The Promise and Perils of Renewable Energy on Tribal Lands

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In theory, the ninety-five million acres of tribal lands 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 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 non-Indians 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.