December 2023
Natural Resources Law Insights
U.S. Supreme Court to Reconsider Chevron Deference
Vanessa A. Silke, Hannes D. Zetzsche, and Spencer A. Hosch | Baird Holm LLP
This article discusses the potential reconsideration of the Chevron doctrine by the U.S. Supreme Court in 2024, centered on two cases: Loper Bright Enterprises, Inc. v. Raimondo and Relentless, Inc. v. U.S. Department of Commerce. The Chevron doctrine, established in 1984, mandates courts to defer to agency interpretations of statutes if the law is ambiguous and the agency’s interpretation is reasonable. The Court’s decision could significantly impact administrative law, questioning whether Chevron deference grants excessive power to administrative agencies.
Read more here.
Treasury Releases a Swath of Guidance on the Investment Tax Credit
Sean Moran, Lauren Collins, Heather Behrend, Mary Alexander, Ben Livni, and Sarah McIntosh | Vinson & Elkins LLP
On November 17, 2023, the U.S. Treasury and IRS issued proposed regulations on the energy credit under section 48 of the Internal Revenue Code, including the definition of “energy property” and related rules. These comprehensive regulations cover various energy properties like solar, wind, and energy storage technologies, and address aspects like labor requirements and tax credits. The regulations also define what constitutes energy property, eligible costs under the ITC, and the application of the “80/20 Rule”, and clarify the rules for co-located ITC and production tax credit (PTC) facilities.
Read more here.
Canada’s Supreme Court Finds Impact Assessment Act Unconstitutional
Zachary Silver and Alexandria Pike | Davies Ward Phillips & Vineberg LLP
In a 5–2 decision on October 13, 2023, the Supreme Court of Canada found parts of Canada’s federal Impact Assessment Act (IAA) unconstitutional. The IAA, effective since August 2019, was challenged by Alberta for overreaching into provincial jurisdiction, especially in resource-rich areas. The IAA’s process for assessing projects, particularly oil and gas, was deemed too broad and intrusive into provincial affairs. The ruling has significant implications for project approvals and the federal role in environmental assessments, potentially affecting Canada’s transition to a net-zero economy and creating legislative uncertainty. The federal government plans to make “surgical” legislative amendments in response.
Read more here.
Will Colorado Fill the Gaps in the Post-Sackett World?
Andrew Teegarden | Getches-Wilkinson Center for Natural Resources, Energy, and the Environment
Colorado School of Law
Following the U.S. Supreme Court’s Sackett decision, which changed the regulatory framework for wetlands and waters in the United States, Colorado faces challenges in protecting its watersheds. The decision necessitates a two-step process to determine the jurisdiction of the U.S. Army Corps of Engineers over waters, potentially leaving many unprotected. The state’s current laws are inadequate for this task, lacking a permitting program for dredge and fill activities. Efforts are underway to develop a state-run regulatory program, but challenges include uncertainty for the regulated community, lack of public participation, insufficient funding, and lack of substantive standards.
Read more here.
Background – The Strategic Plan
The Foundation’s focus on diversity, equity, and inclusion (“DEI”) began in earnest when it completed its first strategic plan in 2018. The plan defined our value proposition based on three core principles: scholarship, collegiality, and diversity. The plan also contained specific action items around increasing the diversity of our speakers. Also in 2018, with the help of former Board member Rob Risley, the Foundation created a scholarship program to fund living expenses for certain minority law students.
Programs Launched in 2020
After the events in 2020 leading to the deaths of George Floyd, Breonna Taylor, and Ahmaud Arbery, the Foundation’s Board of Directors was intent on increasing efforts and devoting more significant resources to advance opportunities for persons of color, who are underrepresented in both the legal profession and the natural resources and energy industries. After polling all our members for their suggestions, the Board launched a DEI scholarship program and a new program to provide travel reimbursements for students of color from any accredited law school to attend the Foundation’s institutes. The Board also created a new DEI Task Force to oversee these programs and develop new programs. In 2022, then-President Rachael Salcido converted the task force to a standing committee.
Current Diversity, Equity, and Inclusion Programs
Since 2020, the Foundation has continued to advance and grow its DEI programs for both students interested in natural resources and energy law and the practicing bar. In just the last few years, the Foundation has implemented the following programs and initiatives:
- Frances Hartogh Diversity Outreach Scholarship Program. This program provides scholarships to fund living expenses for law students interested in natural resources and energy law who are part of a group that historically has been denied access to land-based resources. $70,000 has been awarded to date under this program.
- Diversity and Inclusion Scholarship Program. This program provides tuition scholarships for law students of color interested in natural resources and energy law at any accredited law school. $42,000 has been awarded to date under this program.
- Mary Viviano and Cassie Boggs Scholarships. These programs provide tuition scholarships for women interested in certain specified fields of natural resources and energy law. $35,650 has been awarded to date under these scholarship programs.
- Equity and Inclusion Travel Reimbursement Program. As part of our other travel reimbursement programs, this program includes efforts to outreach to law students of color who are interested in natural resources and energy law to reimburse their travel expenses to attend Foundation institutes. In 2022, 32% of students, and in 2023, 34% of students, receiving reimbursement to attend the Annual Institute were students of color.
- Speaker and Program Committee Diversity Policy. This policy, which was updated and significantly revised by the DEI Committee, requires considerations of DEI when selecting speakers and program committee members, including gender, race and ethnicity, geography, and perspectives.
- Diversity Leadership Program. Launched this year, this program provided free registration and a travel stipend to seven practicing attorneys who are persons of color to attend the 2023 Annual Institute. Participants also received an orientation to the Foundation and were invited to attend a dinner with Foundation leaders at the Annual Institute.
- Change in Composition of the Nominating Committee. By vote of the Trustees at the 2022 Annual Institute, the Foundation’s Bylaws were amended to change the composition of the Nominating Committee, which nominates the slate of Officers, Directors, and Trustees-at-Large, to include as a non-voting member the Chair of the DEI Committee. In 2023, the DEI Committee provided recommendations to the Chair for diverse candidates during the nominations process.
What You Can Do to Help Foster Diversity, Equity, and Inclusion
The DEI Committee encourages all our members to be involved in these efforts. Here are some ways you can help, although please reach out to the Foundation staff if you have other ideas.
- Complete Your Online Profile. All Foundation members have an online account. If you have not already done so, complete your online profile indicating your demographic information. This will help the Foundation better understand and track the diversity of its speakers, conference attendees, and members.
- Identify and Encourage Diverse Colleagues. If you have diverse colleagues who would like to become more involved in the Foundation as a speaker, committee member, author, or leader, please let us know or encourage them to contact us.
- Donate to Support Our DEI Programs. Our operating income from memberships, institutes, and publications does not cover any of the costs of our DEI initiatives or other Scholar Development programs. Contributions from generous constituents reduce the extent to which we have to rely on our reserves to cover these programs. Consider making a contribution to support our DEI programs! To donate to support these programs, click here.
If you have any questions or comments about our DEI initiatives or about making a donation, please reach out to us at [email protected].
Rachael Salcido
In the world of environmental law, Professor Rachael Salcido stands out for her insight and leadership. We recently interviewed Rachael about her experience with the Foundation and her thoughts on the Foundation’s diversity, equity, and inclusion initiatives. A recognized teacher and scholar at the McGeorge School of Law, University of the Pacific, Rachael has a wealth of expertise in domestic, comparative, and international environmental and natural resources law. Her specializations include ocean and coastal law, and ecosystem restoration. As the former Associate Dean for Diversity Initiatives at McGeorge, she also has considerable insight into challenges and opportunities related to diversity, equity, and inclusion for lawyers practicing in the areas of natural resources, energy, and environmental law and for the broader legal profession. Rachael is the immediate Past President and a current Foundation Board member. In July she completed her term as President and was the first Foundation President who is a woman of color.
Commitment to Education and Mentorship
Not content with merely excelling in academia, Rachael is the founder and director of the law school's Water and Environmental Law Concentration. In this role, she imparts her knowledge to students and fosters their interest in environmental law. She also connects students with meaningful career opportunities in the field. Her belief in the myriad opportunities available in environmental law, spanning climate change, water, and environmental justice, reflects her commitment to shaping the next generation of legal professionals. She became involved in the Foundation in part because it offered a unique space for mentorship and growth, providing not just guidance but a community invested in individual success. Rachael said, “I feel like I grew so much learning from other people at the Foundation – it wasn’t just advice; it was really good advice."
A Journey with the Foundation
Rachael’s journey with the Foundation began in 2003 when she first became a Trustee. Encouraged by her mentor, Professor George Gould, a water law scholar and also a Past President of the Foundation, she embraced the opportunity to contribute. Over the years, her involvement deepened as she served on various committees, including the Financial Advisory Committee, the Budget Committee, the Scholarships Committee, the Executive Search Committee, and our first Strategic Planning Committee. Reflecting on her early experiences, she shared, “When I started, some of the professors immediately welcomed me in and encouraged me to write a paper and present at the Annual Institute. That was one of the first things I did, and it was intimidating, but I leaned into it.”
A Commitment to Diversity, Equity, and Inclusion
During her term as President, Rachael focused on expanding and shepherding the Foundation's Diversity, Equity, and Inclusion efforts. Although the Foundation already had established programs for students of color, she worked with the Foundation’s DEI Committee, its former Chair Shanisha Smith, and its current Chair Tara Righetti to establish a new program to support practicing attorneys of color with funding to attend the Annual Institute and leadership opportunities. After her term as President, she volunteered to join the Committee as a regular member. Rachael acknowledges the challenges in measuring progress when it comes to increasing the diversity or our speakers, committee members, and other leaders, and underscores the importance of updating profiles to showcase success and maintain momentum. Rachael said, “The true commitment of the Foundation and its leadership to diversity, equity, and inclusion is really exciting.” For her, a successful DEI initiative involves integrating commitment into standard operating procedures and a focus on continued progress in the right direction.
Empowering Future Leaders
Rachael counsels young professionals, especially persons of color, to get involved with the Foundation. The Foundation strives to be open to diverse voices with different backgrounds, perspectives, and experiences, but individuals can also play an active role in shaping their own experience within the organization. She encourages them to articulate their interests, contribute to committees, and showcase their enthusiasm for specific areas, ensuring a meaningful and fulfilling volunteer experience. “If you are passionate, let people at the Foundation know what you are interested in. Let people know so if there is a committee or institute that needs programming, you can get involved.”
The Foundation's Role in Shaping the Future
Rachael believes the Foundation has a crucial role to play in addressing the underrepresentation of diverse lawyers who practice in areas of natural resources, energy, and environmental law, which begins with fostering interest among diverse law students. By emphasizing the importance of diversity in the profession and showcasing the positive impact of the Foundation in furthering education, scholarship, and collegiality, the Foundation can attract a more diverse group of students who attend Foundation programs, meet and network with practicing attorneys in the field, and otherwise take advantage of the Foundation’s many Scholar Development Programs for students.
Rachael also mentioned her enthusiasm for the Foundation's historical and growing focus on international issues, emphasizing the opportunity to amplify diverse voices and perspectives globally. As the Foundation continues to support and advance more programming internationally, it is an increasingly pivotal force in connecting, educating, and empowering natural resources, energy, and environmental law attorneys worldwide.
Pilar Thomas
Pilar Thomas is a dynamic force in the realm of energy policy, respected for her strategic counsel benefiting Native American tribes. We recently interviewed Pilar, focusing the conversation on her involvement with the Foundation and its diversity, equity, and inclusion (“DEI”) efforts. Pilar’s journey includes service as the Deputy Director for the Office of Indian Energy Policy and Programs at the U.S. Department of Energy. In this capacity, she spearheaded the development and execution of pivotal policies for fostering energy development, electrification, and infrastructural enhancements on Tribal lands. Her expertise further blossomed in roles that include Deputy Solicitor of Indian Affairs for the U.S. Department of the Interior, and Interim Attorney General and Chief of Staff to Chairwoman Herminia Frias of the Pascua Yaqui Tribe, highlighting her multifaceted contributions to Tribal welfare and economic development.
Commitment to Volunteerism and Leadership
Not only has Pilar played integral roles within various governmental spheres, her commitment to The Foundation for Natural Resources and Energy Law has been commendable. She has served as a Trustee and currently serves on both the Board of Directors and the Audit Committee. Pilar has also been an active volunteer member of the Foundation’s Diversity and Inclusion Committee since its inception. In her various Foundation leadership roles, she has pushed the Foundation to recognize both its strengths and weaknesses, encouraged leaders at all levels of the organization to engage and involve more women and persons of color, and developed programs for the Foundation that have brought together Tribes, academics, government officials, and those who work with Tribes to develop energy and other projects on Tribal lands.
Commitment to Education and the Legal Profession
Pilar also embodies a commitment to education within the legal profession. Her journey with the Foundation began through invitations to present at Special Institutes that covered the intersection of Indian law and energy project development during her tenure at the Department of Energy. Pilar recalls that, “Connie Rogers [the Foundation’s former Treasurer] started getting me more involved. At some point she then asked me if I was interested in being nominated as a Trustee-At-Large.” Pilar’s involvement expanded as she actively contributed to programming, moderating, and chairing webinars during COVID, co-chairing the Foundation’s first virtual institute on Indian law and resource development, and most recently, co-chairing an in-person special institute. Pilar spoke of her passion for education. “My Mom is a retired schoolteacher, and information, education, knowledge, awareness, and understanding are important.”
For Pilar, becoming an attorney was a calling. “There are some professions that I think you are just born into, and I always wanted to be an attorney.” Her determination to collaborate with Tribes and affect positive change led her to a fulfilling career aligned with her aspirations. "I wanted to go back to Arizona and work with the Tribes, I wanted to ‘do-good.’ Fortunately, I was able to go to good schools, get good grades, and ultimately do what I want to do.”
Advancing Diversity, Equity, and Inclusion – The Future of the Foundation
Pilar’s dedication to DEI at the Foundation stems from an understanding of the transformative power of diversity within the broader legal profession. Her commitment is rooted in practicality and the need to mirror the evolving demographics of the country within the legal arena. She draws from her experience in the financial sector and the need to cater to diverse customers. “If we want diverse clients, we need diverse attorneys. If we want to expand our client footprint, we need to expand our lawyer footprint.”
Pilar’s aspirations for the Foundation are oriented toward fostering the next generation of diverse legal minds. She underscored the importance of engaging young professionals of color, both law students and new attorneys, through long-term commitments, student outreach programs, and more initiatives like the Foundation’s current DEI programs. Recognizing the underrepresentation of attorneys of color in the practice of natural resources and energy law, her vision extends beyond mere participation. It aims to provide a welcoming environment and avenues for young professionals of color to speak, write, access networking opportunities, and lead, amplifying their voices within the Foundation’s programs.
Foundation Leaders Part of a Team Examining Native Nations in the Energy Transition
Current and former Foundation Board members and Trustees Monika Ehrman, Pilar Thomas, and Monte Mills are part of a team of researchers working with multiple Native Nations in the western U.S. to understand decisonmaking around the future of endowed resources on reservations and energy development on reservation lands. The team is working closely with Tribal partners to ensure the work supports the Tribes’ priorities, rather than just extract knowledge. As part of this effort, they are carrying out legal analyses to inform Tribes as they seek to take advantage of new opportunities and overcome legal or policy barriers that stand in the way of the energy future they desire. You can read more about this project on the Resources for the Future website here.
The Foundation has held six in-person institutes and short courses and two webinars since the 69th Annual Institute in July. Read more about these timely, informative, and engaging programs organized and presented by Foundation volunteers and how you can still access these programs and earn CLE credit.
New NEPA Proposed Regulations: The Bipartisan Permitting Reform Implementation Rule
This webinar that was held on September 20th featured Jomar Maldonado, Director for NEPA, Council on Environmental Quality (CEQ), Megan Healy, Deputy Director for NEPA, CEQ, Ted Boling, Perkins Coie, former Associate Director, CEQ, Ann Navaro, Bracewell, former Counselor to the Solicitor, U.S. Department of the Interior, and Kym Meyer, Litigation Director, Southern Environmental Law Center. The panel of experts discussed the Bipartisan Permitting Reform Implementation Rule, the second phase of CEQ’s phased rulemaking amending the National Environmental Policy Act (NEPA) implementing regulations. The proposed revisions are substantial and seek to implement Biden Administration priorities, including bipartisan permitting reforms in the Fiscal Responsibility Act and first-time codification of climate change and environmental justice principles for NEPA purposes. If you missed this excellent webinar, you can purchase and watch the presentation for CLE credit on our Online Natural Resources Education Library here.
Pore Space Acquisition for Carbon Capture, Utilization, and Storage
This webinar that was held on September 22nd featured Tara Righetti, Professor of Law, University of Wyoming, Keith Hall, Professor of Law, Louisiana State University, James Mowry, Crowley Fleck, Casey Terrell, Crowley Fleck, and Jason Wasserburger, WSH Law. The panel examined important issues relating to Carbon Capture, Utilization, and Storage (CCUS), including incentives under the Inflation Reduction Act, a review of what pore space is and who owns its, the nature of the property interest in pore space, title for pore space projects, and a discussion of pore space acquisition agreements with private landowners and state lands. The webinar was not only informative but is also an excellent primer for those looking to attend the Foundation’s upcoming Special Institute on CCUS that will be held in March. You can still purchase and watch the presentation for CLE credit on our Online Natural Resources Education Library here.
Natural Resource and Energy Development in Indian Country
This two-day special institute that was held on November 2-3 in Chandler, Arizona, provided essential information for anyone considering an investment or development project on Indian ort Tribal land. The faculty came from a variety of backgrounds and viewpoints, including representatives from the oil and gas, mining, and renewable energy industries, Tribal governments, legal scholars, and former Federal officials. Presentations covered the basics of conducting business in Indian Country along with nuanced issues and advanced details of transacting with Tribal governments and their members, joint-venture and development agreements, ethics, permitting issues, and the ongoing trend of Tribes becoming active participants in developing their own natural resources. All of the presentations are available to purchase and watch for CLE credit on our Online Natural Resources Education Library here, with significant discounts available when you purchase multiple presentations.
Water Law Institute
This premier national legal education program for attorneys and professionals involved and engaged in all things water law was held this year in Chandler, Arizona, on November 2-3. The excellent lineup of speakers included water lawyers and professionals from private practice, academia, government, Tribes, companies, nonprofits, and other organizations from across the nation. They provided important insights and recent developments on water law, including issues of water acquisition and management, water quality, climate change and water scarcity, water regulation, and water litigation. If you missed it, you can still purchase and watch any of the presentations for CLE credit on our Online Natural Resources Education Library here. Significant discounts are available when you purchase multiple presentations.
Short Courses on International Oil & Gas Law, Contracts, and Negotiations, Parts 1 and 2
The International Oil & Gas Law Short Courses, Parts 1 and 2 once again took place on October 2-6 (Part 1) and October 16-20 (Part 2). With a large faculty of experienced and expert international oil and gas lawyers, professors, and professional negotiators, these interactive week-long courses covered all aspects of international oil and gas contracts and transactions from concept to discovery in Part 1, and from discovery to decommissioning in Part 2. Since 1994, these Short Courses, chaired by Energy Negotiator and Professor Harry Sullivan, have been attended by more than 3,200 delegates from 67 countries. The Short Courses are operated in a partnership among the Foundation, the Association of International Energy Negotiators (AIEN), and the Institute for Energy Law (IEL). The Short Courses will be held again next year on September 23-27, 2024, and September 30-October 4, 2024, in Houston, Texas. Registration for the 2024 courses will open in the spring.
40th Annual Oil & Gas Law Short Course
On October 16-20, the Foundation, in partnership with the Institute for Energy Law and the Energy and Mineral Law Foundation, held the 40th Annual Oil & Gas Law Short Course in Westminster, Colorado. This is the only course of its kind – a one-week comprehensive, immersive course on U.S. domestic oil and gas law taught by law professors from law schools throughout the nation and a select few practitioners who are experts in their fields. Offering 31 CLE credits, the course is essential for anyone new to the oil and gas field or wanting a comprehensive refresher and update on oil and gas law. If you missed it or want to send a colleague, we will be holding the 41st Annual Oil and Gas Law Short Course on October 21-25, 2024, in Houston, Texas. Registration for the 2024 course will open in the spring.
Short Course on Federal Oil & Gas Leasing, Development, and Operations
On October 16-19, we once again (but for the first time since the pandemic) held our four-day Short Course on Federal Oil & Gas Leasing, Development, and Operations in Westminster, Colorado. Taught by well-known practitioners and government agency employees who are expert in issues involving federal lands, this unique course included lectures and exercises that provided an understanding of the oil and gas federal leasing system, regularly encountered issues involving federal lands and federal leasing, and practical solutions for avoiding or resolving those issues. If you or a colleague want to attend the course in the future, we plan to offer it next in October 2025 in the Denver area. If you have questions about the course or want to get involved as a presenter, please contact the Foundation.
Registration is Open for These Upcoming 2024 In-Person Programs
Third Annual U.S. Oil and Gas and Renewable Energy Law Seminar at NAPE
February 7, 2024 | Houston, TX
Mining Law Seminar and Reception (Before PDAC)
March 3, 2024 | Toronto, Ontario
Carbon Capture, Utilization, and Storage
March 7-8, 2024 | Houston, Texas
Human Rights, Social Risk, and the Energy, Infrastructure, and Extractive Sectors
April 11-12, 2024 | Coral Gables, Florida
Federal and Indian Oil & Gas Royalty Valuation and Management
April 25-26, 2024 | Houston, Texas
Mineral Title Examination, Review, and Due Diligence for Oil and Gas and Mining Projects
May 16-17, 2024 | Westminster, Colorado