Abstract
Excerpted From: John Beaty, The Impact of the Inflation Reduction Act on Energy Justice and Green Energy Development in Indian Country, 12 LSU Journal of Energy Law & Resources 1 (Winter, 2024) (295 Footnotes) (Full Document)
In the next fifty years, climate change will fundamentally change our society. communities across the world are expected to bear the ravages of climate change. In the United States, AmericanIndian communities are likely to experience increases in severe weather events, droughts, and other negative climate change externalities. At the same time, AmericanIndian communities, especially in the Southwest, have some of the lowest electrification rates in the country. In response to these twin problems, many tribes have begun experimenting with creating tribal green energy projects to contribute to the transition to clean energy, sustain tribal consumption of electricity, and provide power to under-electrified regions of Indian Country. While these projects have attracted the interests of policymakers, barriers remain to project feasibility for many tribes. Tribes looking to enter the green energy marketplace face regulatory uncertainty, lack of necessary infrastructure, and problems securing outside financing. While Congress has tried several policy experiments to encourage the growth of tribal energy, most have been unsuccessful.
Congress recently returned to the policy goal of encouraging the growth of tribal green energy projects by allocating block grants and government loan guarantees in the recent omnibus spending bill, the Inflation Reduction Act (IRA). The IRA has already been heralded as a major driver of future tribal green energy projects. A closer examination reveals that the truth is a little more nuanced. While the money from the IRA will help tribes get projects off the ground, construct additional transmission infrastructure, and provide access to outside financing, it will not clarify the jurisdictional context for electrical regulation for tribal energy projects or give tribes the powers they need to site generation and transmission infrastructure. As a result, even with the welcome changes from the IRA, the unresolved issues may hobble tribal green energy development. Congress can address these outstanding problems by passing additional legislation to clarify the allocation of regulatory jurisdiction over tribal energy projects, preempt state jurisdiction over transmission siting, and grant tribes eminent domain power in connection with green energy projects. Even in the absence of federal action, states can resolve some of these unsettled issues through cooperation with the tribes. Finally, tribes can structure their projects to take advantage of the IRA funds and take proactive steps to avoid the pitfalls identified in this Article.
Part I will summarize the history and context of energy development in Indian Country from an energy justice perspective. Part II will summarize the litany of federal laws affecting tribal energy development. Part III will examine the jurisdictional puzzle for the regulation of utilities and siting of infrastructure within Indian Country. Part IV will discuss current barriers to tribal energy development, assess the impact of the IRA, and explain which problems the new money can solve and which it cannot. Part V will discuss potential paths forward for Congress, states, and tribes to encourage further development of tribal green energy resources.
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The IRA is a positive improvement for the development of tribal energy. The direct grants and full funding of the Loan Guarantee Program represent an improvement over the existing set of financial incentives. Congress also provided money for transmission, one of the most important physical barriers to renewable development in Indian country. However, there are still major unanswered questions about regulatory jurisdiction, siting, and eminent domain that could stymie the new developments. Thankfully, Congress, states, and tribes have ample opportunities to collaborate and use the new funding to trigger a renaissance for tribal energy and move from energy exploitation to energy justice.
J.D., The University of Iowa College of Law, 2023; B.A., Carleton College, 2019. John Beaty is a litigation associate at a large law firm in the Midwest where he works with energy industry and tribal clients.
