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Let's Talk Protecting Endangered Species, Clifford J. Villa, Ty Bannerman, Will Cavin, Taylor Jones, Ari Biernoff Aug 2019

Let's Talk Protecting Endangered Species, Clifford J. Villa, Ty Bannerman, Will Cavin, Taylor Jones, Ari Biernoff

Faculty Scholarship

The Trump Administration recently changed Endangered Species Act regulations affecting how species are removed from endangered status and streamlining permits for the oil and gas and ranching industries. Environmentalists say the rules weaken protections. How could the new rules change industry and conservation in New Mexico?


Gold King Mine Spill: Environmental Law And Legal Protections For Environmental Responders, Clifford J. Villa Jun 2019

Gold King Mine Spill: Environmental Law And Legal Protections For Environmental Responders, Clifford J. Villa

Faculty Scholarship

On August 5, 2015, EPA contractors working at the Gold King Mine in southwestern Colorado accidently released approximately three million gallons of contaminated mine water into the drainage of the Animas River. The water contained metals which created a bright orange plume that coursed down the Animas River and into the connecting San Juan River for many days, attracting nationwide attention and creating great concern for many local communities. The plume touched at least three states, three tribes, and numerous municipalities. The release fortunately did not prove an environmental catastrophe as many people feared at the time. However, it did ...


Book Review: Jonathan P. Thompson, River Of Lost Souls: The Science, Politics, And Green Behind The Gold King Mine Disaster (2018), Clifford J. Villa Jan 2019

Book Review: Jonathan P. Thompson, River Of Lost Souls: The Science, Politics, And Green Behind The Gold King Mine Disaster (2018), Clifford J. Villa

Faculty Scholarship

On August 5, 2015, contractors for the U.S. Environmental Protection Agency (EPA) investigating the Gold King Mine in southwestern Colorado accidently released some three million gallons of contaminated water into the Animas River, triggering weeks of front-page headlines, months of congressional hearings, and now years of litigation. River of Lost Souls: The Science, Politics, and Greed Behind the Gold King Mine Disaster, a new book by Jonathan P. Thompson, suggests by its title a human folly behind this “disaster” much broader and deeper than one tragic accident wrought by EPA contractors. On this thesis, Thompson certainly delivers. However, what ...


Can A State's Water Rights Be Damned? Environmental Flows And Federal Dams In The Supreme Court, Reed D. Benson Jan 2019

Can A State's Water Rights Be Damned? Environmental Flows And Federal Dams In The Supreme Court, Reed D. Benson

Faculty Scholarship

Interstate rivers are subject to the doctrine of equitable apportionment, whereby the Supreme Court seeks to ensure that all states that share such rivers get a fair portion of their benefits. The Court has rarely issued an equitable apportionment decree, however, and there is little law on whether the doctrine protects river flows for environmental purposes. The ongoing Florida v. Georgia litigation in the Supreme Court raises this issue, as Florida seeks to limit consumptive uses by upstream Georgia to preserve flows in the Apalachicola River, which provide both economic and environmental benefits. This Article summarizes both the equitable apportionment ...


Property Provisions Of The Joint Operating Agreement: An Update For The New 2015 Form Joa, Alex Ritchie, Gary B. Conine Apr 2018

Property Provisions Of The Joint Operating Agreement: An Update For The New 2015 Form Joa, Alex Ritchie, Gary B. Conine

Faculty Scholarship

The joint operating agreement (JOA) in the oil and gas industry helps coordinate joint operation efforts that facilitate exploration and unitization of tracts, and conservation of a depleting resource. Professor Conine’s 1988 article expanded, limited, and defined the property interests of the parties both inside and outside the contract area. This article is an update to those prior works with greater emphasis on the 1989 Form JOA, cases and developments since its publication, and the implications of the revisions to the JOA in the new 2015 Form JOA published by the American Association of Professional Landmen (AAPL).

The purposes ...


Albuquerque Journal Interviews Reed Benson, Supreme Court Hears Nm-Texas Water Dispute, Reed D. Benson Jan 2018

Albuquerque Journal Interviews Reed Benson, Supreme Court Hears Nm-Texas Water Dispute, Reed D. Benson

Faculty Scholarship

Article by Michael Coleman

Quote:

Reed Benson, a University of New Mexico professor specializing in water law, said the Supreme Court’s task in deciding the U.S. government’s role is “very legalistic – very much a technical reading of what is and is not in the compact.”

“I actually have thought that New Mexico’s chances in front of the nine justices may be a little bit better than some people thought,” Benson said. “Some of those justices may be persuaded by the plain text argument – that New Mexico’s obligations are measured at Elephant Butte and once New ...


Keeping Power In Charge: Federal Hydropower And The Downstream Environment, Reed D. Benson Jan 2018

Keeping Power In Charge: Federal Hydropower And The Downstream Environment, Reed D. Benson

Faculty Scholarship

This article examines legal issues regarding hydropower, fish and wildlife at federal water projects in the West. It begins by briefly explaining the legal and institutional framework for federal water projects that generate hydropower. The following section summarizes relevant laws and policies for fish and wildlife protection in relation to federal hydropower operations, focusing primarily on the application of the ESA in this context. The article then considers the case of Glen Canyon Dam, where the Bureau and the National Park Service recently adopted a new operating plan after an extensive review that addressed hydropower, the needs of two very ...


New Mexico’S Renewable Portfolio Standard: Analysis Of Existing Policy Design Elements And Compliance Obligations Beyond 2020, Gabriel Pacyniak Jan 2018

New Mexico’S Renewable Portfolio Standard: Analysis Of Existing Policy Design Elements And Compliance Obligations Beyond 2020, Gabriel Pacyniak

Faculty Scholarship

This white paper analyzes two elements of New Mexico’s current Renewable Portfolio Standard (RPS) in advance of the state legislature’s consideration of an RPS expansion in the 2019 legislative session. First, the paper surveys key policy design elements of the current RPS, compares those elements to other state RPSs, and identifies “policy considerations” that may inform legislative or regulatory action. Among the findings from this part of the analysis are that: 1) other states have set much higher RPS targets; 2) that New Mexico’s RPS has uniquely restrictive cost-containment measures that limit cost impacts but also prohibit ...


Imputing Regulatory Failures In Oil And Gas Licensing: A Discussion And Proposal, Joseph A. Schremmer, Charles C. Steincamp Jan 2018

Imputing Regulatory Failures In Oil And Gas Licensing: A Discussion And Proposal, Joseph A. Schremmer, Charles C. Steincamp

Faculty Scholarship

This Article argues that the Commission's legitimate interest in enforcing its oil and gas regulations, especially including well-plugging regulations, does not justify absolute imputation of regulatory liability to third-party operators under Kan. Stat. Ann. § 55-155(c)(4). But, under certain circumstances, the state's interest may justify imputing personal liability on the individual constituents of a license applicant where the individual is culpable for the underlying regulatory violation or the applicant has a business connection with the operator primarily responsible for the violation, and the competing public policies of groundwater protection and limited liability justify the imputation. This Article ...


Is There A Right To Life For The Colorado River?, Reed D. Benson Dec 2017

Is There A Right To Life For The Colorado River?, Reed D. Benson

Faculty Scholarship

A recent lawsuit, declaring the Colorado River has legal rights of its own, received national attention in the New York Times and High Country News. While the lawsuit had no chance of success, it highlighted important issues.


Making The Most Of Cooperative Federalism: What The Clean Power Plan Has Already Achieved, Gabriel Pacyniak Dec 2017

Making The Most Of Cooperative Federalism: What The Clean Power Plan Has Already Achieved, Gabriel Pacyniak

Faculty Scholarship

The fate of the EPA's Clean Power Plan-the signature Obama Administration action to reduce greenhouse gas ("GHG") emissions from existing power plants under the Clean Air Act-is uncertain at best given pending litigation and the opposition of President Donald Trump. Despite this uncertainty, the development of the Clean Power Plan provides an important case study of how rulemaking under a cooperative federalism statutory structure can prompt broad, beneficial policy engagement by states and stakeholders, even in a contentious regulatory action. In the development of the Clean Power Plan, active state and stakeholder engagement and an iterative process of "trying ...


Reducing Transportation Emissions In The Northeast And Mid-Atlantic: Fuel System Considerations, Gabriel Pacyniak, Drew Veysey, James Bradbury Nov 2017

Reducing Transportation Emissions In The Northeast And Mid-Atlantic: Fuel System Considerations, Gabriel Pacyniak, Drew Veysey, James Bradbury

Faculty Scholarship

In support of states interested in learning more about market-based policy options, the Georgetown Climate Center developed Reducing Transportation Emissions in the Northeast and Mid-Atlantic: Fuel System Considerations to explore technical aspects of a possible regional cap-and-invest policy, as an illustrative example of a market-based approach to a multi-state transportation policy. The paper focuses on two subjects: which fuels might be covered under a policy, and which entities in the transportation fuel supply chain might be responsible for reducing emissions.

The recommendations made in this paper are intended to support robust market-based policies that provide flexibility and enable innovation while ...


An Examination Of Policy Options For Achieving Greenhouse Gas Emissions Reductions In New Jersey, Gabriel Pacyniak Oct 2017

An Examination Of Policy Options For Achieving Greenhouse Gas Emissions Reductions In New Jersey, Gabriel Pacyniak

Faculty Scholarship

An Examination of Policy Options for Achieving Greenhouse Gas Emissions Reductions in New Jersey surveys emissions and energy trends, describes a “deep decarbonization pathway” for the state, and identifies the types of policies that would be necessary to achieve those reductions. Many of the policies address the power and transportation sectors, which account for more than 60 percent of total greenhouse gas emissions from New Jersey. The report also includes options for improving building efficiency, reducing methane leaks from natural gas infrastructure, restoring natural carbon sinks in forests and wetlands, and incorporating equity considerations to address the needs of frontline ...


Is The "Act Of God" Dead?, Clifford J. Villa Jul 2017

Is The "Act Of God" Dead?, Clifford J. Villa

Faculty Scholarship

In more than twenty years with the U.S. Environmental Protection Agency (EPA) before joining the legal academy, I saw many communities affected by fires, floods, hurricanes, earthquakes, and other natural disasters. However, I never saw a case where the act of God defense prevailed against environmental liability. Confirming this personal experience, I later learned that the number of reported cases where the act of God defense had prevailed against environmental liability, under all statutes and all federal circuits, was also exactly zero.

This raises two obvious questions: (1) why does the act of God defense so often fail? and ...


New Strategies For Reducing Transportation Emissions And Preparing For Climate Impacts, Gabriel Pacyniak, Kathryn Zyla, Vicki Arroyo Jan 2017

New Strategies For Reducing Transportation Emissions And Preparing For Climate Impacts, Gabriel Pacyniak, Kathryn Zyla, Vicki Arroyo

Faculty Scholarship

The transportation sector is becoming the largest source of greenhouse gas ("GHG") emissions in the United States. The Obama Administration put in place federal vehicle and fuel standards that are significantly reducing emissions. However, these regulations will be insufficient to put the United States on track to achieve needed reductions needed long-term. This is especially true if the 2025 standards announced by the Obama Administration are rolled back by the new Trump Administration. Because current federal standards alone will not attain ambitious climate goals and may be rolled back, state and local activity is essential to make progress towards meeting ...


Reviewing Reservoir Operations: Can Federal Water Projects Adapt To Change?, Reed D. Benson Jan 2017

Reviewing Reservoir Operations: Can Federal Water Projects Adapt To Change?, Reed D. Benson

Faculty Scholarship

This Article begins by reviewing the purposes for federal water projects, and identifies some of the trade-offs involved in operating projects for certain purposes. It then addresses the legal factors that determine or influence project operations, beginning with project authorizing statutes and ending with federal environmental laws. The Article examines Corps and Bureau policies regarding project operating plans, the reasons for agency reluctance to review and revise their plans, and some of the factors that prompt the agencies to proceed with reviews. It then summarizes periodic review requirements in two analogous contexts—federal land management plans, and hydropower project licenses ...


State Innovation On Climate Change: Reducing Emissions From Key Sectors While Preparing For A New Normal, Gabriel Pacyniak Jul 2016

State Innovation On Climate Change: Reducing Emissions From Key Sectors While Preparing For A New Normal, Gabriel Pacyniak

Faculty Scholarship

Climate change is a global phenomenon that is causing sea levels to rise, floods and droughts to become more severe, and countless other impacts. States are implementing many innovative initiatives that are helpful models for other state and federal action—catalyzing changes well beyond their borders. State and local governments possess important legal authorities in areas such as utilities regulation, infrastructure investment, and land use—governing important policies, programs and investments that have long-term consequences in the fight against climate change. More recently, states have begun to undertake efforts to prepare for the consequences of climate change—developing “adaptation plans ...


Flint Drinking Water Contamination: Frames Of Reference, Clifford J. Villa Apr 2016

Flint Drinking Water Contamination: Frames Of Reference, Clifford J. Villa

Faculty Scholarship

Presentation given at Harvard Law School on Flint, Michigan, lead toxicity and what we can do as a matter of law.


Biagaweit: Securing Water From The Mighty River In The Snake River Basin Adjudication, Jeanette Wolfley Jan 2016

Biagaweit: Securing Water From The Mighty River In The Snake River Basin Adjudication, Jeanette Wolfley

Faculty Scholarship

This symposium article describes the Shoshone and Bannock peoples journey to quantify their water rights in the SRBA. It begins with the Shoshone-Bannock Tribal cultural perspective on water and water rights. It then discusses the concept of tribal homelands and the water required and necessary for sustaining a tribally reserved home as guaranteed in the Fort Bridger Treaty of 1868, including a discussion of the Winters doctrine which affirms the treaty's promises. It concludes with a review of the Fort Hall Indian Water Rights Agreement. 'Biagaweit' is the Shoshone word for the Snake River. The mighty Snake River begins ...


The Dawning Of Disaster Law, Clifford J. Villa Jan 2016

The Dawning Of Disaster Law, Clifford J. Villa

Faculty Scholarship

What really matters, what unites disasters of all stripes, including earthquakes in Japan, tornadoes in Oklahoma, oil spills in the Gulf of Mexico, and the terrorist attacks on 9/11, is how you respond during the disaster, how you recover from it afterwards, and how you prepare - or better, prevent - the next disaster from happening. This is what disaster theorists, including Professor Dan Farber at Berkeley Law, term the "disaster cycle." In simplest terms: readiness, response, and recovery.


You Gotta Fight For The Right To Vote: Enfranchising Native American Voters, Jeanette Wolfley Oct 2015

You Gotta Fight For The Right To Vote: Enfranchising Native American Voters, Jeanette Wolfley

Faculty Scholarship

Five decades ago, the Congress passed the Voting Rights Act of 1965. Since its passage, the Voting Right Act has created the opportunity to vote for many racial and language minorities across the country, and has survived many challenges until 2013. The U.S. Supreme Court issued two decisions involving voting rights in its 2012-2013 term. On June 25, 2013, in Shelby County v. Holder, a divided Supreme Court struck down Section 4 - a key provision of the 1965 Voting Right Act (VRA) - as unconstitutional. On June 17, 2013, one week before the Shelby County decision, the Court decided another ...


Ksfr Interviews Clifford Villa On The Animas River Spill, Clifford J. Villa Aug 2015

Ksfr Interviews Clifford Villa On The Animas River Spill, Clifford J. Villa

Faculty Scholarship

Professor Clifford Villas offers perspective on the Animas River spill in segment entitled, "First News: N.M. Governor, Senators Seek Answers From EPA Over Mine Spill".

Animas River Spill: 0:01-2:40 Professor Villa's quotes appear at 1:27-1:51 and 2:06-2:31; KSFR First News


Clearing Up Questions On River Spill, Clifford J. Villa Aug 2015

Clearing Up Questions On River Spill, Clifford J. Villa

Faculty Scholarship

What-are the impacts of mine contamination, and who is responsible for cleaning it up?


Reducing Greenhouse Gas Emissions From Transportation: Opportunities In The Northeast And Mid-Atlantic, Gabriel Pacyniak Jul 2015

Reducing Greenhouse Gas Emissions From Transportation: Opportunities In The Northeast And Mid-Atlantic, Gabriel Pacyniak

Faculty Scholarship

The report finds that clean transportation policies could cut greenhouse gas emissions between 29 to 40 percent in the TCI region by 2030. A comprehensive implementation of state policies could result in net cost savings of up to $72.5 billion over 15 years for businesses and consumers, along with tens of thousands of new jobs and improvements in public health.


As Long As The Water Shall Flow: Bringing Water To Tribal Homelands, Jeanette Wolfley Apr 2015

As Long As The Water Shall Flow: Bringing Water To Tribal Homelands, Jeanette Wolfley

Faculty Scholarship

Only the first page is uploaded. Please contact the UNM Law Library on accessing the full text.


Protecting River Flows For Fun And Profit: Colorado's Unique Water Rights For Whitewater Parks, Reed D. Benson Jan 2015

Protecting River Flows For Fun And Profit: Colorado's Unique Water Rights For Whitewater Parks, Reed D. Benson

Faculty Scholarship

Since 2001, Colorado has recognized a special type of water right for whitewater parks, which are constructed within a river channel to provide play features for kayakers and other boaters. These water rights, called "recreational in-channel diversions, " are unique to Colorado, even though whitewater parks exist in several western states. This Article addresses some of the underlying reasons that recreational in-channel diversions were established in Colorado, and traces the controversy surrounding their recognition by that state's courts and legislature. Over the last decade, however, the controversy has largely died away, and whitewater park rights have now become an accepted ...


The Greenback, The Humpback, And The Silverback: How A Third Wave Of Federal Water Policy Could Benefit The West, Reed D. Benson Dec 2014

The Greenback, The Humpback, And The Silverback: How A Third Wave Of Federal Water Policy Could Benefit The West, Reed D. Benson

Faculty Scholarship

Proposing any major new federal initiative regarding water in the western United States might seem preposterous, given conventional wisdom and entrenched positions on state control of water resources. But there is a strong rationale, and a growing imperative, for a new federal water .policy for the West. Many river basins face serious problems as limited water supplies are over-allocated, demands continue to increase, and climate change promises to exacerbate the West's perennial problems of scarcity and variability. Solutions to such problems are likely to be expensive and will need to address national interests as well as state and local ...


Tribal Environmental Programs: Providing Meaningful Involvement And Fair Treatment, Jeanette Wolfley Jan 2014

Tribal Environmental Programs: Providing Meaningful Involvement And Fair Treatment, Jeanette Wolfley

Faculty Scholarship

Tribal governments are developing and implementing federally authorized and/or approved tribal environmental programs in the areas of water quality, air quality, and solid waste. As part of this federal delegation process there are federal requirements relating to due process and fair treatment of the public and stakeholders who may be affected by the tribal environmental laws and regulations. This article explores and examines public participation and due process within the tribal context and proposes tribal institutions are in the best position to articulate the tribal cultural and social norms of public participation and fair treatment. It is through this ...


Creatures Of Circumstance: Conflicts Over Local Government Regulation Of Oil And Gas, Alex Ritchie Jan 2014

Creatures Of Circumstance: Conflicts Over Local Government Regulation Of Oil And Gas, Alex Ritchie

Faculty Scholarship

Scholars periodically note the impending upsurge in local oil and gas regulation, offering various reasons for increased local action. Papers written only a few years ago attribute greater local action in the West to population growth, increased urbanization, and increased demand for energy. Consider, however, more recent phenomena. First, population migration from more liberal states to more traditionally conservative producing states likely plays a role, as new residents [11-4] bring perspectives opposing drilling activity. Second, while the suburbs continue to expand into the oil patch, the oil patch has expanded into the suburbs and urban areas as well. Hydraulic fracturing ...


Environmental Issues In The Allocation And Management Of Western Interstate Rivers, Reed D. Benson Jan 2014

Environmental Issues In The Allocation And Management Of Western Interstate Rivers, Reed D. Benson

Faculty Scholarship

No abstract provided.