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Hobbs Straus attorneys successfully obtained the first Interior Board of Contract Appeals ruling entitling a tribal school to 100% of administrative cost grant funding in Alamo Navajo School Board and Miccosukee Corporation v. BIA, IBCA 3463-3466, IBCA 3560-3562 (Dec. 4, 1997).

General Memorandum 16-041

General Memorandum 16-041
Energy Bills Face Uncertain Prospects in Conference Committee

Congress may be on the verge of passing a broad-scope federal energy policy bill. The Senate and the House have each passed an energy bill denominated S 2012, but the House version is quite different from the Senate version. Whether the differences can be reconciled into a version of the bill that could be passed by both the Senate and the House is an open question. Each of these bills contains broad, national provisions (some of which may have tribal implications), and each bill also includes certain provisions that are specific to tribes. Tribes may want to weigh in with their congressional delegations regarding the next steps for this legislation.

Senate Bill Status. The Senate passed its energy policy bill, S 2012, the "Energy Policy Modernization Act of 2016," on April 20, 2016, with bipartisan support. Title VI of this bill contains the text of the Indian Tribal Energy Development and Self-Determination Act Amendments of 2015, a bill introduced as S 209 in January 2015 by Senator Barrasso (R-WY), Chairman of the Senate Committee on Indian Affairs (SCIA). See our General Memorandum 15-035 (May 11, 2015). Prior to its incorporation into S 2012, the Senate had already passed S 209 as a stand-alone bill. Cong. Rec. S8617 (Dec. 10, 2015).

House Bill Status. The House passed its energy policy bill, HR 8, the "North American Energy Security and Infrastructure Act," on December 3, 2015, by a mostly party-line vote. On October 8, 2015, the House passed HR 538, the "Native American Energy Act," sponsored by Representative Young (R-AK), Chairman of the House Natural Resources Subcommittee on Indian, Insular and Alaska Native Affairs. See our General Memorandum 15-068 (September 16, 2015). HR 8 as passed in December 2015 included a number of tribal-specific provisions, but it did not incorporate the text of HR 538.

On May 25, 2016, the House took up the Senate's bill, struck out all of the language and then inserted the text of HR 8, along with text from a number of other House bills. Cong. Rec. H3117-3198. This House-passed bill is denominated S 2012, although it is very different from the Senate-passed bill. It was during this process that Chairman Young's Native American Energy Act was included as title IV of division C of the House-passed version of S 2012.

Having taken this action, the House has started the process for the House and Senate to convene a conference committee to fashion a compromise bill that would be sent back to each chamber for a vote. Senate Democrats, however, are opposed to going to conference because, while S 2012 received bipartisan support, HR 8 is considered a partisan bill which could not be passed by the Senate and which includes provisions that the President has threatened to veto. Below we discuss some provisions of potential interest to tribes in each of these bills.

Senate Bill. As passed by the Senate, S 2012, is 798 pages, divided into ten titles. The text of the bill can be found at: https://www.congress.gov/bill/114th-congress/senate-bill/2012/text/es?q=.... As noted earlier, the SCIA bill is incorporated as title VI. It 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. The 2005 Act authorized tribal energy resource agreements (TERAs), a new mechanism intended to allow for expedited development of energy resources on tribal lands by eliminating the requirement for the Secretary of the Interior (typically acting through the Bureau of Indian Affairs) to approve leases, rights-of-way, and business agreements. The TERA mechanism, however, has not yet been used, and section 6013 of the Senate-passed version of S 2012 would make changes intended to streamline the process for approval of such agreements.

Other provisions of the SCIA bill that are incorporated into title VI of the Senate-passed S 2012 include amendment of: 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; the Tribal Forest Protection Act of 2004 (25 U.S.C. § 3115a) to establish a Tribal Biomass Demonstration Project; and 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 Department of Energy's (DOE) Weatherization Assistance Program.

Aside from title VI, several of the other titles of the Senate-passed S 2012 include specific references to tribes. A prominent example is section 1001, "Greater energy efficiency in building codes," in title I – Efficiency. This section would amend the statutory authorization for the DOE's Building Energy Codes Program to expressly include tribes in a manner comparable to states. 42 U.S.C. § 6833. Originally authorized in 1992, this federal assistance program helps states and local governments periodically upgrade the energy efficiency standards in their building codes for residential and commercial buildings. This section also includes a mandate for the Secretary of Energy to help the organizations that develop model energy codes to develop model codes for adoption by tribes in accordance with tribal law.

Other provisions in the Senate-passed S 2012 that specifically refer to tribes are in title II – Infrastructure, (several sections in subtitle D, "Electricity and Energy Storage"); title III – Supply (a few references, including section 3012, "Geothermal exploration test projects"; section 3304, "Resource assessment" for critical minerals; section 3601, "21st Century Energy Workforce Advisory Board"; section 3602, "Energy workforce pilot grant program"); title IV – Accountability (section 4102, "Smart energy and water efficiency pilot program"; section 4401, "Federal land management"); title VII – Brownfields Reauthorization (section 7007, "Small community technical assistance grants"); title X – Natural Resources (section 10253, "National fish habitat conservation").

While nominally an energy policy bill, the Senate-passed version also includes numerous provisions that have little connection with energy policy. For example, section 5002 would amend the authorization for the Land and Water Conservation Fund (54 U.S.C. § 200302) to make it permanent. Section 5003 would make a similar amendment in the authorization for the Historic Preservation Fund (54 U.S.C. § 303102).

House Bill. As passed by the House, S 2012 is 792 pages, divided into 4 "Divisions." As noted earlier, the House struck the entire Senate bill and substituted its own text, including changing the short title of the bill to the "North American Energy Security and Infrastructure Act of 2016." Division A, "North American Energy Security and Infrastructure," includes nine titles; Division B, "Resilient Federal Forests," also includes nine titles; Division C, "Natural Resources," includes 26 titles; and Division D, "Science," includes four titles (designated V, VI, VII, and XXXIII). The text of the House-passed version is available at: https://www.congress.gov/bill/114th-congress/senate-bill/2012/text/eah?q....

As noted earlier, Chairman Young's Native American Energy Act is included as title IV of division C of the House-passed version of S 2012. It is very different from Chairman Barrasso's bill which is incorporated into the Senate-passed version of S 2012. For example, it does not address TERAs. What it would do is: reform the process for appraisals of land or trust assets for transactions that require the approval of the Secretary of the Interior; make a major change in the National Environmental Policy Act (NEPA) as it applies to transactions relating to Indian trust or restricted land; establish limits on judicial review of any "energy related action"; authorize a Tribal Biomass Demonstration Project; authorize the Navajo Nation to enter into certain categories of leases, including mineral extraction leases, without approval by the Secretary; declare that any activity conducted pursuant to a tribal resource management plan or integrated resource management plan approved by the Secretary of the Interior would be a sustainable management practice; and prohibit the Department of the Interior from regulating hydraulic fracturing on Indian trust or restricted lands, except with consent of the Indian beneficiary.

The change in the NEPA process that the bill would bring about is that, for any proposed federal action that requires the preparation of an environmental impact statement (EIS), the distribution of the EIS for review and comment would be limited to members of the tribe, "other individuals residing in the affected area, and State, federally recognized tribal, and local governments within the affected area." The text providing for the inclusion of the listed governmental entities was added in a floor amendment. Cong. Rec. H6917 (Oct. 8, 2015).

Aside from Native American Energy Act, several other provisions of the House-passed S 2012 include specific references to tribes. In Division A, title I – Modernizing and Protecting Infrastructure – includes numerous provisions relating to the Federal Energy Regulatory Commission, some of which mention tribes, for example, section 1203, "Hydropower licensing and process improvements," which addresses environmental review. Also in Division A, section 3141, "Greater energy efficiency in building codes," would amend the statutory authorization for the Department of Energy's Building Energy Codes Program to expressly include tribes in a manner comparable to states. The text of this section is similar, but not identical, to section 1001 of the Senate-passed version of S 2012.

In Division B, title VII – Tribal Forestry Participation and Protection – section 701, "Protection of tribal forest assets through use of stewardship end result contracting and other authorities," would amend the Tribal Forest Protection Act of 2004 (TFPA) (25 U.S.C. § 3115a) by establishing timeframes for the Secretary of Agriculture (with respect to the Forest Service) or the Interior (with respect to the Bureau of Land Management) to respond to a request from a tribe to enter into an agreement or contract to carry out a project to protect Indian forest land or rangeland (including a project to restore Federal land that borders on or is adjacent to Indian forest land or rangeland). Section 702, would amend the National Indian Forest Resources Management Act (25 U.S.C. § 3104) to authorize the Secretary of Agriculture or Interior to treat federal forest land as Indian forest land in certain circumstances. Section 703 would authorize both Secretaries to carry out demonstration projects under the TFPA through contracts pursuant to the Indian Self-Determination and Education Assistance Act.

As previously noted, in Division C – Natural Resources – title IV is the Native American Energy Act. A number of other provisions in Division C mention tribes, including section 902, "Declaration of a major disaster for wildfire on Federal lands"; section 1032, "Operational flexibility in times of drought"; section 1094, "Bureau [of Reclamation] responsibilities" for water supply permitting; section 1105, "Project acceleration"; section 2051, "Wildlife and Hunting Heritage Area Conservation Advisory Council"; and section 2111, "Respect for treaties and rights."

Division D – Science – does not include any references to tribes.

Please let us know if you would like further information about either of these bills or would like assistance with sending comments to your congressional delegation.

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Inquiries may be directed to:
Dean Suagee (dsuagee@hobbsstraus.com) or
Moriah O'Brien (mobrien@hobbsstraus.com)

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


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