The tide is turning toward more aggressive clean energy, climate change, and sustainable energy goals for states and energy utilities. Starting in the last decade—with the more widespread acceptance of impacts of climate change and bolstered by federal investment in renewable energy, energy efficiency and climate change mitigation, adaptation, and resiliency planning—states, cities, counties, and others have rolled out higher renewable energy standards and requirements. Unfortunately, this state governmental response has generally left out Indian tribes located within those same states, and tribes neighboring those counties and cities. This neglect can—and in many cases does—result in tribes being left behind in the deployment of renewable energy projects. States and state public utility commissions can reverse this trend and start to bring tribes along in the same direction as the tide.
Over the last decade, states, cities, and other local governments have made a substantial and uncontroverted shift toward energy policies that promote renewable energy, energy efficiency, climate change mitigation, and sustainable adaptation to climate change impacts. More than 35 states have now adopted renewable energy or clean energy standards or goals. State Renewable Portfolio Standards and Goals, National Conference of State Legislatures (Apr. 17, 2020). About half of these states have actively developed, promoted, and implemented greenhouse gas emissions reduction plans, with an emphasis on market-based solutions. Greenhouse Gas Emissions Reduction Targets and Market-Based Policies, National Conference of State Legislatures (Dec. 17, 2019). More states are also revisiting their efforts to bring clean energy, energy efficiency, and sustainability programs to low-income and vulnerable communities. State Policies for Low- and Moderate-Income Customer Access to Renewable Energy and Energy Efficiency (Nov. 16, 2016). While these actions are laudable, they are taken without the participation or consideration of Indian tribes and tribal communities located within these states. Nor do these policies and programs explicitly include tribes as partners or tribal renewable energy resources as potential solutions to achieving those important energy and climate change goals. This failure to engage tribes and incorporate them into these efforts leaves tribes behind.
Indian lands contain between 6.5 to 13 percent of the nation’s total technically feasible renewable energy resources. Techno-Economic Renewable Energy Potential on Tribal Lands (July 2018). Over the last 10 years, almost 200 tribes have sought federal funding and support—through grants and technical assistance—to study, assess, and deploy renewable energy and energy efficiency projects on tribal lands. DOE Tribal Energy Funding Assistance. Yet, despite this widespread interest and funding support, there are still only two commercial-scale renewable energy projects on tribal lands. The good news is that many more distributed energy projects (such as rooftop solar and small community scale projects) and energy efficiency projects have been deployed on tribal government buildings, tribal housing, and tribal enterprises. This has saved tribes and tribal members precious funds, created jobs, and reduced their carbon footprint. In addition to renewable energy development, tribes have begun to study, identify, and adapt to climate change impacts. This interest by tribes presents two major opportunities that are dependent on state energy policies: commercial-scale projects and community and distributed energy projects.
States routinely take regulatory action as to the public electric utilities they regulate without the benefit of tribal input on the impacts on tribal energy goals. Those utilities provide power to Indian tribes and tribal members. Even a cursory review of state energy laws or utility regulations reveals a dearth of guidance on interacting with tribes concerning their lands and energy resources. This silence may be welcome in some respects. After all, state law does not generally apply to Indian tribes and tribal lands. See, e.g., White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980) (holding state tax law does not apply on the White Mountain Apache reservation); New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983) (holding state regulatory scheme for hunting and fishing does not apply on Mescalero reservation). And, it is not surprising in other respects, since state energy laws generally regulate “public utilities.” See A.R.S., Title 40; N.M. Stat. Chap. 62. But in certain circumstances, this lack of mechanisms for engagement prevents tribes from taking advantage of programs that can benefit their own energy policies. For example, in California, counties and cities can form Community Choice Aggregation (CCA) entities. CCAs are authorized to acquire power from third parties—and are typically used to acquire renewable energy for their residents at lower costs. Tribes are not able to participate in CCAs because the California law that establishes the CCA authorities does not include tribes as eligible entities. Calif. Pub. Util. Code § 331.1. Because of this silence in the law, the California Public Utility Commission (which approves the formation of CCAs) has taken the position that tribes cannot form or join a CCA as a governmental entity. The end result is that states effectively regulate energy development on tribal lands through the regulation of the electric utilities that serve tribal lands.
There are at least four things states can do to fully engage and incorporate tribes into the energy and utility statutory, policy, and regulatory spheres of governance:
States and tribes share many governance, community, and economic development goals. In states where there are aggressive efforts to adopt clean energy and climate adaptation solutions, and to include low-income and vulnerable communities in those efforts, tribes should be consulted and engaged as partners to meet these shared goals.
