From Exploitation to Equity: Building Native-Owned Renewable Energy Generation in Indian Country

Abstract

Indian country contains abundant renewable energy resources, and harnessing such resources is vitally important for national climate change mitigation efforts. Shifting the electric grid towards wind and solar generation also carries local environmental and health benefits, increases energy independence, and serves national security interests. For willing tribes, renewable energy development offers an opportunity for job growth and income base expansion. But if that development is to serve all parties: tribes, states, and the nation, then the current policy framework must change. If it does not change, policymakers risk continuing the long history of exploitative resource development on reservations. This article examines how legal structures impede utility-scale renewable energy development in Indian country and limit tribal self-determination. At the beginning of the Obama Administration, with increased national interest in climate change, commentators seized upon the potential of renewable energy to increase tribal sovereignty, improve Native economies, and provide greater access to electricity. Following years of false starts, legal scholars asked why the clean energy revolution was passing by Indian country and identified obstacles that slowed the growth of renewables. Despite such obstacles, by the end of 2017, a few large projects were operational. This paper examines how those projects succeeded within the current framework. The working installations serve as a rebuke to decades of abusive resource extraction arrangements and dirty fossil fuel power plants, which have produced severe health impacts and environmental degradation on Indian lands. But they also show how the existing legal and policy frameworks compel tribes committed to renewable energy development into certain arrangements, which then place constraints upon tribal sovereignty and limit the potential benefits to the tribe. Part I explains U.S. electricity law and renewable energy potential in Indian country. Part II addresses how the current legal and policy frameworks underpinning projects impede the widespread adoption of renewable energy in Indian country. Part III covers recent successes and failures, in order to draw functional lessons for parties interested in pursuing wind and solar projects within the existing framework. Part IV recommends policy and legal reforms that would increase tribal ownership of renewable energy projects while benefiting tribes, states, and the country as a whole. In particular, recommended reforms include providing mechanisms that promote self-determination through tribal project ownership, increasing federal financial support mechanisms, changes to current electricity regulations, and amending federal and state tax regimes to avoid stifling development in Indian country. Citation: From Exploitation to Equity: Building Native-owned Renewable Energy Generation in Indian Country, 43 Wm. & Mary Envtl. L. & Pol'y Rev. __ (forthcoming February 2019)