It’s windy in the Great Plains and it’s sunny in the Southwest. These two basic geographic facts underscore much of the green energy transition in the United States — and put many Native American tribes squarely in the middle of that process.
The National Renewable Energy Laboratory has estimated that “American Indian land comprises approximately 2% of U.S. land but contains an estimated 5% of all renewable energy resources,” with an especially large amount of potential solar power. Over the past few months, a spate of renewable energy projects across the country have found themselves entangled with courts, regulators, and tribal governments over how and under what circumstances they are permitted on — or even near — tribal lands.
In Oklahoma, a federal judge ordered that dozens of wind turbines be removed after ruling that the developers had violated federal law by not seeking mineral rights. In Arizona, two tribes and two nonprofits sued the Bureau of Land Management, objecting to the planned route of a massive transmission project. Tribes objected to designating an area off the Oregon coast for wind farming, and federal energy regulators announced a new policy requiring energy developers to get tribal permission prior to seeking any permits for projects on tribal lands.
“We are establishing a new policy that the Commission will not issue preliminary permits for projects proposing to use Tribal lands if the Tribe on whose lands the project is to be located opposes the permit,” the Federal Energy Regulatory Commission said in a filing denying a trio of pumped-storage hydropower projects on Navajo Nation land in Arizona and New Mexico.
“Navajo Nation is in support of solar power, and the Navajo utility has developed some solar sites, which are operating right now,” George Hardeen, public relations director for the Navajo Nation leadership, told me. “But pumped storage, we’re not quite ready for that.” Just like everyone else in Arizona, New Mexico, or neighboring states, the Navajo Nation has a heavily contested relationship with its surrounding water resources. The Navajo Nation recently lost a case in the Supreme Court, where it argued the federal government had an obligation to meet its water needs under 1868 and 1849 treaties.
While the legal issues around tribal governance are distinct, the dilemmas and tradeoffs of energy development — renewable or otherwise — are not. Energy production itself is nothing new for the Navajo Nation. The now-shuttered Navajo Generating Station operated for almost 50 years with a workforce that was almost exclusively Navajo. Along with a neighboring mine, it generated tens of millions of dollars of royalty and other payments for the Navajo Nation and the neighboring Hopi Tribe.
But the competing goals of speedy renewable energy development versus protection of the landscape become heightened on native lands.
“You’ve always had consultation requirements,” Heather Tanana, a visiting professor at the University of California-Irvine, told me. “The big change is the weight of the tribal voice in that process,” describing FERC’s policy as a “shift to actual empowerment of tribal communities who decide what is going to happen.”
FERC’s decision is consistent with a Biden administration-wide effort to empower tribes on a “nation-to-nation” basis. This effort has naturally heavily involved the Department of Interior — led for the first time by a Native American, Pueblo of Laguna member Deb Haaland — which oversees the Bureau of Indian Affairs, as well as a bevy of agencies including the Bureau of Land Management and the Bureau of Ocean Energy Management, which play major roles in energy infrastructure.
“Having the agency take this position is consistent is what the administration has said it should do,” Tanana said. “It’s good because it shows something tangible and real, and not just good intentions that haven’t always played out well in the past.”
That’s putting it mildly. The history of energy development and Native Americans is marked by exploitation, whether the subject is the Osage murders of the 1920s, lung cancer among Navajo uranium mine workers, or the construction of dams that obliterated native fishing grounds.
“The Biden administration is very sensitive to tribal concerns,” Warigia Bowman, a law professor at the University of Tulsa, told me. But enforcement of the new requirements will be up to regulators and prosecutors across the country, Bowman said.
That enforcement has been especially harsh in Osage County. Typically, landowners control both the surface and mineral rights of their land, which essentially means they can sell both the land they own and the rights to what’s underneath it. But the mineral rights on the Osage Nation Reservation are exclusively owned by the Osage Tribe and overseen by the elected Osage Minerals Council, which can lease out mineral rights. And, like many in the petroleum business, the Osage Minerals Council has lamented limitations on drilling.
“What’s special about the Osage wind case is the specifics of land ownership for the Osage,” Bowman said. “It’s unusual to have surface and mineral rights separated.”
It’s these mineral rights that have turned into a massive headache for wind developers. The energy developers Enel and Osage Wind leased over 8,000 acres in Osage County for a wind farm starting in 2010. The Osage Minerals Council sued in 2011, saying the project would block its ability to develop any resources underneath the area the developers had leased. Then the federal government sued in 2014 when construction began, arguing that the excavation for the wind turbines’ foundations constituted mining without permission.
Late last year, a federal judge ruled that the developers owed monetary damages and the “ejectment of the wind towers.” The developers estimated that complying with the injunction would cost almost $260 million.
And energy development doesn't have to be on tribal land in order to potentially run afoul of laws and regulations mandating consultation. The Tohono O’odham Nation and San Carlos Apache Tribe, along with the nonprofit groups the Center for Biological Diversity and Archeological Southwest, sued the Bureau of Land Management seeking an injunction to stop construction of the SunZia transmission line, a decades-in-the-waiting 4,500 megawatt project that seeks to bring wind energy west from New Mexico. The project got approval from BLM last spring. The suit filed in January argued that the developers failed to adequately consult with tribes over “sacred and cultural resources in the San Pedro Valley,” even if the proposed route was on a mixture of federal, state, and private land.
“Under the [National Historic Preservation Act], agencies are required to make a good faith effort to identify Indian tribes for consultation,” Tory Fodder, a law professor at the University of Arizona, explained to me in an email. “The NHPA provides fairly robust consultation mechanisms for tribal cultural and religious sites that are not necessarily confined to the reservation of a tribe.” Since, Fodder said, both the Tohono O’odham Nation and the San Carlos Apache claim “ancestral connections to the area,” they should have been consulted early on.
The BLM and Pattern Energy both claim they were. In a response to the suit, the federal government argued that it had “engaged in lengthy, good faith consultation efforts with the Tribes and other consulting parties regarding the San Pedro Valley,” and that the route had been finalized since 2015, giving the tribes and nonprofits years to intervene.
In an emailed statement, Pattern Energy’s vice president of environmental and permitting, Natalie McCue, said: “Respecting tribal sovereignty and completing the United States’ largest clean energy project is not a binary choice. We deeply respect the Tohono O’odham Nation’s and the San Carlos Apache Tribe’s right to self-governance and to express their views on cultural protection. Given this, we were saddened by the decision to pursue legal action, especially given our commitment to open, good-faith dialogue on these vital issues.” Oral arguments in the case are scheduled for March; in the meantime, construction has been allowed to continue.
On the West Coast, there's growing tribal opposition to the beginning of a process for offshore wind development. The Confederated Tribes of the Coos, Lower Umpqua, and Siuslaw Indians said they were “extremely disappointed” in the Bureau Ocean Energy Management’s decision to designate two areas off the Oregon coast for wind energy development.
While the BOEM said the designation only came after “extensive engagement and feedback from the state, Tribes, local residents, ocean users, federal government partners, and other members of the public,” the Confederated Tribes contend that the areas “are within the Tribe’s ancestral territory, contain viewsheds of significant cultural and historic significance to the Tribe, and are important areas for Tribal fishing,” and that the Tribes only became aware of the designation from the Oregon Governor’s office, not the BOEM directly.
Although the stakes of the zero-carbon transition are new, the issues of sovereignty and exploitation of Native American lands are as old as the United States. “The Tribe will not stand by while a project is developed that causes it more harm than good,” the Tribal Council Chair Brad Kneaper said in a release. “This is simply green colonialism.”
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