Prepared Remarks of Attorney General Phil Weiser ABA Section of Environment, Energy, and Resources 48th Spring Conference
ABA Section of Environment, Energy, and Resources 48th Spring Conference
Grand Hyatt Hotel, Denver, Colo.
March 28, 2019
Thank you to the ABA Section of Environment, Energy and Resources for hosting me today. It is truly an honor to be here. I am also especially honored that so many of Colorado’s state agencies will be represented across these three days; to take a few examples, Jen Opila, from CDPHE, is presenting on emerging issues in recycling, Garry Kauffman from CDPHE is discussing air quality issues, and Ginny Brannon, the Director of DRMS, will discuss “cooperative federalism.”
Today marks the Environment Section’s 48th Spring Conference. And at this moment in history, it is important for us to look back to the Section’s very first spring conference, held in 1971. That meeting was also in Denver, and, as it turns out, was also in a conference room (although, I’m guessing, a much smaller conference room).
1971 was an extraordinary time in natural resources law. Indeed, the early 1970’s are to Environmental Law as the late 1780’s are to Constitutional Law. In just a few short years, and with bipartisan support, we enacted four of the cornerstones of environmental protection in this county: the Clean Air Act, the Clean Water Act, the Endangered Species Act, and NEPA, a law some refer to as the “Magna Carta of Environmental Protection.” The late, great David Getches said it best: it was at that moment when our federal government began “its ambitious regulation of activities affecting not only federal property but the common resources of air and water.” And it is the great statutes of that era that, for two generations, have defined our relationship to our land, air, and water.
Many of these statutes also set out a new jurisdictional model for federal and state cooperation. This model is often called “cooperative federalism” and it is more relevant today than ever. I have studied how this model works, and I am committed to making it work effectively as Colorado Attorney General.
Fortunately, there are reasons for optimism. If this time brings changes and challenges, it will also bring enormous opportunities. And so today, I would like to talk to you about some of the work of the Attorney General’s Office in the area of environmental and natural resources law. Some part of this work is spent on “defense” – doing what is needed to ensure that key legal protections for Colorado’s land, air, and water are kept in place, and are not lawlessly ignored or flouted. We’ll talk a bit about that. But I also want to talk about the ways in which our Office has worked on innovative solutions to move Colorado forward.
When I think about when Colorado should get involved in national litigation, I ask a two-part question: is an action against the law, and does it hurt Coloradans? And when it comes to threats to undermine the protection of our land, air, and water, the answer is often pretty clear.
Take, for example, air quality. Under a previous administration, Colorado sued to stop the Clean Power Plan from coming into effect. As Attorney General, one of my first official acts was to remove our State from this challenge. I did so because, in my view, the Clean Air Act authorizes the plan. Moreover, when you look to the impact of climate change here in Colorado, whether in wildfires, lower crop yields, or harm to our outdoor recreational economy, to name but a few, the danger is real. Climate change isn’t only a threat for our grandchildren – it’s a threat right now.
Equally important for us to address is the federal government’s arbitrary effort to roll back EPA Tier 3 emissions standards for light and medium-duty vehicles. The Clean Air Act, under which these standards were first set out, is a critical exercise in cooperative federalism. The statutory structure works, and was designed to work, by allowing the federal government and states to consistently rely on one another. When the federal government chose to arbitrarily undermine the emissions standards without grounding the decision in the science, as well as arbitrarily consider the revocation of the California waiver, we filed an amicus brief to challenge the decision.
As many of you know, we have a first-rate Natural Resources and Environment Section, led by my incredible Deputy Amy Beatie. Much of our work involves developing collaborative solutions to some of the toughest environmental problems we’ll face.
A great example of how we engage in collaborative problem-solving here in Colorado is water management. Colorado is a semi-arid state, and how we use and manage our water will shape not just our future, but will also be a model for the country. Unfortunately, we have examples of how not to manage water. Take Crowley County, just a few hours south of here, as a case in point. There, individual farmers chose to sell off their water rights in exchange for a one-time payoff, with the result that a once thriving agricultural economy was, quite literally, reduced to dust.
We have, however, learned from those days, and today Colorado is committed to the “Colorado Water Plan,” a comprehensive set of solutions covering everything from water usage rates to smart storage to ensure that even as our population grows, and even as climate change causes our snowpack to decline, we still have the water we need to thrive. This work was a grassroots effort designed to articulate and help develop what our water future should look like.
As the Attorney General, I have the opportunity to sit on the Colorado Water Conservation Board, a truly special institution charged with driving the implementation of the Colorado Water Plan. As a body, we both learn about and support innovative projects taking place in Colorado to address our water challenges, including Colorado’s first-ever floating solar array in Jackson County, which powers a drinking water treatment facility. This project not only provides a practical and innovative solution, it offers valuable job training to the workers who take part in the effort. This is just the sort of project we need to support a vibrant future for our rural communities.
We’ve also just recently adopted pathmarking rules regarding ground and surface water in Colorado’s San Luis Valley, which has a unique hydrology. Just days ago, after almost a year of waiting, we received a state court decision approving these rules. This is the latest and most significant step in a process that began in the 1970s, when Colorado’s State Engineer first attempted to adopt groundwater use rules for the Valley. The rules require well users to replace stream depletions caused by their wells that injure senior surface water rights. They also require well users to achieve and maintain sustainable water supplies in most of the aquifers of the Valley, an approach to groundwater management that is very rare worldwide and unprecedented in the arid West.
Our Office works at the heart of these efforts, from negotiating crucial interstate compacts to convening stakeholders representing the various watersheds across Colorado. And in the future, we aim to go even further, working to help make Colorado a worldwide leader in water conservation and management technologies.
A second area for optimism comes in bringing an innovative mindset to recycling and sustainable practices. Our Office has the chance to be a leader on this front, whether through consumer education, through the advice we give to clients, or by convening key stakeholders.
In 2016, CDPHE’s Solid Waste Program finalized a Colorado Integrated Solid Waste and Materials Management Plan to facilitate the development of disposal, collection, and diversion options for geographic regions. It will help identify solutions for Colorado’s waste management future.
And in 2017, the Solid and Hazardous Waste Commission adopted a resolution identifying waste diversion goals for Colorado’s different geographic areas through 2036, which are realistic waste reduction goals that promote sustainability, recycling, and other management practices.
Our office assisted CDPHE with client advice on both developing the Plan and the Resolution, including advising the Commission, and we look forward to similar collaborative efforts in the future.
Third, I want to touch on our State’s efforts to address PFAS in Colorado. PFAS has received nationwide attention as an emerging contaminant. In Colorado, we have seen this contamination infiltrate drinking water systems in places like Fountain and Security-Widefield. Unfortunately, we are also finding these contaminants in other groundwater resources across the state. While the federal government has reacted slowly in providing regulatory guidance, Colorado has diligently worked to protect the public health and environment from future exposure to these emerging contaminants.
As a result of our efforts thus far, we have adopted a groundwater standard for the Fountain Aquifer that is driving the Air Force to mitigate harmful impacts and remediate PFAS. Colorado has also listed PFAS as a hazardous substance, which will help identify other areas of PFAS contamination. Our office, together with our clients, acts as a nationwide leader in addressing PFAS and we will continue to remain out front to ensure the protection of Colorado’s water resources. This is an example of what Justice Brandeis had in mind about federalism when he called the states “laboratories of democracy.”
Finally, I want to mention that, when the private sector adopts best practices and promotes sustainable solutions, we will champion such efforts. We will also take action when companies mislead consumers. Consider, for example, the case of Fiat/Chrysler & Bosch lying to consumers about the emissions of automobiles and working to cheat emissions tests. As I said in announcing this settlement, “to support responsible businesses, it is crucial that we hold companies accountable for irresponsible behavior like this.”
In sum, we are not standing still. Because today, just as in 1971, there are both great challenges and great opportunities.
Finally, I want to close by pointing out how special, and how important, this group here today is. The first ancestor of this section, the ABA Section on Mineral Law, began in 1928 with just 360 members. Today, the Section has over 10,000 lawyers, ethical, dedicated, and committed professionals who have chosen to use the law to help us steward our most valuable resources. Thank you for all you do. Working together, I know we can accomplish extraordinary things.
Thank you for your important work.