The Evolution of an "Energy Law" Practice: One Denver Practitioner's Story

The practice of energy law is evolving to be sure. Thus, while energy law may have been historically associated with a practitioner working only on gas, utilities, mining or some combination of these issues, the picture has begun to change significantly.

One attorney whose practice reflects the change is Jeffrey G. Pearson, a solo practitioner in Denver and an alum of the DU College of Law. Ann Vessels, the director of the law school internship program, and I met recently with Mr. Pearson to talk about what the evolving practice of energy law looks like.

In a word, Mr. Pearson's work is "varied." He represents some gas firms. And he does his share of regulatory work on behalf of clients. But he's also representing independent power generators as well as entrepreneurs who are trying to capitalize on the "new energy economy."

An example of one of his most interesting clients is a firm called Ice Energy. With its corporate headquarters about 40 miles north of Denver in Windsor, Ice Energy has pioneered the "Ice Bear energy storage module" that works with a standard commercial air conditioner. The Ice Bear "delivers the industry's first hybrid cooling solution specifically developed to reduce air conditioning energy demand for small to mid-sized commercial businesses," according to the company. To watch a video about this new technology, click here.

In effect, as Mr. Pearson points out, entirely new businesses are being formed based on technologies that take advantage of the new energy realities that we face. And lawyers will play major roles in helping these businesses form, develop, and take their products and services to market.

Practicing energy law means many things to many people. But how energy will be generated in the future -- bearing in mind that the U.S. is on the verge of putting a national price on carbon emissions and the European Union already has -- will include an array of current technologies as supplemented with many new technologies.

Clever firms and businesses will profit from what is being called "the new energy economy." Just ask Jeff Pearson. He is representing some of them.

Developing and Transferring New Technologies Key to Reducing GHG Emissions, Center for American Progress Says

The Center for American Progress (CAP), a left of center Washington, D.C. think-tank, has published a report asserting that, "The fight against climate change will not be won without a revolution in the use of existing low-carbon technology and a tidal wave of new innovations."

In "Breaking Through on Technology: Overcoming the Barriers to the Development and Wide Deployment of Low-Carbon Technology," the CAP and the Global Climate Network interviewed more than 100 experts from business, government, education, and NGOs in eight countries (Australia, Brazil, China, Germany, India, Nigeria, South Africa, and the U.S.).

A key conclusion, drawn by the CAP, is that "without a firm commitment to develop and transfer new technologies, with industrialized countries taking the lead on financing these endeavors, consensus will be difficult to reach and, in practical terms, emissions will be hard to reduce, at least without unacceptable penalties to human development, social cohesion, and economies well being."

Sheila Hollis, Leading Washington, D.C. Energy Attorney and DU Law Alum, Talks About U.S. Climate Legislation

Sheila Hollis, chair of the Washington, D.C. office of Duane Morris and graduate of the DU College of Law, was interviewed earlier this week about the status of climate legislation in the U.S. Congress.

The interview, "Duane Morris' Sheila Hollis Previews Difficult Climb to 60 in the Senate," was part of E&E TV's continuing coverage of major environmental and energy issues.  The program features experts, such as Ms. Hollis, talking about the most important issues before Congress.

Ms. Hollis has received multiple awards including recently being named as one of the 50 Key Women in Energy worldwide.   She was also a finalist for Lifetime Achievement in Energy in Platt's Global Energy Awards, an honor made even more noteworthy since she is the first attorney in private practice to be nominated for the award. In 2001-2002 Ms. Hollis chaired the Section of Environment, Energy and Resources of the American Bar Association.  In 2007 she was recognized by the college of law as an outstanding graduate.

Anyone -- lawyers, law students, graduate students, engineers, accountants, industry leaders, etc. -- interested in climate legislation should watch this video.  Ms. Hollis' observations about, among other things, the distribution of allowances made in the Waxman-Markey energy bill, which passed the House several weeks ago, as well as the "tariffs issue" that has arisen are extremely useful. 

As I have said before, there is no substitute for learning from the experts.  Sheila Hollis is definitely one of the best in the energy law field.

National Clean Energy Summit to be Held Aug. 10

Senator Harry Reid, Nevada Democrat and majority leader in the U.S. Senate, will co-host the National Clean Energy Summit 2.0: Jobs and the New Economy in Las Vegas Aug. 10.

Among the speakers will be former Vice President Al Gore and energy executive T. Boone Pickens.

Cost to attend is $150 per person or $25 for students.

Denver Attorney Scot Anderson to Assume Role as Vice Chair of "Lex Mundi" Energy and Natural Resources Practice Group

Denver attorney Scot Anderson, a partner at Davis Graham & Stubbs LLP, and I met yesterday. Over the course of the last year, Scot and I have met occasionally to discuss the major issues of the day involving natural resources development in the international arena.

Mr. Anderson, a long-time friend of the DU graduate program community, is one of the leading natural resources development attorneys in North America. Before joining DG&S in Denver he worked for Arco in London for four years. His work has frequently takes him to Latin America as well as Canada.

Talking to Scot is a great pleasure since he is extremely knowledgeable about many aspects of developing natural resources and is in touch with the issues that practitioners face today.

One of his upcoming projects is to take on the role as vice chair of the Lex Mundi Energy and Natural Resources Practice Group. Lex Mundi is a prestigious global association of law firms. In this role, Scot will be working with many of the world's great law firms and the attorneys in those firms who specialize in energy and natural resources.

Scot and his law firm handle many different types of energy law related issues, and it's worth noting that several DU students have interned at Davis Graham & Stubbs.

It is worth calling Scot Anderson to your attention since he is the type of individual who is making things happen in the natural resources development sector. And he's in Denver. And that's great for me and the program more broadly since he is exactly the type of person who I consult to stay in touch with what is going on in the mining and oil and gas sectors. (I blogged about Scot's role as chair of the Rocky Mountain Mineral Law Foundation International Institute in Buenos Aries in late April.)

There is no substitute in any profession for knowing who the leaders are. Scot Anderson is one of these leaders.

European Commission Slaps Two European Energy Giants With Huge Fines

The European Commission, the European Union body responsible for enforcing competition law, has imposed antitrust-related fines of nearly $800 billion on both Eon and GdF Suez.

The Commission said that the two energy giants -- Eon, a German firm, and GdF Suez, a French firm -- violated EU antitrust measures by agreeing not to sell natural gas in each other's home markets over a jointly built gas pipeline. The market-sharing agreement continued even after European gas markets were liberalized.

Why, you might ask, is this news item part of the blog? Simply because it indicates that in some markets -- the EU in this instance -- energy companies can find themselves being aggressively pursued by antitrust authorities. Put another way, finding, extracting, and transporting the energy are not the only issues that need to be considered in a business context. 

The combined $1.6 billion fine was the first of its kind levied by the Commission for an antitrust infringement in the EU energy sector.

Neelie Kroes, the EU Competition Commissioner, said:

"This decision sends a strong signal to energy incumbents that the Commission will not tolerate any form of anticompetitive behavior. Marketing sharing is one of the worst types of antitrust infringement. This agreement deprived customers of more price competition and more choice of supplier in two of the largest gas markets in the EU."

Both companies said they will appeal the Commission's decision.

Institute for the Advancement of the American Legal System: Improving the American Civil Justice System

One of the very tangible benefits of attending the University of Denver Sturm College of Law is the opportunity it provides to benefit and learn from the many varied centers of excellence on campus. One of these centers is The Institute for the Advancement of the American Legal System (IAALS).

A national, non-partisan organization dedicated to improving the process and culture of the civil justice system, the IAALS provides principled leadership, conducts comprehensive and objective research and develops innovative and practical solutions—all focused on serving the individuals and organizations who rely on the system to clarify rights and resolve disputes.

In the words of the IAALS, "The civil justice system in the United States often does not meet the legitimate needs of the American people. The system has become captive to expense, delay and gamesmanship, resulting in growing public dissatisfaction and distrust. Our system must refocus on the needs of those it serves."

The IAALS is directed by former Colorado Supreme Court Justice Rebecca Love Kourlis, who authored more than 200 opinions and dissents during her tenure. Justice Kourlis also spearheaded significant reforms in the court system relating to juries, family law and attorney regulation.

Several days ago I met with Justice Kourlis and asked her to address our incoming class of graduate students (as well as those who began their studies in January). She graciously agreed to meet with us and share her observations about the work of the IAALS as well as comment about her service on Colorado's highest court. The date for our meeting with Justice Kourlis has not been set, but it is likely to be sometime in the September-November timeframe.

Our meeting with Justice Kourlis will expand students' understanding of the American legal system, how it works, and the challenges and opportunities that confront it. The meeting will provide an excellent chance for students to learn from a former jurist who is at the forefront of considering what America's 21st century judicial system will look like.

Before we meet with Justice Kourlis later this year, however, here is a peak at the kinds of specific projects the institute undertakes:

IAALS is currently involved in its most ambitious project to date, the 21st Century Rules Initiative, which seeks to modernize the Federal Rules of Civil Procedure to meet the needs of today’s court users. As part of this initiative, IAALS partnered with the American College of Trial Lawyers (ACTL) Task Force on Discovery to quantify the issues of cost and delay that plague our civil justice system. The two groups conducted a survey of 3,800 members or “Fellows” of the College, which revealed significant cracks in the foundation of our system of justice.

Based on the survey findings, the ACTL Task Force on Discovery and IAALS released the Final Report, which includes a set of 29 proposed Principles focused on four cores areas: pleadings, discovery, experts and judicial management. The two organizations are now drafting a set of Model Rules that will implement the Principles outlined in the Report and that may one day underpin reform of civil rules in both state and federal systems. IAALS will then work with interested jurisdictions to pilot the Rules and measure their effects. Copies of the final report may be downloaded by clicking here.

The work that Justice Kourlis, assistant director Pamela A. Gagel, and their staff undertake is exceptional in tackling key issues related to enhancing the American legal system.  It will indeed be a pleasure to introduce Justice Kourlis to our students.

American Coalition for Clean Coal Technology: One of the Major Players as the Senate Considers an Energy Bill

One group to follow as the U.S. Senate debate about a cap-and-trade bill heats up this summer and fall is the American Coalition for Clean Coal Electricity, which sponsors the America'sPower.org website.

Members of the coalition include power companies and other coal-related interests. The coalition's goal is to "advance the development and deployment of advanced clean coal technologies that will produce electricity with near zero emissions."

Joe Lucas, the senior vice president for communications, recently provided an overview about the coalition's position vis-a-vis the carbon debate:

With the Senate poised to consider a climate change bill, the usual talking points from environmental public-interest groups have begun to rear their ugly heads.

As usual during these debates, there are those who predict that any movement to reduce carbon dioxide (CO2) emissions will mean the end of the use of coal to generate electricity.

Nothing could be further from the truth.

If anything, it means the need to increase investments in carbon capture and storage (CCS) technology is even stronger than ever.

Let’s be perfectly clear about the facts: coal currently provides about 50 percent of America’s electricity. And the United States has more coal than any other fuel. A quarter of all the known coal in the entire world is here in America. In fact, we’ve got more coal than the entire Middle East has oil.

Moreover, key groups – like the International Panel on Climate Change (IPCC), the International Energy Agency (IEA), Massachusetts Institute of Technology (MIT), and others – have said that you CANNOT achieve a reduction of greenhouse gas emissions on a global scale WITHOUT successful deployment of carbon capture and storage. In fact, authors of the House bill (Chairman Waxman and Chairman Markey) clearly noted that coal use will continue to grow both here in the U.S. (on a regional basis) and around the world.

So those who predict that reducing CO2 will drive coal out of the market (much like they said reducing SO2 would do the same thing 30 years ago, although coal use has since tripled even as emissions have been dramatically reduced) are once again … whistling past the graveyard.

In fact, that is where I think they are missing the boat (and why some of these groups were critical of the House bill). Their goal is to remove low-cost energy options like coal from the fuel mix … and they can’t see that such a policy would not only increase energy costs and leave America more dependent on imported energy, it would also deter meeting the key goal of reducing greenhouse gas emissions on a global scale. That is just misguided and bad policy.

For those of you who question if carbon capture and storage is a viable option – consider this, North America has enough storage capacity at our current rate of production for more than 900 years worth of carbon dioxide. This storage capacity is located deep underground across the continent in varying types of geological formations – including unmineable coal seams and oil and gas reservoirs.

To break it down, the U.S. and Canada are the source of 3.8 billion tons of CO2 each year, but we have storage space for 3.5 trillion tons. Divide that out and we have, in effect, a 921-year reservoir of carbon dioxide storage.

That data comes straight from the U.S. Department of Energy. Take a look for yourself.

It’s time to work together on a solution — one that is right below our feet.

You can beat that the coalition's members and leadership will be working overtime to press their views with senators and their staffs.

Denver "Occupies the High Ground When it Comes to Clean Energy:" Newsweek Magazine

Denver's central role in the new energy economy -- renewables, energy efficiency, biofuels -- is being formally recognized in the U.S. and beyond.

For instance, the July 13 issue of Newsweek includes a piece, "More Than Just Hot Air; Green Jobs Are Sprouting in Denver," that explains the convergence of issues and interests that have established the Denver area as the heart of "green America." Daniel Gross, Newsweek's business columnist, writes, "The Mile High City occupies the high ground when it comes to clean energy -- and clean living."

For what it's worth, the phrase the "new energy economy" was supposedly first uttered by Colorado Gov. Bill Ritter. I have not the foggiest idea whether this is true or not, but nevertheless I am quite happy to use the phrase myself!

Leading U.S. Environmental Groups Endorse Sotomayor for U.S. Supreme Court Position

A group of major U.S. environmental groups has endorsed the nomination of Judge Sonia Sotomayor to be a member of the U.S. Supreme Court.

The endorsement comes as the U.S. Senate Judiciary Committee begins hearings tomorrow on the nomination of Judge Sotomayor. The organizations, which include such marque names as Friends of the Earth, Greenpeace USA, the Legal of Conservation Voters, the National Audubon Society, the Sierra Club, the Wilderness Society, said:

"Despite her long tenure on the federal bench, Judge Sotomayor has sat on relatively few environmental cases. She wrote a notable Clean Water Act decision, methodically analyzing and resolving various conservation, state, and industry challenges to a regulation designed to protect fish from being killed in the cooling water intake structures at large power plants. While a divided Supreme Court reversed one of the more than a dozen rulings in the case, her decision reflects well-researched, thorough, and thoughtful legal analysis that probes the statute, its context, legislative history, and judicial precedent to discern and remain true to Congressional intent. The Second Circuit [of which Judge Sotomayor is a member] has yet to issue a decision in a public nuisance case brought against utilities for harm caused by power plant greenhouse gas emissions, but observers praised Judge Sotoymayor's preparation and deep engagement in the complex issues at oral argument. Beyond the decisions she has written, Judge Sotomayor joined a decision upholding a Vermont law requiring that labels inform consumers that certain products contain mercury and must be disposed of as hazardous waste, although she also joined a Clean Air Act decision that went against environmental litigants..."

"Judge Sotomayor's record evinces no clear bias in favor of or against environmental claims. Instead, it reflects intellectual rigor, meticulous preparation, and fairness."

It seems extremely unlikely -- in essence there is zero chance -- that Judge Sotomayor's confirmation hearings will be determined by an environmental issue.  And assuming her nomination is approved by the committee, then a Senate floor vote will not involve environmental issues.  

That's one worry that she and the Obama Administration can set aside.  Whether her nomination is successful will be based on other, non-environmental issues.

Brazil: A Future Energy Superpower?

An interactive map published in the Financial Times ("Brazil: A Model for Modern Energy," July 6, 2009) clearly illustrates why Brazil may soon be among the world's energy superpowers.

As the FT states:

"The discovery of potentially massive reserves of oil and gas off its coast in 2007 seems set to transform the country’s position as an energy superpower and the government says it plans to join Opec in the near future. However, Brazil already sources most of its electricity from hydroelectric dams and most cars in the country have the option to use ethanol as fuel, which can be sourced from sugar cane. As a result, the Latin American giant appears to be perfectly set up to deal with the energy challenges of the next century."

The map can be switched between fossil fuel resources and power and energy use.

We are all aware that the European Union and (belatedly) the U.S. like to bang on about what they are doing to address energy issues, but frankly they are poor distant cousins to Brazil when it comes to energy resources on their home soil. (That's not to suggest that they never had any natural resources, but rather that today they have a relatively limited amount.)  

Have a look yourself and draw your own conclusions.