Tribes & Renewables VII: Fostering Better Relationships Under the National Historic Preservation Act

By Andrea Lang Clifford, Policy Analyst

The last few posts on this blog series on Tribes & Renewables have explained the role of the National Historic Preservation Act (NHPA) in ensuring that federal agencies take into account the effects of federally approved renewable energy projects on tribal cultural resources. In particular, the last post in this series used the proposed Cape Wind Project on the Nantucket Sound in Massachusetts as an example of poor NHPA implementation, suggesting that federal agencies should include tribes in the decision process as early as possible so that their concerns can be better taken into account. While the NHPA does not require that federal agencies take action to protect cultural resources, it does require them to consult with tribes about the effects of their decisions on tribal cultural resources. This final post in the Tribes & Renewables series examines what federal agencies have done and can do in the future to improve tribal consultation and reach more informed decisions.

My blog post on the Cape Wind project highlighted the perils of poor consultation with tribes concerning renewable energy projects; making tribes feel as though they are a mere afterthought in such decisions may make tribes distrustful both of federal agencies and of renewable energy projects moving forward. Besides the straightforward recommendation that agencies should do a better job implementing the NHPA on a project-by-project basis, both tribes and federal agencies should also increase efforts to strengthen their relationships and build understanding outside the context of individual projects. 

For example, five years ago in 2011, the Advisory Council on Historic Preservation and the National Association of Tribal Historic Preservation Officers coordinated the “Tribal Summit on Renewable Energy:Protecting Tribal Cultural Resources.” Both federal agency and tribal representatives attended the event, where both sides spoke about their priorities, concerns, and thoughts on how future renewable energy projects should move forward. Such a collaborative effort, occurring outside the context of a specific project—where the stakes are often raised, particularly for tribes trying to protect a specific important cultural or sacred resource—is exactly the kind of event that may help tribal and agency representatives understand each other’s concerns and consult more meaningfully on future projects.

Participants at Forest Service Region 8’s 13^th annual

 “To Bridge a Gap” conference. Credit: U.S. Forest Service

Although no similar renewable energy development-focused summits have taken place, at least one of the Forest Service’s nine regions has taken steps to improve working relationships with tribes more broadly, and does so on an annual basis. Region 8 of the Forest Service, which manages all national forests in the Southeastern U.S., has for 15 years hosted its annual “To Bridge a Gap” conference  to help build positive working relationships with tribes. This kind of working relationship can help an agency, when faced with a decision, to understand which tribes might be interested and how their concerns might be addressed.

In trying to balance renewable energy development with protecting tribal cultural resources on federal land, consultation under the NHPA plays a key role. The purpose of the NHPA is to result in better decision making through procedural means; that is, consulting with tribes to understand concerns about protection of culturally significant resources allows agencies to come to more informed decisions about how, where, and whether to site renewable energy projects on federal land. However, that process only works where both sides have a positive working relationship. These two examples of summits and conferences are an excellent model for building those relationships. Hopefully, more federal agencies, tribes, or other interest groups will organize similar events in the future. 

Conclusion:

This blog series has covered a range of issues relating to tribes and renewable energy. As a starting point, it’s important to recognize that American Indian tribes face disproportionate and unique problems as the Earth’s climate warms (Part I). Fortunately,  developing renewable energy on tribal land not only helps combat climate change, but may also provide significant economic benefits for tribes (Part II) that can overcome some of the barriers to development on their land (Parts III & IV) . In terms of renewable energy development on federal land, tribes are often concerned that such projects may pose a risk to tribal cultural resources (Part V). Hopefully, as this post and Part VI covered, earnest consultation on individual projects and better working relationships between federal agencies and tribes can help renewable development occur in a way that does not compromise important tribal cultural resources.

Tribes & Renewables Part VI: The Cape Wind Project as a Lesson in Cultural Resource Protection

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. 

Credit: BOEM

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. 

Credit: PNNL

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.

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.