Senate approves bill to boost energy development on tribal lands

Thursday, April 21, 2016

The Senate approved the first major energy bill in nearly a decade on Wednesday and Indian Country stands to benefit from the comprehensive package.

S.2012, the Energy Policy Modernization Act, cleared the chamber by a bipartisan vote of 85 to 12. The bill includes all of the provisions of S.209, the Indian Tribal Energy Development and Self-Determination Act Amendments.

The Senate passed S.209 in December but putting it into the larger package gives it a much greater chance of becoming law before the end of the 114th Congress. The House already approved its own energy bill and key lawmakers in both chambers and from both parties are vowing to ensure success.

“The Senate passed legislation that will help foster economic development in tribal communities across the country,” Sen. John Barrasso (R-Wyoming), the chairman of the Senate Committee on Indian Affairs who helped secured inclusion of S.209 in S.2012, said in a press release. "Breaking down barriers to tribal energy development will help create good-paying jobs for tribal members. It will also contribute to the country’s energy security by developing more American-made energy. I urge the House to take up these energy measures to get them signed into law this year.”

Tribes with experience in the energy industry have endorsed S.209 as a way to reduce red tape at the Bureau of Indian Affairs. The bill aims to reduce delays associated with the approval of leases, business agreements, and rights-of-way in Indian Country.

Such delays can cost tribes a lot of money and time, according to the Government Accountability Office. The Southern Ute Tribe of Colorado, a major player in the energy industry, said it lost out on $95 million because it took the BIA eight years to review rights-of-way agreements for a natural gas pipeline.

Sen. Lisa Murkowski (R-Alaska), right, and Sen. Maria Cantwell (D-Washington), shepherded S.2012, the Energy Policy Modernization Act, through the Senate. Photo: Senate Energy and Natural Resources Committee

Additionally, S.209 and now, S.2012, updates a much-criticized provision of the Energy Policy Act of 2005. That law authorizes the BIA to approve tribal energy resource agreements, or TERAs, for tribes that develop their own energy development rules and regulations.

The concept is similar to the Helping Expedite and Advance Responsible Tribal Homeownership Act (HEARTH Act) in that a tribe isn't required to seek BIA approval for every single agreement once the over-arching TERA is approved.

However, no tribe has ever taken advantage of the 2005 law even though it was touted as a step toward greater self-determination during the Republican-controlled 109th Congress.

The Southern Utes are interested in TERAs but have voiced concerns that would be addressed by the enactment of S.209 or S.2012. One provision, for example, ensures that the tribe would not be shortchanged by the federal government for taking over some of the BIA's functions.

"One of the most significant changes would allow a tribe to receive funding equal to the amount the department spends to perform the same functions that a tribe would perform under TERA," the Office of Inspector General at the Department of the Interior wrote in February in describing the provisions of S.209. The report also said it was clear that the BIA lacked expertise in handling the Southern Ute Tribe's energy portfolio.

Beyond the inclusion of S.209, S.2012 contains provisions that benefit Alaska Native corporations. Under the bill, the corporations would be treated in a manner similar to tribes in the lower 48 when it comes to certain energy programs.

For example, Alaska Native corporations could secure a hydropower license much like Confederated Salish and Kootenai Tribes of Montana did in taking over operations of a dam within reservation boundaries. The corporations would also be able to apply directly for home weatherization assistance.

"We wrote a good bill in the energy committee last year that contained an array of provisions that Alaskans strongly support,” Sen. Lisa Murkowski (R-Alaska), who chairs the Senate Energy and Natural Resources Committee and also sits on the Senate Indian Affairs Committee, said in a press release. “Yet, we didn’t stop there. We kept working to make it even better."

In January, the White House Office of Management and Budget issued a statement of administration policy that took issue with a slew of provisions in S.2012 but otherwise did not express outright opposition to passage of the bill. That was in marked contrast to a veto threat issued against H.R.8, the North American Energy Security and Infrastructure Act, which passed the House in December.

The White House also slammed the H.R.538, the Native American Energy Act, in a rare rebuke of a stand-alone Indian piece of legislation. That measure passed the House by a lopsided party line vote in October after Democrats abandoned it.

To put together a final energy package, Murkowski and Sen. Maria Cantwell (D-Washington), the top Democrat on the Senate Energy and Natural Resources Committee, plan to work with the House on a joint conference committee.

"This bipartisan bill is an important next step for saving consumers money on energy costs, providing more options to power U.S. homes and businesses, and preparing the next generation of workers for jobs in clean energy.” Cantwell, who also sits on the Senate Indian Affairs Committee, said in a press release.

Office of Inspector General Report:
Bureau of Indian Affairs' Southern Ute Agency's Management of the Southern Ute Indian Tribe's Energy Resources (February 2016)

Government Accountability Office Report:
Indian Energy Development: Poor Management by BIA Has Hindered Energy Development on Indian Lands (June 2015)