Monday, July 11, 2016

Tribes & Renewables Part V: Potential For and Conflicts Over Renewable Project Development on Federal Land

By Andrea Lang, Policy Analyst

Credit: National Park Service
Over the last several weeks, this blog series has explored the potential for renewable energy development on Indian land and the benefits of (Part II) and barriers (Parts III & IV) to such development. Now, Part V turns to a wholly separate issue related to Tribes & Renewables: how renewable development on federal land affects tribal interests, and how to address such conflicts. 

The Potential for Renewable Development on Federal Land 

In terms of the potential for utility-scale renewable development on federal land, it’s important to understand how vast this land; the federal government owns about 650 million acres of land, which makes up about 28% of all the land in the country. Moreover, much of this land is rich in renewable resources. To visualize the potential for solar development on federal land, just take a look at the two maps below. The colored areas on the left map show where federal land is located (except the pink areas, which are Indian lands), while the red and orange areas on the right-side map show the best areas in the country for solar PV. The overlap is pretty striking; much of the southwest is dominated both by excellent solar resource and federal lands.

The National Renewable Energy Laboratory has concluded that developing only 10% of available renewable resource potential on federal land would yield 140 GW of solar PV capacity, 400 GW of concentrating solar power capacity, 80 GW of wind energy capacity, 20 GW of geothermal capacity, and 0.3 GW of biomass capacity. In total, this would provide 640 GW of renewable energy capacity, which is more than half of current total U.S. capacity. Given the amount of public land available and the potential for developing renewable energy, federal land is likely to be increasingly important as the U.S. continues to expand the share of its electricity coming from renewable energy sources. 

So What Does Renewable Energy Development on Federal Land Have to do with Tribes?

As obvious as it may seem, it’s important to remember that tribes once occupied significantly more land than they do now. Thus, many of the archeological sites, as well as still-used spiritual or cultural sites, are located off-reservation, including on federal land. Thus, any attempts develop renewable resources on federal land should take care not to damage any native cultural resources. 

Fortunately, federal law requires government agencies with decision-making authority over a project to consider impacts on cultural resources. The National Historic Preservation Act (NHPA), which is 50 years old this year, requires federal agencies to “take into account the effects” of their undertakings on historic property, including tribal cultural resources, through something called the Section 106 process. Thus, rather than affirmatively requiring agencies to avoid impacts to cultural resources, section 106 of the NHPA merely requires that, in consultation with affected tribes, the agency takes a project’s impacts into account.
For example, if a renewable developer wants to build a solar PV project on Bureau of Land Management (BLM) land, the developer must obtain a lease from the BLM. Because the BLM’s decision to approve the lease constitutes a federal undertaking, it must comply with the NHPA’s section 106 requirements. First, the BLM must consult with nearby and potentially interested tribes to identify any cultural resources in the area. Second, the BLM (again in consultation with the tribe) must determine whether the project will have any adverse effects on the cultural resource. Finally, BLM must “resolve” any adverse effects by signing a memorandum of agreement with tribes regarding project alternatives or modifications. 

During each of the three steps listed above, the BLM has final decision-making authority and it can ultimately decide to move forward with the project in spite of tribal objection. However, doing so would trigger additional procedures (for example, requesting a formal opinion from the Keeper of the National Register, or an opinion from the Advisory Council on Historic Preservation), which adds time. The procedure-oriented NHPA is thus aimed to facilitate agreement and ensure better decision making regarding impacts on cultural resources. 

The NHPA represents a framework by which tribes can voice and potentially address their concerns. Next week’s final post in this blog series will present examples to illustrate how the NHPA has worked in practice to protect tribal cultural resources.

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