Monday, June 6, 2016

Tribes and Renewables Part III: The Role of the BIA in Tribal Renewable Underdevelopment

By Andrea Lang, Policy Analyst

As of last summer, only one utility-scale wind project had been completed on Indian land, and no utility-scale solar projects had been installed. This is compared with over 600 utility-scale wind projects and over 700 utility-scale solar projects that have been completed nation-wide. Given the myriad benefits of renewable development for tribes explained in Part II of this series, why is tribal land so underdeveloped? This week, Part III of this series on tribes and renewables explores the role of the Bureau of Indian Affairs (BIA) in hindering tribal renewable development, and suggests some solutions for overcoming this barrier.

About a year ago, the Government Accountability Office issued a report on Indian Energy Development broadly, finding that a number of factors contribute to the underdevelopment of energy resources on tribal land. The most important reason for the lack of energy development on tribal land has to do with the complicated relationship between tribes and the federal government. In order for tribes to lease their land, create easements, and conduct cultural and environmental studies and surveys, the Bureau of Indian Affairs (BIA) must review and approve tribal decisions. According to the report, this extra step in decision-making over development on tribal lands significantly hinders renewable energy development.

The GAO report highlights a number of examples in which tribes waited years for the BIA to review and approve leases and other agreements, often getting approval only after repeated calls and letters urging the BIA to act. These delays cause significant problems for renewable energy projects. For one, it creates a lot of uncertainty about the future of such projects, a factor that can make investors less willing to finance the project. Besides impeding the ability to obtain financing, delays can also cause other agreements to laps. For example, the Rosebud Sioux Tribe in South Dakota waited 18 months for the BIA to review a wind energy project lease, a delay that caused the loss of the project’s interconnection agreement. 

So what is the hold-up, and how can approval of renewable projects on tribal land be streamlined to make such projects easier to develop? 

The most apparent solution is to address the problems at the BIA that have led to the delays. According to the GAO report, many BIA offices do not have staff with sufficient expertise to evaluate and approve energy-related leases and other agreements. In addition, the BIA lacks a system for keeping track of its review and response process. Thus, the solution to the BIA’s delay issues would likely require providing more money to that agency to hire more qualified staff and to implement a record-keeping system.

An alternative option is to cut the BIA out of the process and let tribes make such decisions themselves. Congress has already enacted one mechanism for removing the need for BIA approval—the Indian Tribal Energy Development and Self-Determination Act. That law allowed tribes to enter into “Tribal Energy Resource Agreements” (TERAs) with the Secretary of Interior, which allow tribes to make decisions without the need to obtain BIA approval. Unfortunately, despite the fact that the law has been on the books for over ten years, not a single tribe has obtained a TERA, and only six have even begun the process of trying to obtain one. The GAO report explores the reasons why tribes have been disinterested in TERAs, namely because tribes lack the funding needed to carry out the review on their own. Presumably, if the BIA did not have to review all projects on tribal land, it would save resources. Thus, the regulations governing TERAs could be altered to provide tribes with those saved resources to remedy the tribes’ concerns about lack of funding.

While the BIA approval process is a significant barrier to renewable development, it is not the only one. Next week’s post in this series will explore some of the other barriers to renewable development on tribal land.

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