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Law Article: BIA regulations to streamline energy development

"On February 15, 2011, the Department of the Interior, Bureau of Indian Affairs (BIA), proposed draft permitting and leasing regulations for wind and solar resources (WSR) intended to streamline federal approval for renewable energy development on tribal land.

For business, tax and legal reasons, most tribal renewable energy projects involve a tribe leasing land to a private company for the renewable energy development—and, as a matter of federal law, such leases must be reviewed and approved by the Department of Interior (DOI). The draft regulations would provide the first established procedures for obtaining federal approval specifically for WSR leases and permits. This is significant because there is a vast potential for renewable energy development on tribal lands but, despite considerable tribal interest, very few such projects have been developed so far. If and when finalized, the WSR regulations should help spur renewable energy development by streamlining the federal approval process for such projects on tribal land.

Unrealized Potential for Renewable Energy Development

Tribal lands have many inherent advantages for renewable energy development. Significantly, large swaths of land—more than 55 million acres in the lower 48 states—are owned by the federal government in trust for Native American tribes. Though it represents only 5% of the land area of the United States, Indian country contains 10% of all renewable energy resources. The National Renewable Energy Laboratory (NREL) estimates that there is the potential for approximately 535 billion kWh/year of wind energy alone on tribal land, equivalent to 14% of the United States' current annual energy generation. For solar resources, NREL estimates that tribal land has 17,600 kWh/year of solar energy potential in the lower 48 states, which is 4.5 times the current U.S. annual energy generation.

Given the vast potential for renewable energy development on tribal lands, many tribes are beginning to explore these opportunities. Some of this activity has been stimulated by the Department of Energy’s (DOE) tribal energy program, which funded 129 tribal energy projects between 2002 and 2010. However, the vast majority of such projects on tribal land are in the planning or feasibility stages, with only one commercial deployment as of August 2010."

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Federal regulations proposed to streamline renewable energy projects on tribal land (Lexology 3/21)
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