and legal scholars is being sought for the next phase of this project.

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Co-hosted by the Colorado Bar Association, Getches-Wilkinson Center and Colorado Law Environmental Law Society.

Thursday, April 18

CLE Panel: 5 – 6:30 PM

Social Hour: 6:30 - 7:30 PM

In-Person Only: University of Colorado, Wolf Law Building (2450 Kittredge Loop Dr)

Deep decarbonization across the globe is necessary to avoid the worst impacts of climate change. States can play an important role in developing and executing effective, tailored decarbonization plans such as Colorado’s Greenhouse Gas Reduction Roadmap. A panel of practitioners and experts will discuss how Colorado is combatting climate change, what is on the horizon for decarbonizing key sources of greenhouse gas pollution, and legal pathways for pursuing these objectives.

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Wyss Scholars Adam Fisher and Mariah Bowman with Sally Jewell

Last week the Getches-Wilkinson Center was honored to host former Secretary of the Interior Sally Jewell for a lunchtime conversation with students at Wolf Law. The event was supported by the and provided an intimate opportunity for students to learn from the Secretary. Moderated by Colorado Law 2023 Wyss Scholar Adam Fisher, a full room of students asked Secretary Jewell questions on topics ranging from her career history to how the conservation movement can take meaningful steps to address the needs of Indigenous Americans. Throughout the conversation, the Secretary enforced both the importance of strong advocacy from all sides of an issue, and the need for students and decisionmakers to listen to, and learn from, these differing points of view. Secretary Jewell advised students to explore, get to know themselves, and find career paths that capitalized on their inherent strengths and interests—with the knowledge that they could affect change from both inside and outside of business, nonprofit, and government institutions. When asked about her views on the future of the conservation movement, Secretary Jewell expressed faith that by working from each of these positions, the next generation would both continue the conservation legacy and carry the torch forward, pushing the movement to make needed changes and address the needs of the future.

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Photo by Robin Loznak; Courtesy of Our Children’s Trust

The Getches-Wilkinson Center and the Getches-Green Clinic recently partnered with Conrad Anker, famed mountaineer, and eight other professional outdoor athletes to submit an amicus curiae brief in the Montana youth climate change case. The brief was submitted to the Montana Supreme Court, which is now considering the youth’s claim that the State of Montana has been violating their state constitutional right to a clean and healthful environment.

On March 13, 2020, 16 youth from across Montana filed a constitutional climate change lawsuit against the state of Montana – Held v. State of Montana. They assert that the state is violating their state constitutional rights by actively promoting fossil fuel extraction and failing to consider the impacts to the environment of Montana.

On August 14, 2023, after an historic trial, Judge Kathy Seeley ruled in favor of the youth plaintiffs, declaring that the State of Montana violated their constitutional rights to a clean and healthful environment. The State then appealed that decision to the Montana Supreme Court.

GWC and the Getches-Green Clinic partnered with Conrad Anker and other outdoor athletes and provided the court with real world stories on the importance of Montana’s constitutional rights and natural resources to the quality of life and recreation-based economy in the state. They also provided information on the latest research demonstrating that benefits to mental, physical, and spritiual health of spending time outside, especially for children and young people.

GWC is also grateful for the help of Domenic Cossi and Western Justice Associates, PLLC, who assisted with the amicus curiae brief. 

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Over 40 �鶹��Ѱ�����Law students joined The Getches-Wilkinson Center on Thursday, October 26th for a delicious lunch and to hear from current GWC Scholar and Fellows. Information on the various scholarships and fellowships and instructions on how to apply for a Summer 2024 or Academic Year 24/25 Scholarship or Fellowship in Natural Resources, Public Lands and Water Law was shared.

Opportunities highlighted:

The Wyss Scholars Program for U.S. Lands Conservation

The Harrison Fellowship in International Water Law

The Charles N. Woodruff Memorial Scholarship

New in 2023: Conscience Bay Company Western Water Policy Fellowship

RECORDING OF THE EVENT CAN BE FOUND HERE:

[video:https://youtu.be/pemOzqt6Odo]

Current �鶹��Ѱ�����Law students Adam Fischer, Ella Merrill and Sierra Meggitt shared their experiences obtaining funding to promote their future career interests.

Adam Fisher is this year’s Wyss Scholar. Fisher, a JD candidate, is Colorado Law's sixth Wyss Scholar. The Wyss Scholarship, given to one Colorado Law student each year, supports graduate-level education for promising leaders in Western land conservation. Recipients receive generous financial assistance to cover the full cost of one year of law school, as well as funds for internship opportunities, research assistance, and postgraduate support.

Ella Merrill, as a Harrison Fellow, partnered with the United Nations Sustainable Development Solutions Network and the Legal Resources Centre in Cape Town, South Africa, to assist with and write about a series of cases that address the right to clean and accessible drinking water, guaranteed by the South African Constitution. One series of cases addresses decades of mismanagement of the country’s water and sanitation services system, and the numerous human rights fallouts that have resulted. Another series of cases focuses on the way water conservation efforts have led to the displacement of indigenous subsistence fishermen, including several fatal shootings by game rangers.

Sierra Meggitt, as the Charles N. Woodruff Fellow, worked with Western Resource Advocates and the Getches-Wilkinson Center’s Water Fellows on issues surrounding oil shale water rights in Colorado. Additionally, with assistance from the Sandgrund Environmental Law Fellowship, Sierra is worked with American Rivers, conducting research at the intersection of the Antiquities Act, river protection, and tribal co-management.

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On Tuesday, October 24th the Environmental Law Society (ELS), Getches-Wilkinson Center, and Career Development Office (CDO) co-hosted an Environmental Law Networking Happy Hour for current students and lawyers working in the environmental law space! It was such a great evening of networking and connection. We had over 70 individuals attend, including 25 law professionals from an array of work including private practice, large firms, non-profit and government sectors. Thank you to all who joined us and shared their career background and advice with our Law students!

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University of Colorado Law School student Adam Fisher (’24) has been named the 2023-2024 Colorado Law Wyss Scholar in U.S. Lands Conservation. Fisher, a J.D. candidate, is Colorado Law’s sixth Wyss Scholar. , awarded to one Colorado Law student each year, supports graduate-level education for promising leaders in United States land conservation. Recipients receive generous financial assistance to cover the full cost of one year of law school, as well as funds for internship opportunities, research assistance, and postgraduate support. Wyss Scholars learn the latest in conservation law and policy and apply that knowledge in careers at land management agencies and nonprofit conservation groups.

Adam grew up adventuring in the woods and waters of Michigan, exploring from small patches of urban forest to the coastline of the Great Lakes.  A caving trip to Kentucky in 2006, while studying environmental policy at the University of Michigan, reawakened his sense of adventure and ignited a passion to work with public lands.  

Upon graduation, Adam spent the next thirteen-year chapter of his life immersed in the American West.  During this time, Adam served as an instructor and course director for the Colorado Outward Bound School, program director for a national nonprofit focused on accessible outdoor sports, a professional mountain guide and avalanche instructor, and as a consultant for outdoor recreation businesses.  At the same time, Adam stayed engaged with public land issues — participating in events like Secretary of the Interior Sally Jewel’s 2016 community meeting in Bluff, UT, during the initial development of Bears Ears National Monument.  These experiences grew Adam’s commitment to public lands and kindled an interest in the law, leading him to join the natural resources program at �鶹��Ѱ�����Law.  Adam lives in Louisville, CO, with his wife, Austa, and their dog, Eldo.

Adam is committed to spending his career negotiating new public land designations, advising decision-makers, working with tribes, and advocating for public land conservation.  While at �鶹��Ѱ�����Law, Adam has clerked for The Access Fund and The Wilderness Society, as well as interned with the Honorable Nina Y. Wang of the U.S. District Court for the District of Colorado.  During this time, Adam has appreciated the opportunity to work on public land issues ranging from appealing a BLM Resource Management Plan to the Interior Board of Land Appeals, to defending a broad interpretation of the president’s power to designate national monuments under the Antiquities Act.  He has also written on how updates to the legal framework governing recreation fees can help prepare the public land system for the modern reality of increased visitation.  In summer 2023 Adam will be clerking with the Department of Justice’s Environment & Natural Resources Division in Denver before returning to �鶹��Ѱ�����Law for his 3L year.

Upon graduation from �鶹��Ѱ�����Law, Adam hopes to engage with critical, emerging issues in the public lands space.  For example, Adam believes that meaningful tribal co-management of federal public lands has significant potential to create both positive environmental and social outcomes and is excited to further explore the practical implications of such policies.  Similarly, in the effort to reduce the amount of greenhouse gas emissions derived from public lands, he is excited to work toward strategies that help communities previously dependent on fossil fuel extraction transition to a “new normal” in a manner that is both equitable and respectful of their cultural heritage.  In sum, Adam hopes to use the power of law and policy to connect Americans from all walks of life to their public lands in a manner that balances robust access with conservation. 

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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.

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