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Prior to the founding of Hobbs Straus, Jerry Straus was lead Washington, D.C. counsel in the first large scale case for the restoration of historic Indian land – the restoration of the 48,000 acre Blue Lake lands to the Taos Pueblo.

General Memorandum 15-035

General Memorandum 15-035
Tribal Energy Development Bill Approved by Senate Committee

In January of this year, Senator Barrasso (R-WY), Chairman of the Senate Committee on Indian Affairs (SCIA), introduced the "Indian Tribal Energy Development and Self-Determination Act Amendments of 2015" as S 209. This bill is similar to bills with the same title which were introduced in the 112th and 113th Congresses. See our General Memoranda 11-121 of Oct. 25, 2011 and 14-024 of March 21, 2014. On February 4, 2015, S 209 was reported out of the SCIA favorably without amendment.

Amendments to the 2005 Act. Title I of S 209 would amend the Indian Tribal Energy Development and Self-Determination Act ("the 2005 Act"), which was enacted as Title V of the Energy Policy Act of 2005, PL 109-58, most of which is codified at 25 U.S.C. §§ 3501-3506. In the 2005 Act, Congress authorized the tribal energy resource agreements (TERAs), a new mechanism for Indian tribes to develop energy resources on tribal lands. A tribe who enters into a TERA with the Secretary of the Interior can eliminate the requirement for the Secretary's designee (usually the Bureau of Indian Affairs) to approve leases, rights-of-way, and business agreements. Eliminating Secretarial approval renders inapplicable federal environmental laws that are triggered by federal action, such as the National Environmental Policy Act and National Historic Preservation Act.

The TERA mechanism has not been used. Like the bills introduced in the 112th and 113th Congresses, S 209 would make some changes intended to streamline the process for approval of such agreements. If the Secretary does not disapprove a TERA in 270 days, it would be deemed approved. If a tribe has carried out a Self-Determination contract or Self-Governance compact that includes programs for management of tribal land for three consecutive years without material audit exceptions, such a record would be sufficient to demonstrate capacity to regulate energy resources pursuant to a TERA. S 209 would also eliminate the requirement for Secretarial approval of leases, rights-of-way, and business agreements on tribal trust or restricted land when such transactions are between a tribe and a certified "Tribal Energy Development Organization" (TEDO). This would be a new option.

Section 101 includes several amendments to the 2005 Act, such as a mandate for the Department of the Interior to provide technical assistance to tribes to develop energy plans, which could include a wide range of activities. In the competitive grant program administered by the Department of Energy (DOE), section 101 would add tribal capacity building for managing energy development and energy efficiency as an authorized activity. (This is the only mention of energy efficiency in S 209.) Section 101 would also mandate DOE to promulgate regulations to implement the guaranteed loan program for tribes and TEDOs. Section 104 of S 209 is a mandate for DOE to collaborate with the National Laboratories and make the full array of DOE technical and scientific resources available for tribal energy activities.

Hydropower Licensing. Section 201 would amend the Federal Power Act (16 U.S.C. § 800(a)) to include Indian tribes in the preference that states and municipalities have for hydroelectric project licenses from the Federal Energy Regulatory Commission.

Biomass Demonstration Project. Section 202 would amend the Tribal Forest Protection Act of 2004 (PL 108-278, codified at 25 U.S.C. § 3115a) to establish a Tribal Biomass Demonstration Project "to promote biomass energy production (including biofuel, heat, and electricity generation) on Indian forest land and in nearby communities by providing reliable supplies of woody biomass from Federal land." The Forest Service and Bureau of Land Management could enter into agreements with tribes to carry out demonstration projects, in accordance with selection criteria set out in the bill. A separate subsection would authorize an Alaska Native Biomass Demonstration Project.

Weatherization Assistance Program. Section 203 of the bill would amend the Energy Conservation and Production Act of 1976 (42 U.S.C. § 6863(d)) to change the process through which tribes could seek direct funding from the DOE Weatherization Assistance Program. Tribes could receive direct funding on behalf of their low income members if DOE makes a determination that the services to be provided through the tribe would be equal to or better than services through the state. Currently, DOE must find that "the low-income members of an Indian tribe are not receiving benefits … equivalent to the assistance provided to other low-income persons in such State" (emphasis added).

Energy Efficiency. As noted above, S 209 includes only one reference to energy efficiency. In the version from the 113th Congress (S 2132), the SCIA added in markup section 106, which included extensive provisions on energy efficiency. Section 106 would have added a new section 367 to title III of the Energy Policy and Conservation Act of 1975 (42 U.S.C. § 6321 et seq). That Act is the authority for the State Energy Program, pursuant to which the DOE has provided assistance to State energy offices for energy efficiency and conservation programs over the past four decades. There never has been a corresponding federal assistance program for tribal governments. Section 106 of S 2132 would have established a 2.5 percent set-aside from funds appropriated for the State Energy Program for DOE to make grants to tribes for projects that "increase energy efficiency and conservation rather than new energy generation projects" and that "integrate cost-effective renewable energy with energy efficiency." The statement in the CONGRESSIONAL RECORD on introduction of S 209 does not explain why the energy efficiency provisions of S 2132 were not included in S 209.

In another legislative development concerning energy efficiency, on April 30, 2015, the President signed the Energy Efficiency Improvement Act of 2015. PL 114-11. This new law, sponsored by Senators Portman (R-OH) and Shaheen (D-NH), is a stripped-down version of a bill that had been introduced in the previous Congress. That earlier version, S 1392, would have amended the authorization for the DOE Building Energy Codes Program to expressly include tribes. 42 U.S.C. § 6832. The Building Energy Codes provisions were dropped in the current Congress. As enacted, PL 114-11 does not include any mention of tribes.

If you would like further information regarding S 209, please let us know.

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Inquiries may be directed to: Dean Suagee (dsuagee@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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