Professor K.K. DuVivier Supports Colorado HB 1105, Which Establishes a Nonseverable Wind Energy Right in Real Property

Colorado House Bill 1105 recently cleared the House Agriculture Committee. It would establish "a nonseverable wind energy right in real property."

Creating nonseverable rights wouldn’t stop wind development. It would only require a separate “wind energy agreement,” that would have to be recorded with the county clerk.

Professor K.K. DuVivier, testified on behalf of the bill. She is knowledgeable about the topic and has written several articles concerning the matter such as, “Animal, Vegetable, Mineral - Wind? The Severed Wind Power Rights Conundrum.” Click here to access some of her articles.

An article published by the "Colorado News Agency" recalls that she said that only six states have passed laws that prohibit the splitting of wind and surface rights. Texas, a state that has not, produces far more wind energy than any other state and the severed rights have caused many problems for those owning the land, she said.

Professor K.K. DuVivier urged lawmakers to keep the wind rights in the surface estate. She noted that wind farms require long-term and extensive use not only of the surface land but of the area immediately above and below it for transmission, distribution, and collection lines. “Without legislative guidance, courts logically turn to precedents defining the status of other resources, such as oil or water,” she wrote in an article for the Washburn Law Journal. “Yet, defaulting to traditional models is unlikely to encourage the best development of our country's wind resources.”

Professor K.K. DuVivier was interviewed on Colorado Public Radio about the topic.

Robin L. Newmark, Strategic Energy Analysis Center Director at the National Renewable Energy Laboratory, Speaks at DU Law about Water-Electricty Nexus

There are major water-related implications involved with making energy generation choices Robin L. Newmark, Director of the Strategic Energy Analysis Center at the National Renewable Energy Laboratory (NREL) recently told Denver Law students.

She also noted that producing clean water and handling discharged water also takes electricity, thus making the link between water and electricity even more profound.

"Many new electricity technologies are water intensive, meaning that demands on water are increased even more," Dr. Newmark said. Among the new types of technologies she referred to are carbon capture and sequestration, which when combined with a coal or gas fired power plant may mean up to a 100 percent increase in the use of water over the status quo. She also noted that to reuse brackish water or desalinize sea water takes a considerable amount of energy.

Water is also used in large quantities in the extraction of shale gas, she noted, which is a technology that is only now being developed in the oil and gas sector. Moreover, nuclear power generation is very water intensive. The process of developing ethanol also involves very high amounts of water. As a result, "life cycle assessments" that consider the water and electricity impacts of various forms of energy will become more widespread, she said.

Also joining the Denver Law students were members of the University of Denver Renewable Energy Science Community and Enterprise (RESCUE), which is chaired by DU Law Professor K.K. DuVivier.

Don C. Smith, Director of the Environmental and Natural Resources Law and Policy Program, said that Dr. Newmark's remarks were timely and important. "As Dr. Newmark so clearly pointed out, water and electricity issues are intertwined and will be considered together as we move forward. Having a leader of the caliber of Dr. Newmark speak to us was a great experience, and indicates again the caliber of leaders who come to Denver Law and share their observations and experiences."

To see Dr. Newmark's Powerpoint presentation, please click here.

Adam Massaro, Sturm College of Law 2010 JD Graduate, Wins "Excellence in Writing Award" From ABA Probate & Property Magazine for Solar Energy Article

Adam Massaro, University of Denver Sturm College of Law 2010 JD graduate, won an Excellence in Writing Award from the editors of ABA Probate & Property for his article, “Solar Power for Commercial Buildings,” that appeared in the January/February 2010 issue.

Adam walks a lawyer through issues he or she must understand when advising a client, building owner or tenant, who wishes to participate in a distributed solar energy opportunity by installing a solar generation system.

The article discusses Renewable Energy Credits (RECs); three methods for obtaining commercial solar (solar power purchase agreement with a third party developer, purchase and installation of a system, and a solar lease); and net metering (where the utility gives credits for surplus solar energy generated).

Adam writes that, “Commercial Solar presents an opportunity for building owners and tenants to achieve both sustainability and business goals.” He counsels that federal and state incentives determine the economics of commercial solar. In this growing market, Adam predicts, “more and more building owners and tenants will seek the advice of lawyers before obtaining Commercial Solar.”

Adam wrote this piece with faculty supervision in the summer of 2009. “The law school’s directed research program provided me the opportunity to work directly with a highly skilled advisor in Professor K.K. DuVivier,” he says. “She was a tremendous resource for a young law student who was seeking his first publication.”

Directed research at the Sturm College of Law is an opportunity for students to research and write on any area of law approved by a full-time faculty member who agrees to direct the project. It is one way to fulfill the law school’s upper level writing requirement.

Professor DuVivier, who is currently writing her own book on renewable energy law, reports that, “Adam took the initiative on this cutting-edge issue of renewable energy practice, and he well deserves this national recognition. I was delighted to supervise his work on this article as part of a directed research project. His accomplishment shows that an enterprising second-year law student can make a valuable contribution to the practice at the same time he is earning law school credit.”

Currently Adam Massaro is a judicial law clerk at the Colorado Court of Appeals for Judge Nancy Lichtenstein. He plans to practice law in Denver after his clerkship ends in August 2011.

Congratulations to Adam Massaro for winning the Excellence Award for “Best Technology/Law Practice Management Article,” bestowed by the editors of ABA Probate & Property.

To see the full text of the article, please click here.

Alan J. Gilbert, Senior Advisor to Interior Department Secretary Ken Salazar, Speaks about the Department and Explains "Honors Attorney Program"

Alan J. Gilbert, Senior Advisor to U.S. Department of Interior Secretary Ken Salazar, spoke yesterday at the University of Denver Sturm College of Law.

Mr. Gilbert, who spoke about the work of the Department of Interior, was the March speaker in the Environmental and Natural Resources Law Program's Speaker Series.

In particular, Mr. Gilbert noted several key initiatives that have been undertaken by the Department under the direction of Secretary Salazar, who formerly served as a U.S. Senator from Colorado as well as Colorado Attorney General.

One top initiative involves energy development on public lands. "This is very, very important," Mr. Gilbert noted. "President Obama and Secretary Salazar want to promote energy development on public lands," he said. The Obama Administration is particularly keen to encourage the development of utility-size renewable energy generation on public lands.

As part of this effort, Secretary Salazar has instituted a "fast track" program that encourages utility-size renewables projects on public lands. Moreover, the Department is working to make sure that the way the Bureau of Land Management reviews applications for these projects is more effectively integrated into the way the government looks at renewables.

A second top initiative is called the Water SMART Program, which is aimed at "finding more water in the west by managing public water resources better and more efficiently," Mr. Gilbert said.

The matter of improving consultation between the Department and Native American tribes is another key initiative. The Department's goal is to develop new processes that will facilitate and improve the consultations now and into the future, he said.

America's Great Outdoors: A Promise to Future Americans is also among Secretary Salazar's prioritities. This is an effort to protect special lands and waters managed by the Department across the country in consensus with the states, local authorities, and other interested parties as well as to reconnect Americans with the outdoors. An executive summary of this program can be accessed by clicking here.

Finally the Youth in the Great Outdoors, which emphasizes employing, educating, and engaging young people in the preservation of America's natural and cultural heritage, is another key priority for Secretary Salazar.

Before closing, Mr. Gilbert called special attention to the Honors Attorney Program, which is part of the Department's Office of the Solicitor. Current solicitor Hilary Tompkins reinstated the program last year, and he encouraged students to consider applying for it if they were interested in natural resources law work. The program, which is designed to recruit highly qualified junior attorneys, is 14 months in length during which Honors Attorneys work on the full range of environmental laws relating to management of the nation's public lands, national parks and wildlife refuges, general administrative and government business law, and law related to the U.S.' relationship with Indian Tribes.

Don Smith, Director of the Environmental and Natural Resources Law Program, said, "It was a pleasure for the College of Law to host Alan Gilbert, a key long-time advisor to Secretary Salazar. Students benefit enormously by learning from individuals such as Mr. Gilbert, whose life experience is rich and expansive when it comes to understanding the country's resource policies. We at DU hope that Mr. Gilbert returns soon and often to the College of Law."

Mr. Gilbert has taught at the College of Law on several occasions, including serving as the prestigious Practitioner in Residence.

Editor's note: From left to right, Alan J. Gilbert, Law Professor K.K. DuVivier, Don Smith, Professor Emeritus and former U.S. Undersecretary for the U.S. Department of Interior John A. Carver Jr.

DU to Host 2011 Rocky Mountain Sustainability Summit: Law Professor K.K. DuVivier Forms Panel of Experts to Consider "Urban Eating"

The University of Denver will host the 2011 Rocky Mountain Sustainability Summit at the DU campus on February 17 and 18, 2011.

Sturm College of Law Professor K.K. DuVivier coordinated a panel of DU experts who will discuss “Urban Eating,” improving communities through more sustainable ways of obtaining food. The Urban Eating session will be in Driscoll 1880 from 2:35 to 3:45 p.m. on Friday. Summaries of each session can be accessed by clicking here.

Professor DuVivier, who teaches Energy Law, will provide a framework describing the role of energy in the production and consumption of food. DU Professor David Ciepley will discuss his experiences establishing a student garden on the DU campus. Erin Hough, a 4th year DU undergraduate student will discuss her efforts to bring more sustainable food to the DU campus. Law student Jeffrey John enlisted JD Sawyer, an expert in aquaponics, to talk to those attending the session. Mr. John will discuss the new College of Law student group FARM’s efforts to promote urban gleaning, edible urban landscapes, and other urban agricultural issues.

Sturm College of Law Professor and Associate Dean of Academic Affairs Federico Cheever, was one of the founders of the university-wide Sustainability Council at DU, and he served as its first chair.

Don C. Smith, Director of the Environmental and Natural Resources Law Program said, "Studying and researching the law and policy implications of sustainability is a growing field. We are fortunate at the College of Law to having two of the leading voices in this field -- Professors Cheever and DuVivier -- who have contributed a great deal to our understanding of the issues, both at a local level and in a wider perspective."

In Denver Post Letter to the Editor, Professor K.K. DuVivier Urges Planting "The Right Trees in the Right Place" to Help Combat Climate Change

The Denver Post recently published a letter to the editor by Professor K.K. DuVivier. Professor DuVivier teaches Energy Law at the University of Denver Sturm College of Law, and is author of the Renewable Energy Reader, a sourcebook about renewable energy law, due out from Carolina Academic Press in late 2011.

Professor DuVivier wrote in response to "Deciduous trees have decidedly beneficial impact on air pollution" (Oct. 22, 2010). The deciduous trees story noted that a study conducted by the National Center for Atmospheric Research reported that "deciduous vegetation absorbs one-third more air pollution that previously believed -- tens of millions of metric tons worldwide."

However, the article also noted that not all trees are the same with respect to reducing the levels of air toxics. "The right trees include ash, apple, birch, hawthorn, hackberry, maple, pear, and peach. Wrong: poplar, eucalyptus and oak [because]...[t]hese species, NCAR scientists say, emit more volatile organize compounds [VOCs] than they absorb."

Professor DuVivier expanded on the deciduous trees article by identifying which trees that are "right" for absorbing VOCs are also "right" because they do not grow to heights that interfere with neighbors' use of the sun for passive solar heating or electricity generation through photovoltaic panels. Like the "wrong" trees with respect to the emission of VOCs, taller trees whose shading results in the need for more coal-fired power generation, contribute to the climate problem instead of helping it, she has noted.

In her letter, Professor DuVivier urged that planting the right types of trees in the right places is the best way to enlist trees in the climate change battle. Specifically, Professor DuVivier wrote:

"[The] article lauded trees for absorbing smog. Trees also mitigate O2 emissions. But not all trees are equally beneficial: some species emit more volatile organic compounds than they absorb.

"In urban environments, we need more restrictions to avoid negative impacts on those around us: e.g., wood burning or watering restrictions. Sunlight plays an increasing role in energy solutions — for solar energy and urban gardens. Trees that mature at over 70 feet can create shade pollution for neighbors up to three lots away. Several of the 'right trees' for smog absorption are also those that mature at lower heights: apple, hawthorn, pear and peach.

"Where we plant new trees in the city is also important. Branches of deciduous trees still block critical southern exposures catching the low winter sun. So, we should plant more trees, as long as they are the right trees in the right place."

Environmental and Natural Resources Law Graduate Program Alums Danny Splettstosser and Leslie Weise Speak About Careers in Renewables and Clean Tech

Two recent graduates, Danny Splettstosser (Masters in Resources Law Studies, 2008) and Leslie Weise (LLM, 2005), spoke last week about careers in the renewable energy and clean technology sectors to a large group of students at the University of Denver Sturm College of Law. The event was the second in the on-going Speakers Series, sponsored by the Environmental and Natural Resources Law program.

Mr. Splettstosser is a renewable energy project developer for enXco, the American subsidiary of French electricity giant EDF. Ms. Weise is vice president for business development for Boulder-based clean tech firm CoolEnergy.

There are three career tracks available to individuals looking to work in the renewables industry, Mr. Splettstosser said: (1) inside or outside legal counsel; (2) legislative or regulatory specialist; or (3) project development, which is the track he is in. The project development role requires someone who can "see the big picture, is detail oriented, and is willing to work long hours," he said. One of the most satisfying aspects of his job is knowing that "At the end of the day there is something standing [a wind turbine or a solar array] that reflects your social and work ethic," he said.

He identified four key steps that students who are interested in this sector should be thinking about:

• Take the College of Law courses that address subjects such as renewables [DU now has three exceptionally good renewable energy-related courses], as well as Land Use and Environmental Law.
• Understand the sector you are considering; read the publications that deal with the sector and be knowledgeable about the business issues companies and developers are facing.
• Take advantage of the numerous externship opportunities offered by the College of Law (he had an externship at the U.S. Department of Energy (DOE) Golden field office, which works with the National Renewable Energy Laboratory that is also in Golden).
• Be passionate about working in the field and express that passion to those you interview with.

Ms. Weise, who works on legal matters and business development including seeking grant funds, noted some additional ideas regarding how to pursue work in the clean tech sector:

• Networking is extremely important; get involved in the many diverse industry and social groups (for example the local branch of the Sierra Club) that meet regularly in the Denver-Boulder area; get to know the key players in these groups.
• Be prepared at the interview; spend time at the company's website and know who the competitors are as well as what is going on in the market.
• When interviewing with a start up company, be prepared to emphasize your cross functional skills (which you should work on during your education); be prepared to talk about your marketing, writing, research and grant-writing skills, as well as your legal skills.

Ms. Weise also emphasized the importance of pursuing externships during a student's studies. As it turns out, she also was an extern at the U.S. DOE Golden field office.

The event was rounded out by a series of questions and answers, as students sought more detailed information from the guest speakers. Introductions were also made to two professors who attended, Energy Law Professor K.K. DuVivier and Adjunct Professor Anita Halvorssen who teaches courses about Climate Change and Sustainable Development.

Don C. Smith, director of the ENRL program observed afterwards that the College of Law is fortunate to have graduates such as Mr. Splettstosser and Ms. Weise, and many others, who are so willing to help current students understand the key aspects of looking for jobs and pursuing them. "Danny and Leslie have been particularly supportive of our program. The time and energy they invest in helping our students reflects their own passion to the sectors they work in and their own personal commitments to building a better world for future generations."

The Speakers Series continues on November 9 when Kate Iverson, assistant general counsel for RTD Fastracks, which is building out Denver's light rail system, speaks.

Three DU Law Professors Attend the Rocky Mountain Mineral Law Foundation Meeting in Canada

The Sturm College of Law will be well represented at this week's 56th annual meeting of the Rocky Mountain Mineral Law Institute, organized by the Rocky Mountain Mineral Law Foundation, meeting in Banff, Alberta, Canada, beginning tomorrow. Attending from the law school will be Fred Cheever, Associate Dean for Academic Affairs and Professor of Environmental Law, K.K. DuVivier, Energy and Mining Law Professor, and Jan Laitos, Natural Resources Law Professor.

The Sturm College of Law has a long and storied relationship with the Foundation, which is one of the world's preeminent organizations for considering issues related to minerals extraction, development, and management. In the late 1950s the law school was a founding member of the Foundation. Since then the law school has played a significant role in the Foundation including in recent years when Professors Cheever and Laitos have served as Trustees of the Foundation. Moreover, Professor Cheever currently chairs the Natural Resources Law Teachers Committee.

DU's strong relationship with the Foundation has been a key to the rich selection of courses and professors that students find at DU. For example, four speakers at this year's meeting in Banff have taught at the College of Law: Bob Bassett of Holland & Hart in Denver; James Cress of Holme Roberts & Owen in Denver; Florencia Heredia of HOLT Abogados in Buenos Aires, Argentina; and James Otto, an independent natural resources consultant in Boulder.

These relationships provide DU students a unique level of expertise and experience second to none among U.S. law schools. And to be sure, understanding and appreciating the complex relationships between environmental protection, on the one hand, and natural resources development, on the other hand, are more important today than ever before. A well-rounded environmental or natural resources professional must understand and take account of all of the key issues, and that is exactly what students find each and every day at DU.

To see a program summary for the 56th annual institute, please click here

Energy and Mining Prof. K.K. DuVivier's Carbon-Neutral House Featured in Sunday Denver Post Business Section

Law Professor K.K. DuVivier and her husband Lance Wright's carbon-neutral house was featured in a story in yesterday's Denver Post, proving once again that students who are part of the Environmental and Natural Resources Law & Policy program at the Sturm College of Law will learn from professors who "practice what they teach."

In Professor DuVivier's situation, this is particularly the case since she teaches Energy Law and is currently working on The Renewable Energy Reader, a book that will address legal issues related to renewable energy (the Reader is expected to be published by Carolina Academic Press in late 2011).

In "Couple Keeps Cool With Simple Steps" Professor DuVivier said that energy conservation is "almost a moral imperative."

Mr. Wright, who runs Green Energy Man Inc., specializes in energy efficiency and is one of only three certified Passive House consultants in the state of Colorado. Mr. Wright designed the home and served as general contractor taking into consideration all types of energy efficiency measures in both the planning and building phases so that the house requires neither an air conditioner in the summer nor a furnace in the winter.

Yesterday's story was not the first time the couple's house has drawn wider attention. The innovative house was featured as part of the Colorado Renewable Energy Society Solar Home Tour last fall. Click here to see a posting on that event.

"Animal, Vegetable, Mineral -- Wind? The Severed Wind Power Rights Conundrum:" New Law Journal Article by Prof. K.K. DuVivier

K.K. DuVivier, professor of energy and environmental law at the University of Denver Sturm College of Law, has written a ground-breaking article about wind power and how wind rights are categorized. An abstract of the article, "Animal, Vegetable Mineral -- Wind? The Severed Wind Power Rights Conundrum" that appears in Volume 49, Number 1 of the Washburn Law Journal (fall 2009), follows:

U.S. wind power capacity increased 50 percent in 2008, making wind one of the fastest growing energy sources. Wind has several advantages over conventional energy fuels: it is renewable, does not emit pollutants, and does not require scarce water resources to process the raw product or to generate electricity.

Yet wind power’s rapid growth is creating its own crisis. Thousands of landowners across the country have severed their “wind rights,” splitting wind ownership apart from surface ownership. However, wind power development requires extensive, and perpetual, surface disturbance. As surface owners are the parties most impacted, taking them out of the equation seriously complicates surface access and damage negotiations.

Furthermore, when landowners retain control over both the mineral and wind rights, those landowners can serve important roles as mediators in disputes between competing developer interests. Landowners who receive royalties from both mineral and wind development have an incentive to see both enterprises coexist. This incentive is eliminated when mineral and wind rights are severed and the owners of these separate estates seek only to maximize their own distinct interests.

Commentators have applied the mineral severance concept to the wind context to recognize the practice severing wind. But are these commentators asking the right question? Yes, wind probably can be severed. The more important issue is whether policy makers seeking to promote mineral development and to protect farmers and ranchers should allow it to be severed.

Only a handful of states have examined wind ownership issues, and few have chosen to prohibit wind severance completely. The only two courts that have yet addressed the issue of wind severance have done so obliquely. A 1997 California court allowed wind severance in a condemnation context by likening wind to oil; in a 2009 partition case, the federal district court in New Mexico likened wind to a different mineral— water.

How a wind right is categorized will have significant impacts on relationships between wind-rights owners and surface owners for centuries to come.

Prof. DuVivier’s article, the full text of which can be accessed by clicking here, explores the two cases on record relating to wind severance and the evolution of severed mineral rights. Her analysis illustrates that we should be exploring alternative models because the historical and policy rationales concomitant for mineral severance do not apply in the wind context. All those interested in the state of the art when it comes to wind power issues should carefully read Prof. DuVivier's piece.

In addition, those who attend the graduate program will have the opportunity to learn firsthand from Prof. DuVivier, one of the foremost experts on U.S. wind power issues.