By Andrea Lang Clifford, Policy Analyst
In a lot of ways, tribes should embrace renewable energy both to combat the devastating effects of climate change and to boost tribal economies. Occasionally, however, renewable energy development raises concerns about preservation of important tribal cultural resources. Where such conflicts come up in the context of a federal agency decision (such as whether to grant a federal permit or lease federal land), agencies must comply with the National Historic Preservation Act (NHPA), which I explained in detail in the last post in this series. To review, the NHPA requires federal agencies to consult with interested parties–including tribes–regarding the effects of federally approved or developed projects on historic and cultural property. The final two posts of this blog series on “Tribes & Renewables” will explore two examples of how federal agencies have implemented the NHPA for proposed renewable energy projects. Today’s post explores tribal cultural resource protection issues that arose in the Cape Wind Project and explains how NHPA implementation for Cape Wind can serve as a lesson to federal agencies in the future.
The Cape Wind Project and the Wampanoag Tribe of Gay Head
The Cape Wind Project is a proposed offshore wind farm for the Nantucket Sound in Massachusetts. As proposed, the project would include 130 turbines over a 25-square mile area, with a total capacity of 468 MW. According to the Bureau of Ocean Energy Management (BOEM), the federal agency responsible for leasing and permitting the project, it would supply up to 75% of Cape Cod, Martha’s Vineyard, and Nantucket’s electricity.
Among the many groups that have opposed Cape Wind for the past 15 years is the Wampanoag Tribe of Gay Head. “Wampanoag” literally means “People of the First Light,” and part of the tribe’s religious practice involves a dawn ceremony with a view of the sunrise over the Sound. In addition, the area the Sound occupies used to be dry land, and the tribe believes that archeological remains are present in the bed of the Sound.
Because BOEM needed to issue a lease and federal permits for the project to move forward, the Cape Wind Project triggered the NHPA section 106 consultation requirements. As the last post in this series explained, that process requires federal agencies to consult with tribes to assess and resolve adverse effects of the project, although it does not direct the agency to protect cultural resources.
Unfortunately, in the case of the Cape Wind Project, BOEM simply waited too long to begin consulting with the Wampanoag Tribe about the effects of the project on the tribe’s cultural resources. The tribe was naturally concerned that the large number of 440 foot turbine blades would obstruct culturally significant views of the Sound and that construction of the project would disturb archeological remains in the bed of the Sound. However, BOEM did not begin the process of identifying and resolving these potentially adverse effects until seven years after the project had been proposed and after the details of the project had already essentially been decided. This delay meant BOEM could not consider alternative sites when it began consultation, and it resulted in BOEM recommending mitigation measures that included half-measures such as painting the turbines an off-white color to help them blend into the background, a solution completely untenable for the tribe.
According to the Advisory Council on Historic Preservation (Council), BOEM’s NHPA consultation on the Cape Wind Project was “tentative, inconsistent, and late,” and as a result, it did not adequately consider ways to mitigate the project’s effects. Importantly, the Council noted that “the development of renewable energy projects is not inherently incompatible with protection of historic resources, so long as full consideration is given to historic properties early in the identification of potential locations [and that] selection of nearby alternatives might result in far fewer adverse effects…” However, in the case of Cape Wind, BOEM did not actually give full consideration.
Cape Wind as a Lesson to Federal Agencies
While it is true that the NHPA is a purely procedural statute that does not mandate substantive protection for cultural resources, that does not mean that federal agencies should treat NHPA consultation as red tape. Consultation under the NHPA is meant to inform decision making, resulting in better substantive results through procedural means. If BOEM had consulted earlier in the Cape Wind project, as the Council recommended, it might have considered alternative nearby sites that would have addressed some of the Wampanoag Tribe’s concerns.
Besides Cape Wind-specific concerns, agencies should have an interest more generally in ensuring that tribes have a voice and a real seat at the table when it comes to consulting over cultural resource protection. Tribes may begin to view renewable energy projects more skeptically if agencies repeat the late and tentative consultation that occurred in the case of the Cape Wind Project. This would be an unfortunate result, given the amount of federal land in the United States that is rich in renewable energy resources and the likelihood that some of these future projects will raise cultural resource protection concerns.
To foster a positive relationship with tribes on future renewable energy projects as well as positive results in protecting cultural resources, federal agencies should learn from Cape Wind and ensure that consultation begins early and earnestly. The final post in this series will provide another example of NHPA implementation and suggest more ways federal agencies can ensure that renewable energy projects move forward with minimal conflict.