United States: Tribal Clean Energy Development: 2017 Changes And 2018 Opportunities

Last Updated: February 19 2018
Article by Pilar Thomas

2017 – The Year That Was

For a lot of reasons, many Indian tribes viewed the incoming Trump Administration with some degree of depredation. There were several reports about a desire to “privatize Indian lands” – which many tribes took to mean, taking their lands away and/or opening it up to resource extraction and exploitation by private industry. In addition, the President’s first budget request included substantial cuts in Indian programs, including at the Department of the Interior, Indian Health Services, Environmental Protection Agency, and the Department of Energy. Thankfully, none of these potential derailments of Indian Country progress have come to fruition. However, during 2017 there were several key sets of action – at the federal, state, local, and industry levels –that have, or will, directly impact Indian clean energy development opportunities. Some of these actions will benefit Indian tribes seeking to develop clean energy resources or becoming more energy self-sufficient. Other actions will likely be to tribes’ detriment. This article provides a brief summary of the most important actions from 2017 and some thoughts on key opportunities in 2018 for Indian tribes or others interested in clean energy issues.

Changes From the Federal Government

2017 brought a substantial amount of change from the new Trump Administration related to support for energy development and energy regulations. President Trump issued several new Executive Orders that began the “deregulatory” efforts to promote more fossil fuel energy development – especially on federal lands – to deemphasize climate change and conservation, and to reduce the regulatory burdens of energy development.

Presidential Executive Orders to Expedite Energy Development

Executive Order 13766 - On January 24, 2017, President Trump signed Executive Order 13766 “Expediting Environmental Reviews.” Under this Executive Order, the President stated that “it’s the policy of the executive branch to streamline and expedite, in a manner consistent with law, environmental reviews, and approvals for all infrastructure projects.” This order placed a specific focus on high priority infrastructure projects, including pipelines and improving the U.S. electric grid. The EO also created a mechanism for Governors (but not tribal leaders) to make a request to the Council on Environmental Quality (CEQ) to designate an infrastructure project as “high priority.” Once so designated, the CEQ and responsible federal agency are to establish expedited procedures and deadlines for completing environmental reviews and approvals.

Executive Order 13783 - Two months later, President Trump issued Executive Order 13783 “Promoting Energy Independence and Economic Growth.” This Executive Order seeks to promote the development of “affordable, reliable, safe, secure and clean” forms of energy – all energy, including renewable energy. To accomplish this goal, the EO requires all executive agencies to “immediately review existing regulations that potentially burden the development or use of domestically produced energy resources and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources . . . .” For purposes of the EO, burden means “to unnecessarily obstruct, delay, curtail, or otherwise impose significant costs on the siting, permitting, production, utilization, transmission, or delivery of energy resources.”

EO 13783 rescinded several previous presidential actions – Executive Orders and Presidential Memoranda – related to climate change, carbon pollution standards, and natural resource mitigation from energy development. The agencies, in turn, were to take action to suspend, revise or rescind any agency proposed rules, final rules, or guidance directly related to these presidential actions. More specifically, this EO orders the Environmental Protection Agency (EPA) to review the Clean Power Plan, and “if appropriate . . . as soon as practicable, suspend, revise and rescind” the final rules, proposed rules, and any guidance.

Lastly, more directly related to Indian energy development, EO 13783 instructs the EPA and the Department of the Interior (DOI) to review rules and guidance related to oil and gas development on federal and tribal lands. This includes rules related to hydraulic fracturing, methane waste and flaring, and royalty valuations. In furtherance of this, the DOI has repealed the hydraulic fracturing rule, postponed compliance with the methane flaring rule, and rescinded the royalty valuation rules.

Executive Order 13807 - The most recent Executive Order, issued on August 15, 2017, seeks to hold agencies more accountable for expediting infrastructure permitting and establishes a goal of permitting projects within two years, on average. Executive Order 13807, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure,” re-emphasizes the Administration’s policy to promote development of infrastructure in an environmentally sensitive manner, ensure federal decision-makers are informed about environmental impacts of projects, conduct environmental reviews in a coordinated, consistent and timely manner, ensure federal agencies speak with a coordinated voice, and make decisions within two years (measured from the publication date of the Notice of Intent to prepare an Environmental Impact Statement). This EO applies to energy generation, transmission and pipeline projects.

In addition to leveraging the Federal Permitting Improvement Steering Committee (FPISC) established under the FAST Act, EO 13807 creates a “One Federal Decision” process. Under this process, each major infrastructure project will have a lead agency responsible for coordinating all other federal agency actions. While this is already established under current National Environmental Policy Act (NEPA) regulations, the intent is to ensure that all agency decisions will be recorded together in one Record of Decision (ROD), unless certain circumstances exist. It also sets a deadline for final agency authorization within 90 days of NEPA completion and issuance of the ROD. The Office of Management and Budget (OMB) and Council on Environmental Quality (CEQ) are responsible for developing guidance to implement the One Federal Decision process, which will include provisions if a tribe, state, or local government agency is the lead agency for a federal project.

Finally, in July of 2017, the President announced the United States withdrawal from the Paris Climate Accord. While the greenhouse gas emission reduction targets in the Paris Accord are voluntary, several federal climate change initiatives were developed to support these emission reductions. Almost all of those initiatives have been reversed or are under review.

Department of the Interior (DOI) Actions

Immediately following on the heels of EO 13783, Secretary Zinke issued Secretarial Order 3349. In this Order, the Secretary revoked a previous Secretarial Order related to mitigation, and called for agency review of existing Department policies, guidance, and existing regulations related to mitigation and climate change. The Secretarial Order further ordered the review of “any other actions that impact energy development” and the bureaus and offices (including the BIA) were directed to report on “all existing Department Actions . . . that potentially burden the development or utilization of domestically produced energy resources with particular attention to oil, natural gas, coal and nuclear resources.” (Emphasis added.)

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