Recent LLM Graduate Jose Henriquez Sends Regards From Sunny Santiago

For those of us in the northern hemisphere, there is hope that winter will be replaced (at some point) by summer!

And this picture, from Santiago, Chile, is evidence of that.

Jose Henriquez, a December 2009 LLM graduate from Santiago, Chile, is shown in the picture along with his parents, sisters, brothers-in-law, and little niece. They are enjoying a nice summer's day in the southern hemisphere as well as his full time return to his home country.

Jose graduated in December 2009 and returned to sunny Santiago about mid-December. It was a pleasure to have him in Denver and to get to know him as well. Jose comes from a long line of attorneys, with his mother, father, and grandmother members of the legal profession. He joins a select group of Chilean lawyers who have competed the LLM program at DU. We salute Jose on his achievement and look forward to staying in touch with him (and hopefully visiting his país bonito) in the future.

For any of you professional basketball fans, you will be able to tell quickly which one is Jose. He's the guy with the "Nuggets" shirt on! (The Denver Nuggets are the local team in the National Basketball Association.)

¡Feliz año nuevo a Jose y la familia de Jose! Happy new year to Jose and his family!

New Law in China Bolsters Renewable Energy Industry

In late December China's legislative body, the National People's Congress, passed an amendment to the country's renewable energy law under which electricity grid companies, which are owned by the state, will be required to buy all renewable energy output generated in China.

State-owned grid companies that refuse to abide by the new law will be "fined up to an amount double that of the economic loss of the renewable energy company," the Xinhua News Agency reported ("China Amends Law to Boost Renewable Energy Law," Dec. 26, 2009). While in 2008 China generated the fourth largest amount of wind power in the world, about one-third of it never reached the grid, Xinhua reported.

"Renewable energy power in the country's resource rich, underdeveloped northwestern region must be sent to the resource-scarce, prosperous coastal area," Wang Zhongying, Energy Research Institute head of renewable energy development, told Xinhua.

Bearing this in mind, one of the major challenges facing China is the absence of a "smart grid" that could obviate some of the transmission issues associated with bringing more renewables to load centers. This observation has been made by many including, most recently, an article in The Wall Street Journal ("Chinese Law Aims to Increase the Use of Renewable Energy," Dec. 28, 2009), in which reporter Shai Oster writes, "China's electricity-grid operators need to develop a smarter network to handle how to dispatch electricity generated by wind or solar energy, which fluctuates widely depending on weather patterns, and to relate it to demand for power, which swings in different cycles."

The transmission issues sounds rather familiar, don't they. There is a great deal to be done -- whether in the China, the EU, or the U.S. -- to address the transmission issues.

"Emerging International Framework in Sustainable Natural Resources Development" Short-Course Begins; Need for Global Investment Rules Highlighted

The cutting edge series Sustainable Natural Resources Development kicked off its 2010 course offerings with the "Emerging International Framework for Sustainable Natural Resources Development," a five-day intensive short-course being offered by the DU College of Law.

The course, which is the first in a four-course series that will take place in 2010, is led by three outstanding practitioners in this area: Luke Danielson, a Colorado attorney with significant experience working in the natural resources sectors; Cecilia Dalupan, an attorney licensed in Colorado and the Philippines who also has a long-time career in issues involving sustainability and natural resources; and David Szablowski, assistant professor of Law and Society at York University in Toronto and author of Transnational Law and Local Struggles: Mining Communities and the World Bank. Mr Danielson and Mr. Dalupan are also principals in the Sustainable Resources Strategies Group.

Monday's course included an overview of the "rules of the road for global natural resources development" and consideration of "where these rules might come from" from Mr. Danielson. There was discussion of one treaty regime, involving climate change, and lessons that might be learned in terms of the natural resources sector that was presented by Ms. Dalupan.

A highlight of Monday's session was a presentation by Doug Silver, CEO and chairman of International Royalty Corporation (IRC). IRC is a global mineral royalty company that holds 84 royalties.

Mr. Silver addressed the topic of "Why Natural Resources Investors Want There to be Some Global Rules," a matter of immense importance in terms of issues that are key to investors in the natural resources sector. In his role, Mr. Silver talks with investors on a regular basis. He noted that mutual fund managers tend to have considerable interaction with the companies in which they hold stock. "The investors are part of the company, so when I am talking about things I am doing in the business I talk to them," he said.

As a result, Mr. Silver is a unique position to speak about what investors want to know about the minerals business. He brought that unique perspective into Monday's session.

In summary, he said investors want standards in place in the minerals sectors "because investors want to be able to compare investments." In particular, investors are concerned with reporting in four key areas:

1. Resources and reserves
2. Accounting
3. Physical environment
4. Social environment

By having access to these standards, investors can compare one investment opportunity with another. In most instances investors look for a standard reporting scheme because the more different standards are involved, the more difficult it is to make a definitive comparison. For that reason, the use of international standards is becoming more important. Being able to rely on a common set of standards works to "de-risk" an investment, he said, since there is no need to learn the nuances of different systems.

Looking ahead, he mentioned that there are several key concepts to bear in mind in large minerals-related development projects:

1. Cross border deals are now normal
2. Using a common set of standards leads to better transparency, which is a core principle of sustainable development
3. The International Financial Reporting Standards scheme is becoming the focal point of minerals related-projects.

Leading European Parliamentarian Says it is Time for UN to Abandon "Consensus Style" Decision-Making

Determining whether the recent UN Climate Change Conference was a success or not depends in large measure on one's own perspective.

But what remains without doubt is that the UN decision-making process that requires consensus -- among more than 190 member states -- is a very difficult bar to reach under any circumstances. Bearing that in mind, is there something that the UN might learn from the European Union, another governmental body that has faced its own challenges over time with consensus-based decision-making?

Guy Verhofstadt, a member of the European Parliament from Belgium and chair of the Alliance of Liberals and Democrats for Europe, thinks the UN can benefit from the evolution of the EU's decision-making process.

Writing in the Financial Times recently ("UN Should Tread Brussels' Path in Climate Talks," Dec. 23, 2009), Mr. Verhofstadt, offered the following observation:

If consensus among all parties is required to formally approve a declaration or commitment, then the UN process has severe limitations. Nothing meaningful will ever be achieved to tackle climate change if unanimity remains the rule.

Mr. Verhofstadt, went on to suggest that changes in the EU's decision-making process could help inform a change at UN level:

Perhaps the UN could take a leaf out of the European Union book and examine whether its consensus-based decision-making is sustainable for the sake of the planet and its own credibility. The EU has had to constantly adjust its procedures to make decision-making both possible and more efficient. The recently approved Lisbon Treaty was designed with this precise goal in mind as it had become clear that forging a consensus with 27 member states on highly complex and often technical matters was unmanageable if just one country could hold everyone else to ransom. Majority voting [in the EU] is now the norm.

Mr. Verhofstadt concludes that making decisions based on majority voting is perhaps "a path the UN may have to take in order to extract some concrete commitments to tackle climate change before it is too late."

While his ideas are worth considering, it may be worth bearing in mind that the EU and the UN are very different organizations with different objectives. Nevertheless, something like this should clearly be on the UN's agenda for consideration.

French Carbon Tax Rejected by Constitutional Court

A carbon tax that would have taken effect Jan. 1, 2010, in France has been struck down by the French Constitutional Court. Had it come into law, the tax would have made France the largest economy in the world subject to a carbon levy.

A multitude of exemptions that were written into the law created a "breach of the principle of tax equality," the court ruled.

Among the sectors that were exempted by the law were cement plants, power producers, and oil and gas refineries, The Wall Street Journal reported ("French Court Rejects Carbon-Emissions Tax, Dealing Blow to Sarkozy," Dec. 31, 2009). The law would have provided for a $25 per ton levy on carbon emissions. Interesting enough, the tax was challenged by the left of center Socialist Party. President Nicholas Sarkozy's right of center party proposed and passed the legislation.

Despite the decision, Mr. Sarkozy's party is expected to write a revised version of the legislation in January. Prime Minister Francois Fillon said a carbon tax continues to be a "priority for the president of the republic and the government," the Financial Times reported ("Sarkozy Fights to Save Flagship Carbon Tax," Dec. 31, 2009).

In fighting his election campaign in 2007, Mr. Sarkozy pledged that reducing carbon emissions would be a top priority of his government.

"Global Sustainability:" A Promising Job Path, The Wall Street Journal Reports

A recent article in The Wall Street Journal reports that green technology and global sustainability are two career paths that look particularly promising.

The story ("Landing a Job of the Future Takes a Two-Track Mind," Dec. 29, 2009) notes that, "Career experts say the key to securing jobs in growing fields will be coupling an in-demand degree with expertise in emerging trends."

The story goes on to say, "Not surprisingly, green technology, including solar and wind energy and green construction, are...booming areas." The wind and solar industries will require individuals involved in the design, auditing, and installation and maintenance of the systems, the story said.

The key aspect of global sustainability will be related to how costs can be reduced by firms that adopt sustainable business plans, Greg Netland of Sapphire Technologies told the Journal.

This brings to mind the major new "Sustainable Natural Resources Development Series" that the Sturm College of Law will launch next week. Click here for more information on the series, which is a first of its kind in the Western Hemisphere and reflects DU's commitment to being the leading natural resources law school in the U.S. and far beyond.

A Winter Afternoon Walk in Colorado

There is nothing quite like a winter afternoon hike in the mountains to remind oneself of the majesty and beauty of nature.

I love this type of solitude so much that I spent the last daylight hours of the year (at least in the U.S. Mountain Time Zone) at a place called Elk Meadow Park, which is about 25 miles (35 k) west of Denver.

I visit Elk Meadow (click here for a trail map) regularly throughout the year. It has its charms in every season, and particularly so in winter when the days are short and late afternoon walks can be cold and sometimes wet if it is snowing. The elevation at Elk Meadow is about 8,000 feet or 2,700 meters more or less and so a chilly day in Denver can be very cold at Elk Meadow

On my New Year's Eve walk, I was entirely by myself. I did not see another person on the trail, thus making the afternoon walk even more enjoyable.

However, when I say I was by myself I should correct this -- actually there was plenty of action in the park, but just not of the human kind! I saw deer, birds, one fox, and elk tracks. While it seems -- from the perspective of a human -- that the forest has gone to sleep for the winter, the reality is that the creatures that live in the forest are busy with their own daily routines.

As I walked along, snow crunching under my boots (and very good ones at that, recommended by my good friend Chris Lloyd, of Oxford, England, with whom I have walked in Elk Meadow many times), I thought about what a joy it is to live so close to such a wonderful setting. The walk in the woods quickly reminded me of the beauty of nature, as well as all that I was lucky enough to experience in 2009 in Europe and North and South America.

Denver and Colorado are very special places -- I think all who come here to study or live will agree. The vastness of the state and national parks, which are literally on our doorsteps, remind us of the wonders of the mountains and the opportunities to enjoy them.

As daylight changed to winter's darkness, I thought about my friends in other parts of the world who are enjoying the long days and warmth of summer. In particular, program alums in Buenos Aires, Lima, Santiago, Jakarta and elsewhere came to mind.

Our cold and short days will soon give way to more sunlight and warmth. But for now it's winter in Colorado, a beautiful and wonderful time in its own right.

Commercial Real Estate Owners Looking to Solar Panels to Boost Revenues

It is no surprise that the past year has been a challenging one for many sectors of the economy, not least the owners of commercial real estate. However, some times good results can come from bad situations and this may be the case with commercial real estate.

The Financial Times ("Solar Power Boost for US Rental Outfits," Dec. 23, 2009) has reported that, "Real estate trusts are showing an increasing interest in renting roof space to companies and utilities that can install and manage solar panels on top of their buildings."

A number of real estate owners including ProLogis and AMB Property consider rooftop solar projects as significant business opportunities, according to the FT piece.

Paul Adornat, a BMO Capital Markets investment analyst, told the FT, "An industrial building can completely satisfy all of its electricity needs plus put some additional power back into the grid."

Chinese Firms Finalize Investments in Ecuadorian and Kazakhstan Copper Interests

China's investment in the natural resources sector continues to boggle (at least non-Chinese) minds. This week two more deals of major importance have been announced.

In one deal, the China Railway Construction Corporation and Tongling Nonferrous Metals Group Holdings agreed to pay nearly $700 million Canadian in cash to purchase Vancouver-based Corriente Resources, which owns the mining rights to several copper deposits in Ecuador.

No sooner was that deal announced, than London-traded Kazakhyms, another copper producer, received a $3 billion loan from the Chinese Development Bank and a Kazakh sovereign wealth fund. According to the Financial Times, the loan will allow Kazakhyms to fully develop a copper project located in northern Kazakhstan ("Kazakhyms Gets Funding From China," Dec. 30, 2009). In 2009, the total Chinese investment in Kazakhstan reached $13 billion, the FT reported.

The enormous internal demand in China for infrastructure-related development is driving the country, and its state-related firms, to acquire the rights to more and more natural resources.

Stay tuned. It seems likely that the Chinese have only just started their purchasing spree. And for those more interested in China, the "Comparative Environmental Law" course I teach beginning in January 2010 will focus in part on environmental and natural resources developments in China.

Tort Actions a Path to Reducing Carbon Emissions? Bad Idea Says The Wall Street Journal Editorial Page

Despite the lack of real progress at the UN Climate Change Conference recently in Copenhagen and "with a failure in the U.S. Senate looming this coming year," trial lawyers and green pressure groups have joined forces to try to reduce carbon emissions by filing "nuisance" law suits against major carbon emitters, The Wall Street Journal editorial page has opined ("The New Climate Litigation," Dec. 28, 2009).

The editorial said in part:

What unites these cases is the creativity of their legal chain of causation and their naked attempts at political intimidation. "My hope is that the court case will provide a powerful incentive for polluters to be reasonable and come to the table and seek affordable and reasonable reductions," [Connecticut Attorney General Richard Blumenthal] told the trade publication Carbon Control News. "We're trying to compel measures that will stem global warming regardless of what happens in the legislature."

Mull over than one for a moment. Mr. Blumenthal isn't suing to right a wrong. He admits that he's suing to coerce a change in policy no matter what the public's elected representatives choose.

The editorial goes on to worry that:

The courts would become a venue for a carbon war against all. Not only might businesses sue to shackle their competitors...but judges would decide the remedies against specific defendants. In practice this would mean ad hoc command-and-control regulation against any industries that happen to catch the green lobby's eye.

Well that's certainly one side of the "climate litigation" argument. The trial bar (and some states' attorneys general for that matter) undoubtedly has another. This is an issue that is not going away anytime soon (in the absence of strong federal action on the matter), and will undoubtedly make for some interesting posturing by all sides of the carbon issue.