Perils of Renewable Energy on Tribal Lands

Chapter 5
The Promise and Perils of
Renewable Energy on Tribal Lands
Sara C. Bronin1
In theory, the 95 million acres of tribal lands2
in the United States are perfect sites
for the renewable energy infrastructure that could help to meet the energy needs of
not just tribes, but the rest of the nation. They often have plentiful sunlight, wind,
and open space, resources that are important prerequisites for renewable energy
production. They are not necessarily governed by the land use or environmental
regulations that sometimes inhibit energy projects in more densely populated
areas. At the same time, on-site renewable energy may provide direct economic
benefits for tribes, including “green jobs,” infrastructure improvements, and
production revenues shared by the community. Moreover, on-site generation
could significantly reduce energy expenses for tribal households, who pay more
for energy than any other group in the country.
In keeping with this theory, the Indian Tribal Energy Development and
Self-Determination Act (ITEDSA) was passed in 2005 to provide tribes with a
1 Associate Professor, University of Connecticut School of Law.
2 In this chapter, the term “tribal lands” is meant to be consistent with that definition
in the Indian Tribal Energy Development and Self-Determination Act (ITEDSA) and
includes “any land or interests in land owned by any Indian tribe, title to which is held in
trust by the United States, or is subject to a restriction against alienation under laws of the
United States.” 25 U.S.C. § 3501(12). It is not intended to encompass all of those lands
defined in ITEDSA as “Indian lands,” which include:
(A) any land located within the boundaries of an Indian reservation, pueblo, or rancheria;
(B) any land not located within the boundaries of an Indian reservation, pueblo, or
rancheria, the title to which is held—
(i) in trust by the United States for the benefit of an Indian tribe or an individual Indian;
(ii) by an Indian tribe or an individual Indian, subject to restriction against alienation
under laws of the United States; or
(iii) by a dependent Indian community; and
(C) land that is owned by an Indian tribe and was conveyed by the United States to a
Native Corporation pursuant to the Alaska Native Claims Settlement Act (43 U.S.C.
1601 et seq.), or that was conveyed by the United States to a Native Corporation in
exchange for such land.
Id. at § 3501(2). The term “Indian lands” includes land that is owned by or in trust for
individual Indians.
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104 Tribes, Land, and the Environment
framework for developing renewable energy infrastructure. It aims to allow tribes
to regulate the conveyance of their own energy resources, giving them, under
certain circumstances, the ability to enter into leases and other agreements for the
construction of renewable energy networks without federal supervision. Despite
its expansive aims, ITEDSA is flawed in two significant ways. First, as written,
ITEDSA fails to correct for misplaced financial incentives for renewable energy
development by tribes. The law continues federal policies that ensure that nonIndians3
and non-tribal business entities often reap far greater economic rewards
than tribes or members of tribes.
Second, ITEDSA, if fully implemented, has the potential to increase the
incidence of energy sprawl—that is, the occupation of vast, extra-urban or rural
tracts of land by energy generation facilities. The negative effects of energy sprawl
created by large-scale renewable facilities are well documented. To the extent that
the renewable energy networks are used to serve tribal lands, it is important to
encourage tribes to carefully assess environmental and ecological impacts. To
the extent that transmission or distribution lines connected to facilities located
on tribal lands extend beyond tribal lands, ITEDSA or some other statute must
articulate how tribal members can or should influence such lines’ siting.
This chapter analyzes the rationale for and substance of ITEDSA—the most
significant federal law relating to renewable energy on tribal lands—and identifies
ongoing challenges in the way the United States approaches renewable energy
infrastructure siting on tribal lands. It does not offer a comprehensive set of
solutions but rather identifies current issues in this area of law with a particular
focus on the characteristics of tribal lands themselves.
Why Tribal Lands?
Tribal lands present a unique, and in many respects highly appealing, opportunity
for the siting of renewable energy infrastructure. Renewable energy comes in
many forms and includes any type of energy production that does not draw on
finite resources. The National Renewable Energy Laboratory (NREL), a U.S.
Department of Energy research and development facility that focuses exclusively
on researching renewable energy, has identified seven basic sources of renewable
energy: biomass, hydropower, wind, geothermal, solar, hydrogen, and ocean. Of
these seven sources, biomass (derived from organic matter, such as food crops,
plants, algae, and waste products and gasses) and hydropower (derived from
the kinetic energy of flowing water) are the most common. Wind (derived from
3 As used in this chapter, the term “non-Indians” includes all those individuals who
are not members of a Native American or Native Alaskan tribe, and non-tribal members,
Indians who are not members of the relevant tribe. Non-tribal members include Native
Americans living within the boundaries of a reservation who are not members of the tribe
that regulates that reservation.
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The Promise and Perils of Renewable Energy on Tribal Lands 105
the kinetic energy of wind and processed primarily by turbines or windmills),
geothermal (derived from the internal heat of the earth), and solar (derived from
the conversion of sunlight, whether through photovoltaic or thermal means) are
less common, but seem to have captured greater attention from policy-makers.
Technical experts are still struggling to make hydrogen and ocean energy
commercially feasible and they will not be considered further by this chapter.
Currently in the United States, renewable energy comprises just 8 percent of
energy consumed.4
Tribal lands, which are primarily located in the western United States, often
have physical qualities highly conducive to the generation of renewable energy.
The Department of Energy’s Energy Information Administration (EIA) prepared
a report in 2000 documenting these qualities.5
It found that owing to latitude or
topographical conditions, many tribal lands would serve as good to excellent
sites for hosting renewable energy infrastructure such as solar photovoltaics,
concentrated solar power, wind generation, biomass, and geothermal wells.6
The
EIA further identified tribal lands that would be best suited for central station
development of electricity for renewable energy, and those that would be best
suited for specific kinds of renewable energy.7
For example, the EIA found that
biomass potential, which roughly corresponds to arable land, was promising in
118 of 298 reservations, containing 56 percent of the tribal population studied
by the EIA.8
With respect to geothermal resources (which can be directed toward
electricity production, direct heating, or geothermal heat pumps), the EIA crossreferenced maps produced by NREL and determined that 57 reservations may
have potential for electricity production, with another 72 having potential for
direct heat applications.9
Four years later, NREL conducted a survey that found
that tribal lands had the potential for solar power equal to 4.5 times the then4 U.S. Dep’t of Energy Energy Information Administration, Renewable Energy
Consumption and Electricity Preliminary Statistics 2009 (2010), available at http://
www.eia.doe.gov/cneaf/alternate/page/renew_energy_consump/rea_prereport.html. Nonrenewable resources including petroleum (37 percent), natural gas (25 percent), coal
(21 percent), and nuclear power (9 percent) comprise the remaining 92 percent.
5 U.S. Dep’t of Energy, Energy Information Administration, Energy Consumption
and Renewable Energy Development Potential on Indian Lands, Apr. 2000, available
at http://www.eia.doe.gov/Cneaf/Solar.Renewables/Ilands/toc.html [hereinafter Energy
Consumption and Renewable Energy Development Potential on Indian Lands].
6 Assuming no significant topographical or boundary changes to the tribal lands
analyzed by the EIA in 2000, these assessments hold true today.
7 Energy Consumption and Renewable Energy Development Potential on Indian
Lands, supra note 5, at ch. 3.
8 Id. (citing potential greater than five megawatts per county for these reservations).
9 Id. (noting that generally geothermal production is very site-specific and that these
projections are estimates only).
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106 Tribes, Land, and the Environment
current national energy generation.10 In addition, NREL found that the wind
potential on tribal lands is 535 billion kilowatt-hours per year, an amount that
equals as much as 14 percent of the U.S. electric generation.11 All in all, the
Bureau of Indian Affairs has estimated that tribal lands—which occupy just 5
percent of the land—have 10 percent of all energy resources (both renewable
and non-renewable).12 Harnessing the renewable component of these resources
would help both tribes and the rest of the country reduce their dependence on
fossil fuels.
Another characteristic that may make tribal lands more attractive for those
building renewable energy projects is their relative absence of land use regulations,
when compared with lands governed by non-tribal government. Many state, county,
and local governments have enacted rigorous land use regulations, including
zoning ordinances, growth controls, esthetic reviews, and environmental impact
laws. The purpose of such regulations varies, but they primarily aim to control the
way structures on real property look and are used. Public boards evaluate proposed
projects for compliance with applicable regulations, and modifications may be
required to accommodate certain requirements. On non-tribal lands, particularly in
urban areas, renewable energy projects can become delayed, modified, or canceled
as land use regulations require. For example, a jurisdiction’s zoning ordinance
may include a height restriction that prohibits the installation of tall windmills
that harness wind energy. Preservation laws might prevent the erection of solar
panels on roofs or in vacant lots in historic districts. Environmental regulations
may thwart the drilling of geothermal wells.
Such restrictions may not apply to renewable energy development on tribal
lands. Tribal governments have sovereign authority over tribal lands, and generally
exercise jurisdiction with respect to these lands exclusive of state, county, or
other local governments. Although some tribes have enacted zoning ordinances
to regulate the way certain parcels are used, many tribes have not adopted land
10 U.S. Dep’t of Energy, National Renewable Energy Laboratory, Potential Solar
Generation from Tribal Lands (2004), reproduced at http://www.harvestcleanenergy.org/
conference/HCE9/Post-conference/PPT/LizanaPierce.pdf (showing a map estimating
generation “using an annual average solar resource from a tilt = latitude collector” and
finding total tribal solar generation potential at 17,506 billion kilowatt-hours per year, with
total U.S. electric generation at 3853 billion kilowatt-hours per year).
11 Id. (estimating generation “assuming 5 MW/km2
of installed capacity, and capacity
factors ranging from 25.1% (class 4) to 41.4% (class 7)).” See also Office of Indian Energy
and Economic Development, Native American Wind Resource Atlas (2010), available
at http://www.bia.gov/idc/groups/xieed/documents/text/idc009842.pdf (cataloguing the
potential for wind energy of 29 reservations across the continental United States).
12 Cited in U.S. Dep’t of Energy, Office of Energy Efficiency and Renewable
Energy, Lizana K. Pierce, DOE’s Tribal Energy Program Power Point Presentation (2010),
available at http://apps1.eere.energy.gov/tribalenergy/pdfs/2_doe_tep_overview_lkp.pdf
[hereinafter DOE’s Tribal Energy Program Power Point Presentation].
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The Promise and Perils of Renewable Energy on Tribal Lands 107
use regulations.13 Even where such regulations have been adopted, they may not
be as effective as the same regulations on non-tribal lands, owing to limitations
on tribal authority imposed by court decisions and federal statutes.14 In certain
circumstances, land owned by a tribe may be subject to state, and not tribal land
use regulations.15
Moreover, tribes that have enacted land use regulations may be hindered in
fully enforcing those regulations within reservation boundaries on non-Indian
land—that is, real property within reservation boundaries that is not owned by
Native American individuals or tribes. The existence of non-Indian “islands”
within reservation boundaries derives largely from the Dawes General Allotment
Act of 188716 and companion laws and policies that carved up tribal lands into
individual allotments, many of which become alienable to non-Indians, and also
declared any remaining tribal lands to be “surplus,” and also alienable to nonIndians. Scholars have estimated that, until that practice was reversed in 1934,
almost 90 million acres of land was transferred to non-Indians.17 Today, conflicts
involving tribal management of non-Indian lands within reservation boundaries
endure, and the Supreme Court has been reluctant to allow tribes to regulate nonIndian activities. In an important 1981 case, U.S. v. Montana, the Court held that
tribes may regulate non-Indians on non-Indian lands only if they have a consensual
relationship with the tribe or a tribal member, or their “conduct threatens, or has
some direct effect on the political integrity, the economic security, or the health
and welfare of the tribe.”18 Applying Montana to the land use context (and contrary
to at least one circuit court interpretation of Montana),19 a plurality of the Court
wrote in Brendale v. Confederated Tribes & Bands of Yakima Indian Nation that
tribes should be able to impose land use regulations on only those areas within the
13 Cohen’s Handbook of Federal Indian Law § 4.01(2)(c) (Nell Jessup Newton et al.
eds. 2005) [hereinafter “Cohen’s Handbook”] (“Many tribes are now beginning to impose
land use and zoning controls similar to those adopted by non-Indian communities as a
means of preserving and protecting resources.”) (citations omitted).
14 Id. at § 21.02(5)(b) (identifying both Brendale and the Indian Civil Rights Act as
among the potential barriers to a fully effective and enforceable zoning regime).
15 Such is the situation in the State of New York, according to two recent cases, with
respect to lands relatively recently acquired by tribes. See Seneca-Cayuga Tribe of Okla. v.
Town of Aurelius, 233 F.R.D. 278 (N.D.N.Y. 2006); Cayuga Indian Nation of N.Y. v. Vill.
of Union Springs, 390 F. Supp. 2d 203 (N.D.N.Y. 2005).
16 24 Stat. 388 (1887) (codified at 25 U.S.C. § 331 et seq.).
17 See Cohen’s Handbook, supra note 13, at § 1.01 & § 1.04 (“In 1887, when the
Dawes Act provided for allotting tribal lands to individual Indians, the American Indian’s
heritage in land totaled 138 million acres. Less than 50 years later, when the allotment
policy was abandoned, only 48 million acres were left in Indian hands.”).
18 U.S. v. Montana, 450 U.S. 544, 565 (1981).
19 See, e.g., Knight v. Shoshone & Arapahoe Indian Tribes, 670 F.2d 900, 903 (10th
cir. 1982) (finding that the tribes involved in the litigation had a significant tribal interest in
enacting a comprehensive land use regulation scheme within a reservation).
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108 Tribes, Land, and the Environment
reservation where tribal land predominated.20 The absence of a majority opinion in
Brendale has created difficulties for tribes and non-tribal governments attempting
to reconcile conflicting land use regulations on the ground. With this unclear and
unevenly enforced land use regulatory framework, owners of renewable energy
projects may find flexibility that they would not find on non-tribal lands.21
Developers of renewable energy may be drawn to tribal lands for the foregoing
reasons. Complementing this attractiveness to developers, Native American tribes
have reason to want renewable energy production and distribution on tribal lands.
Many tribes have cultures and religions rooted in concern for ecological balance,22
and renewable energy that is sensitive to environmental concerns therefore might
be a fitting choice. More practically, there is the potential for revenue generation.
Energy facilities’ output may be harnessed by tribal governments and, in the right
economic conditions, reduce operating costs spent on more traditional forms of
energy procurement. Arrangements between third parties, such as leasing land or
equipment, may generate other income for the tribe as a whole, and jobs may be
created for individual members of tribes, related to installing, constructing, and
maintaining solar panels, wind turbines, and other renewable technologies.23
20 492 U.S. 408 (1989).
21 Much has been written about the issues surrounding Montana and Brendale.
For broad context of tribal sovereignty over non-Indian land within Indian country, see
Cohen’s Handbook, supra note 13, at § 6.02(2)(b). See also Philip P. Frickey, A Common
Law for Our Age of Colonialism: The Judicial Divestiture of Indian Tribal Authority over
Nonmembers, 109 Yale L.J. 1 (1999) (characterizing Montana and Brendale as part of an
incoherent, even “chaotic,” id. at 44, line of cases); David H. Getches, Conquering the
Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law, 84 Cal. L.
Rev. 1573 (1996) (criticizing both Montana and Brendale as being part of a trend of overly
subjective interpretations of tribal sovereignty by the Supreme Court); Judith V. Royster,
The Legacy of Allotment, 27 Ariz. St. L.J. 1 (1995) (analyzing the cases in light of federal
allotment law and policy and stating: “With each succeeding decision, the Court becomes
more adamant about furthering the allotment policy and less amenable to protecting, or
even perceiving, tribal interests.”).
22 The contours of this assertion cannot be adequately explored by this chapter, but
for a more nuanced analysis, see Rebecca Tsosie, Tribal Environmental Policy in an Era of
Self-Determination: The Role of Ethics, Economics, and Traditional Ecological Knowledge,
21 Vt. L. Rev. 225, 272–87 (1996) (providing a thorough account of indigenous land
ethics). Tsosie expands upon another scholar’s assertion that tribes’ traditional world views
include, among other important aspects, “a concept of reciprocity and balance that extends
to relationships among humans, including future generations, and between humans and
the natural world.” Id. at 276 (drawing from Ronald Trosper, Traditional American Indian
Economic Policy, 19 Amer. Indian Culture and Res. J. 65 (1995)). She goes on to explain:
“The interrelationship of people and land, combined with the deeply rooted ethics of
reciprocity and balance, lead to a long-term view of ecological stability or, in contemporary
terms, a concern with ‘sustainability.’” Id. at 285.
23 See National Wildlife Federation, The New Energy Future in Indian Country:
Confronting Climate Change, Creating Jobs, and Conserving Nature 15 (2010)
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The Promise and Perils of Renewable Energy on Tribal Lands 109
Renewable energy development could also help meet the needs of the many
underserved households on reservations that lack access to reliable, affordable
energy, and in doing so advance the cause of “energy justice,” the movement that,
according to one scholar, “seeks to apply basic principles of justice as fairness to
the injustice evident among people devoid of life sustaining energy.”24 In 2000, the
Census gathered information showing that over 5500 tribal housing units lack access
to any fuel that would provide heat.25 The Department of Energy reported that, in
1990, one in seven households (about 16,000 in total) on tribal lands lacked access
to electricity or other arrangements that would provide electricity at no cost.26 This
rate is ten times the national average.27 Recognizing this problem, the EIA report
in 2000 identified 34 reservations, pueblos, and Tribal Jurisdiction Statistical
Areas with high incidences of households without electricity and projected the
availability of and the costs for solar, wind, biomass, and geothermal options.28
Any of these options would have to take the form of distributed generation—
that is, small-scale production facilities located very close to the households
needing service—to reach the underserved communities on tribal lands. Large,
concentrated energy-generating facilities on tribal lands would not necessarily
meet their needs. Of the 16,000 households counted by the Census to be without
electricity in 1990, over 75 percent were on the Navajo Reservation in Arizona
and New Mexico, which actually has generation and transmission facilities within
reservation boundaries.29 On the Navajo Reservation and elsewhere, the presence
of more generating facilities could help bring energy to underserved and remote
areas and advance the agenda of the energy justice movement.
Native Americans on tribal lands also expend a larger portion of their financial
resources on electricity than the national average. In 1990, the average tribal
household paid twice as much for electricity when measured by a percentage
available at http://www.nwf.org/News-and-Magazines/Media-Center/News-by-Topic/Global
-Warming/2010/~/media/PDFs/Global%20Warming/Reports/03-23-10_NWF_Tribal
Lands_LoRes.ashx (listing such jobs).
24 Lakshman Guruswamy, Energy Justice and Sustainable Development, 21 Colo. J.
Int’l Envtl. L. & Pol’y 231, 233 (2010). See also Lakshman Guruswamy, Energy Justice,
in Climate Change: A Reader (William H. Rodgers, Jr, et al. eds. 2011); Hari M. Osofsky,
Energy Justice (draft manuscript on file with author).
25 U.S. Census Bureau, Characteristics of American Indians and Alaska Natives
by Tribe and Language 2000, 110 (table 16), available at http://www.census.gov/prod/
cen2000/phc-5-pt1.pdf.
26 Energy Consumption and Renewable Energy Development Potential on Indian
Lands, supra note 5, at ch. 2.
27 Id. at app. B table B.1.A. (showing a rate of 1.4 percent for all U.S. households and
a rate of 14.2 percent for households on tribal lands).
28 Id. at ch. 3 (measuring costs for tribal lands ranging in size from the 239-person
Iowa TJSA to the 123,944-person Navajo Reservation, in 1990 population figures).
29 Id. at ch. 2.
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110 Tribes, Land, and the Environment
of income (4 vs 2 percent).30 Across the country, the 10 percent of households
spending the highest percentage of their incomes on electric costs spent an average
of 9 percent of their income for such costs; the top decile of tribal households
spent an average of 20 percent of their incomes.31 With respect to natural gas costs
as a percentage of income, the highest-paying decile of tribal households spent
15 percent of their incomes on natural gas, while the national average across all
deciles was a mere 2 percent.32 Renewable energy, if controlled directly by tribes
and their members, could reduce costs for those Native Americans who live on
reservations.
Recognizing the potential, and driven by the concerns described above, many
tribes have begun to explore renewable energy development. Yet tribes have often
been stalled in developing projects by cumbersome federal review requirements
and limited financial resources, among other factors. With the recent passage of
the Indian Tribal Energy Development and Self-Determination Act, Congress has
attempted to help tribes more easily navigate this process, although as the next
section will discuss, the Act has not yet met this goal.
The Unfulfilled Promise of ITEDSA
In 2005, Congress passed ITEDSA, which increases federal support of tribal
energy projects and provides a mechanism within which tribes may regulate and
develop their energy resources without constant consultation with the federal
government.33 Although the act itself does not define “energy resources,” the
regulations enacted in 2008 define the term to include a wide range of both
renewable and non-renewable resources.34 This chapter solely concerns itself with
ITEDSA’s applicability to renewable resources.
As written, the law affects tribes’ ability to develop renewable energy in
two primary ways. First, it provides for public support of certain development
activities. Two offices created after ITEDSA handle its implementation and help
to encourage tribal energy development: the Division of Indian Energy Policy
Development within the Indian Energy and Economic Development Office of the
Department of the Interior, and the Office of Indian Energy Policy and Programs
in the Department of Energy. ITEDSA also requires or allows, as applicable, the
Department of the Interior and the Department of Energy to offer grants, technical
30 Id. at app. B table B.2.A.
31 Id.
32 Id. (showing a rate of 1.4 percent for all U.S. households and a rate of 14.2 percent
for households on tribal lands).
33 25 U.S.C. §§ 3501–3506.
34 “Energy resources” means “both renewable and nonrenewable energy sources,
including, but not limited to, natural gas, oil, uranium, coal, nuclear, wind, solar, geothermal,
biomass, and hydrologic resources.” 25 C.F.R. § 224.30.
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The Promise and Perils of Renewable Energy on Tribal Lands 111
assistance, low-interest loans, and loan guarantees to tribes.35 Federal grants may
be used for technical assistance; energy conservation programs; studies relating
to acquisition of energy supplies, services, and facilities; planning, construction,
development, operation, maintenance, and improvement of tribal electrical
generation, transmission, and distribution; the development of a tribal energy
resource inventory; and other feasibility studies.36 The statute does not specify the
amount of funding required to be provided for any of these activities.
Second, and potentially more significantly, ITEDSA expressly authorizes
tribes that meet certain criteria to enter into contracts and create rights of way for
renewable energy projects.37 More specifically, it allows tribes to enter into leases
or business agreements for energy resource development on tribal land without
approval by the Secretary of the Interior (the “Secretary”) as long as the lease or
business agreement is executed pursuant to a tribal energy resource agreement
(TERA); the term does not exceed 30 years; and the tribe has entered into a TERA
with the Secretary.38 It also allows tribes to grant rights of way over tribal land for
electric transmission or distribution lines without approval by the Secretary if: the
right of way is executed in accordance with a TERA; the term does not exceed
30 years; and the line serves an electric generation, transmission, or distribution
facility on tribal land or a facility on tribal land that possesses or refines energy
resources developed on tribal land; and the tribe has entered into a TERA with the
Secretary.39 When a TERA exists, the federal government disclaims liability for
any losses resulting from agreements entered into pursuant to the TERA, placing
all responsibilities for such losses on the tribes.40
ITEDSA enhances tribes’ ability to take actions without the approval of the
Secretary, which reduces the time spent obtaining federal approvals and undergoing
federal review. Under pre-ITEDSA protocols, tribes had to receive approval from
the Secretary to engage in activities such as leasing land for renewable energy
infrastructure development. Modifications and cancellations of such activities
also required Secretarial approval. ITEDSA allows for tribes, in effect, to be
“pre-approved” for activities covered by ITEDSA, which reduces the time spent
petitioning and waiting for Secretarial approval.
35 25 U.S.C. § 3502.
36 25 U.S.C. §§ 3502–3503.
37 For a summary of the history of federal laws dealing with tribal self-determination
including ITEDSA, see Judith V. Royster, Practical Sovereignty, Political Sovereignty, and
the Indian Tribal Energy Development and Self-Determination Act, 12 Lewis & Clark L.
Rev. 1065 (2008).
38 25 U.S.C. § 3504(a).
39 25 U.S.C. § 3504(b).
40 25 U.S.C. § 3504(e)(6)(D) (“the United States shall not be liable to any party
(including any Indian tribe) for any negotiated term of, or any loss resulting from the
negotiated terms of, a lease, business agreement, or right-of-way executed pursuant to and
in accordance with a” TERA).
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112 Tribes, Land, and the Environment
Tribes may also save time by using ITEDSA to avoid having to comply with
the National Environmental Policy Act (NEPA).41 NEPA requires that, for “major
federal actions significantly affecting the quality of the human environment,”
a lengthy study called an environmental impact statement must document the
environmental impact of the action, its adverse environmental effects, and any
alternatives that could reduce any adverse effects.42 For an energy infrastructure
project overseen by a federal agency, an environmental impact statement might
include information about the effects of the construction on flora and fauna, wind
patterns, or historic artifacts. Environmental impact statements are notoriously
time-consuming and expensive to assemble and do not necessarily result in any
substantive changes to the action under review, since NEPA merely requires the
preparation of the statement and does not mandate any substantive results. The
Secretary’s entering into the TERA is subject to NEPA, with the NEPA review
period running concurrently with the public comment period for the TERA.43
However, the NEPA process is avoided once a tribe enters into a TERA, because
without the Secretary’s involvement in the decisions covered by a TERA, the
“federal action” trigger fails to be activated. The time and money saved results, in
theory, in a greater likelihood that an energy project might be undertaken.
Finalizing a TERA with the Secretary, however, may be itself a time-consuming
process for tribes. The Secretary has 270 days to review a proposed TERA and is
only required to approve one if the tribe has demonstrated that it has the capacity
to regulate the development of tribal energy resources and if the TERA includes
certain provisions. For example, among other things, the TERA must: provide a
process for identifying and evaluating significant environmental effects and for
identifying mitigation measures if needed; incorporate a public input phase; and
allow for the Secretary’s periodic review, evaluation, and feedback. In addition, it
must address how leases, business agreements, or rights of way with the tribes will
meet environmental laws, provide for public notification, establish a consultation
process with the states, allow for the Secretary’s nullification of such agreements
under certain circumstances, and become effective only when a copy is delivered
to the Secretary, among other things. The statute gives the Secretary the power
to suspend leases, business agreements, or rights of way or rescind approval of a
TERA, if she determines that the tribe is not complying with the TERA.44
As several scholars have noted, ITEDSA is among a new wave of federal statutes
that pushes tribes toward self-governance, treating the agreements between tribes
and the federal government more like treaties between sovereign nations than like
the top-down, paternalistic statutes of yesteryear.45 Even with self-governance as
41 42 U.S.C. § 4321 et seq.
42 42 U.S.C. § 4332(C)–(E).
43 25 C.F.R. § 224.70.
44 25 U.S.C. § 3504(e); 25 C.F.R. §224.10-.185.
45 See, e.g., Alex Tallchief Skibine, Indian Gaming and Cooperative Federalism, 42
Ariz. St. L.J. 253, 285–87 (2010); Royster, supra note 37, at 1080–82.
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The Promise and Perils of Renewable Energy on Tribal Lands 113
a goal, however, the number of requirements and the extent of the TERA process
have proven to be so cumbersome, and the disclaimer of all federal liability so
daunting, that as of mid-2011 no tribe had successfully negotiated a TERA with
the Secretary. Thus while ITEDSA has an ambitious title and important aims, in
practice it has changed little.
Remaining Challenges in Developing Renewable Energy on Tribal Lands
Unfortunately, ITEDSA has failed to spur tribe-controlled renewable energy
development on tribal lands. Furthermore, additional challenges remain, even as the
need to address tribes’ unique obstacles during the renewable energy development
process have become clear. These obstacles include: insufficient public support,
inability to fully utilize the same financial incentives for renewable energy as
private investors, and remote location far from existing regional transmission
lines.46 Each will be discussed in turn.
Tribes often lack enough readily available capital to study and plan multimillion dollar renewable energy projects, much less construct them.47 Typically,
development involves six phases: first, a market analysis; second, a scoping
analysis to determine the viability of the project; third, load and transmission
studies leading to a preliminary engineering design; fourth, legal and financial
commitments are obtained; fifth, construction and commissioning of the project;
and sixth, the project begins operating and ongoing maintenance also begins.48 Each
of these phases can be very expensive, especially for those communities without
trained technical experts who could assist with the evaluation of alternatives.
Tribes’ ability to even begin the process of developing renewable energy
often depends on outside financial support. A range of federal agencies, from
the Department of Energy to the U.S. Environmental Protection Agency, offer
grants for strategic planning, analysis, business development, job training, and
construction. Between 2002 and 2010, for example, the Department of Energy’s
Tribal Energy Program disbursed $30.4 million in support of feasibility studies
46 National Wildlife Federation, supra note 23, at 16 (summarizing these obstacles).
47 Because of their unique legal status, tribal members and tribal corporations face
numerous challenges accessing capital and maximizing profitability beyond the renewable
energy context. For recent scholarship describing these barriers, see two related articles by
Professor Gavin Clarkson: Accredited Indians: Increasing the Flow of Private Equity into
Indian Country as a Domestic Emerging Market, 80 U. Colo. L. Rev. 285 (2009); Wall
Street Indians: Information Asymmetry and Barriers to Tribal Capital Market Access, 12
Lewis & Clark L. Rev. 943 (2008).
48 National Renewable Energy Laboratory & the Alliance for Sustainable
Energy, LLC, Douglas C. MacCourt, Renewable Energy Development in Indian
Country: A Handbook for Tribes 10–11 (2010), available at http://www.nrel.gov/docs/
fy10osti/48078.pdf.
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114 Tribes, Land, and the Environment
or construction of 129 tribal projects.49 In addition, the U.S. Department of
Agriculture, the Bureau of Indian Affairs, and the U.S. Department of Housing
and Urban Development offer a variety of low-interest loans and loan guarantee
programs, and the American Recovery and Reinvestment Act pumped millions
more into renewable energy programs, with tribal set-asides. Still, with a single
solar installation alone costing several million dollars, these federal programs
cannot possibly offset all costs. It is not clear how many of the 565 federally
recognized tribes are currently interested in pursuing renewable energy projects,
but significantly more money must be set aside for tribal development projects
across the country to ensure that the tribes who do want help can get enough.
Public financial support is more important for tribes than for other groups,
as tribes cannot take advantage of the same financial incentives for renewable
energy as taxable private entities. Private investment in renewable energy has been
spurred, in large part, by incentives such as tax credits that offset the costs of
projects. The federal production tax credit, for example, gives a tax credit of 1.5
cents per each kilowatt-hour to the producer of electricity produced from wind,
biomass, geothermal, solar, and other sources.50 The federal energy investment tax
credit provides a tax credit of up to 30 percent of certain costs for qualifying wind,
solar, fuel cell, and other projects.51 Tribes, however, do not pay federal taxes to
which such credits would apply, and the credits are not transferable from tribes to
taxable entities.
The inability to take advantage of tax credits and other incentives forces
tribes eager to build renewable energy projects to make hard choices. Instead of
entering into joint venture relationships, in which a tribe and non-tribal entity coown infrastructure, tribes and tribal entities more commonly enter into leasing
arrangements, in which tribes lease their land and the non-tribal entities build and
own the infrastructure. As landlords, tribes must often pay state taxes on leasing
income, which reduces the value of the lease. Moreover, lease terms may be longer
than would otherwise be preferable so that the non-tribal entity can take advantage
of tax credits or other incentives. Leases may also hinder tribes’ efforts to negotiate
the transmission of energy to their own people, if the non-tribal entity owning
the infrastructure anticipates higher profits from non-tribal end users. Making
renewable energy-related tax credits transferable, as some have suggested, would
help to make partnering with non-Indian taxable entities more lucrative for tribes.
Finally, neither ITEDSA nor any other law clearly addresses the effects of
energy sprawl on or beyond tribal lands. Energy sprawl, a term coined by the
Nature Conservancy in 2009, refers to the amount of land occupied by energy
production and the related impacts on ecosystems, habitat, and wildlife activity.52
49 DOE’s Tribal Energy Program Power Point Presentation, supra note 12.
50 26 U.S.C. § 45.
51 26 U.S.C. § 48.
52 Robert I. McDonald et al., Energy Sprawl or Energy Efficiency: Climate Policy
Impacts on Natural Habitat for the United States of America, 4 PLoS One 1, 1 (2009).
Copyright © ${Date}. ${Publisher}. All rights reserved.
The Promise and Perils of Renewable Energy on Tribal Lands 115
The Nature Conservancy measured the land-intensivity of different methods of
energy production and found that even the “greenest” of technologies disturbs
land, both directly and indirectly. For example, solar photovoltaic energy is
estimated to disturb 37 square kilometers per terawatt-hour produced annually,
while wind development is estimated to disturb 72 square kilometers per terawatthour.53 Biomass, meanwhile, is estimated to disturb a startling 550 kilometers per
terawatt-hour, owing to the large quantities of plant or crop material needed to
produce each unit of energy.54
The potential for energy sprawl may actually be more significant on and near
tribal lands than elsewhere. Many tribal lands are vast territories with populations
living far less densely than in urban areas, so unless distributed generation is
used to deploy small-scale renewable energy to smaller groups of end users,
infrastructure within tribal lands must be built across long distances. For those end
users off tribal lands, to whom sales may be part of the economic calculus of the
project, transmission of energy from a tribal generating facility may also be spaceconsuming. Even if an energy project is situated at or near a border, getting energy
from a tribal energy project to non-Indian end users could require extensive (not to
mention expensive, at perhaps $10,000 a linear mile) transmission and distribution
infrastructure.
Further compounding the energy sprawl problem, as noted above, environmental
and land use controls on tribal lands may be less rigorous than in other areas. As
a result, the impact of the construction of renewable energy infrastructure may
go understudied, and less care may be taken in its siting. Even ITEDSA, which
attempts to facilitate renewable energy projects on tribal lands, could have the
unintended consequence of allowing for siting to occur in a detrimental fashion,
by advancing a mechanism for tribes to avoid complying with NEPA. Although
NEPA does not require the least environmentally disruptive alternative, it at least
requires the documentation and consideration of environmental impacts. ITEDSA
requires tribes seeking to enter into a TERA to propose a process for environmental
review, but it is not clear whether this review would have to include impacts of
infrastructure development on the land and ecosystems.55
Moving the engines of production closer to their end users is one way to
reduce energy sprawl,56 but for tribes with limited resources to invest in renewable
energy, small-scale production serving small groups seems unlikely to occur. So
53 Id. at 4.
54 Id.
55 Judith Royster has identified other concerns with ITEDSA’s approach to
environmental review, including its public review requirements, which she feels “conflict
[…] sharply with tribal self-governance.” Royster, supra note 37, at 1086, 1090–95.
56 See, e.g., Sara C. Bronin, Curbing Energy Sprawl with Microgrids, 43 Conn. L.
Rev. 547 (2010) (recommending small-scale microgrids that produce energy to help reduce
energy sprawl).
Copyright © ${Date}. ${Publisher}. All rights reserved.
116 Tribes, Land, and the Environment
for the large-scale projects anticipated by ITEDSA, siting guidelines are needed to
minimize environmental impacts.
Conclusion
As the United States pushes for more renewable energy infrastructure, tribal
lands rich in opportunities for siting renewable projects must be seen as part of
the solution. The current legal framework for using tribal land for renewable
energy projects fails, however, to adequately address the needs of tribes and the
environment. As a result, some of the land most suitable for renewable energy
projects continues to lie dormant, while some land being developed for energy
projects may be in jeopardy of long-term damage.
Where do we go from here? As a starting point, policy-makers should fully
fund or expand existing programs giving public support to tribes for renewable
energy projects and make it easier for tribes and their members to obtain grants,
technical assistance, low-interest loans, and loan guarantees. The expansion of
these financial incentives depends on political will and budget priorities, but a
factor cutting in favor of expansion is that even moderate public subsidies of
renewable energy generate significant tribal and non-tribal private investment.57
Along the same lines, Congress and state legislatures should make renewable
energy tax credits fully transferrable by tribes to taxable entities willing to pay
for them.58
As a second step, the portions of ITEDSA that relate to tribal energy resource
agreements should be reconsidered and revised. The revision process must fully
involve diverse tribes, and tribal sovereignty must underlie all decisions.59 Several
key areas call for revisions. The time limit on the terms of lease and business
agreements—currently 30 years—might be lengthened or abandoned. The number
of days the Secretary may take to review a proposed TERA may be shortened
from the current figure, 270. Perhaps most significantly, tribes and policy-makers
could consider how better to allocate liability for losses related to agreements the
tribes make under a TERA. A careful review of ITEDSA’s TERA provisions, and
57 See Elizabeth Ann Kronk, Alternative Energy Development in Indian Country:
Lighting the Way for the Seventh Generation, 46 Idaho L. Rev. 449 (2010) (describing
barriers to renewable energy projects on tribal land and focusing on projects in the Navajo
Nation, Kumeyaay Tribe, and Blackfeet Nation).
58 See Mark Shahinian, Note, The Tax Man Cometh Not: How the Non-Transferability
of Tax Credits Harms Indian Tribes, 32 Am. Indian L. Rev. 267 (2007–2008) (providing a
detailed argument in favor of fully transferable tax credits).
59 James M. Grijalva’s chapter in this book proposes the same framework for
the environmental review context. He analyzes recent attempts to adapt federal public
participation regulations to the tribal context and argues that true environmental justice
is possible only when tribal sovereignty underlies the adapted environmental review
processes.
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The Promise and Perils of Renewable Energy on Tribal Lands 117
reforms approved by both policy-makers and tribes, would encourage tribes to
take advantage of the self-determination powers granted by ITEDSA.
Finally, tribes’ obligations with regard to their impact on the natural
environment should be clarified in ITEDSA and other statutes. As noted above,
although ITEDSA mandates an environmental review for projects subject to a
TERA, the statute fails to delineate tribes’ specific obligations. It also omits any
siting guidelines that might reduce the negative effects of energy sprawl. Even if,
in consultation with tribes, Congress changed ITEDSA to include more specific
environmental review and siting procedures, such procedures would probably
only apply to projects built pursuant to a TERA. Accordingly, other legislation
must be drafted to account for these important priorities outside the TERA context.
This chapter, which has focused on identifying current issues regarding siting
renewable energy on tribal land, concludes with these broad suggestions, while
leaving the articulation of specific solutions to others. A comprehensive solution
to overhaul the tax, jurisdictional, and land use laws to facilitate tribes’ use of
renewable energy cannot come too soon for these important projects.
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