October 01, 2013

Energy

Houck, D.L., “Indian Energy Development and the Law,” Vol. 22, No. 1 Environmental Law News (Summer 2013), a publication of the Environmental Law Section of the State Bar of California, provides an overview of the challenges of developing renewable energy projects in “Indian country” in California. “Indian country” is defined under federal law in 18 U.S.C. § 1151.

Houck notes that “[v]ast amounts of energy resources are located within Indian country, and development of these resources can provide much-needed economic resources to rural Indian populations with high unemployment rates.” However, energy development in Indian country “involves a number of unique legal concepts,” which cause such projects to be “more complex than in non-Indian country.” According to Houck,

Projects proposed in Indian country may encounter multiple different land ownership types, including tribal trust lands, restricted fee lands, tribal lands owned in fee within the reservation boundaries, and land allotments held in trust for the benefit of individual Indians. Such projects also implicate concepts such as tribal sovereignty, federal trust responsibility, land base and geographic limitations and land ethic. . . . Moreover, energy development in Indian country within California is often located in close proximity to non-tribal operations.

Multiple jurisdictions usually mean multiple permits and approvals, which may be from tribal, federal, and state entities. In addition, the federal Clean Air Act and Clean Water Act apply in Indian country. And there are obstacles to streamlining the process. According to Houck,

Specific areas that need improvement include standardizing agency approval procedures; including tribes in decision-making processes; simplifying environmental review of projects in Indian country; establishing Indian energy development offices; improving access to transmission systems; and encouraging tribal energy resource agreements.

Financing Indian energy projects can also be a challenge. The author observes,

Tribal governments also need better financing mechanisms for energy projects. These mechanisms include ensuring that tribes can effectively generate tax revenues from projects in Indian country; providing meaningful loan guarantee programs; coordinating federal agency funding and programs; permanently extending investment credits that allow developers to take accelerated depreciation for investments in Indian country; and allowing tribes to tap the benefits of renewable energy credits.

According to the author, “[t]he federal government also needs to ensure that its energy programs and planning processes give sufficient consideration to tribal needs.” For example, she notes with respect to hydroelectric project approval, “Section 7(a) of the Federal Power Act provides a preference to states and municipalities, but not to tribes, when they apply for hydroelectric preliminary permits and original licenses. Tribal governments should be provided the same preferences.” Houck notes, “[i]ncluding tribes in federal planning processes will allow for better, more efficient energy planning that will open up new sources of renewable power in Indian country [and] will help promote renewable power and energy efficiency in some of the areas of the country where it is most needed.”