The Biden administration’s renewable energy agenda is being tested in court with a lawsuit from tribes opposed to a $4 billion development that runs through their homelands.

In a complaint filed in federal court last week, the San Carlos Apache Tribe and the Tohono O’odham Nation accused the Department of the Interior of failing to consult them about the SunZia Southwest Transmission Project, which bills itself as the largest clean energy infrastructure development in U.S. history. The tribes say concerns about sacred sites in the San Pedro Valley of southern Arizona have been ignored.

“For more than a decade, the San Carlos Apache Tribe and others have been raising alarms about the need to protect the cultural resources in the San Pedro Valley from the impacts of the SunZia project,” Chairman Terry Rambler said in a news release on Wednesday. “We join with the many other tribes whose sacred sites are endangered by this project in calling for a halt until our concerns are heard and addressed. We will keep fighting for a meaningful historic preservation process that actually addresses the concerns that so many have raised.”

According to Tohono O’odham Nation Chairman Verlon Jose, his tribe informed the Bureau of Land Management (BLM), an agency at Interior, and project developer Pattern Energy about cultural resources in the San Pedro Valley. He alleges the Biden administration is violating the National Historic Preservation Act (NHPA) by failing to protect sacred sites.

“The O’odham and our ancestors the Hohokam have deep cultural and historical connections to the San Pedro Valley, with many sites of great significance,” Jose said in the release. “We have made BLM and the Pattern Energy aware of this, but their disregard for the NHPA process has put these cultural sites in danger of irreparable harm. They must change course, immediately stop all ground clearing activity, and work with us to protect these sites as required by federal law.”

The SunZia Southwest Transmission Project will accelerate our nation’s transition to a clean energy economy by unlocking renewable resources, creating jobs, lowering costs, and boosting local economies. pic.twitter.com/AjuAjzgx3B

— Secretary Deb Haaland (@SecDebHaaland) September 1, 2023

The Department of the Interior is led by Secretary Deb Haaland, who is the first Native person to serve in a presidential cabinet. Last September, she participated in a groundbreaking at the portion of the SunZia project located in New Mexico, her home state.

And in November, only a month before the White House Tribal Nations Summit convened by President Joe Biden, she highlighted the development as one of 15 renewable energy projects being advanced in Western states.

“The Biden-Harris administration is committed to expanding clean energy development to address climate change, enhance America’s energy security and create good-paying union jobs. The projects we are advancing today will add enough clean energy to the grid to power millions of homes,” Haaland told a meeting of the Western Governors Association in Wyoming on November 6.

The leader of the BLM also weighed in. Director Tracy Stone-Manning said her agency is committed to permitting 25 gigawatts of solar, wind and geothermal production on public lands no later than 2025.

“Investing in clean and reliable renewable energy represents the BLM’s commitment to addressing climate change and supports direction from the President and Congress,” Stone-Manning said of the push from multiple sectors of the U.S. government.

According to Interior, the BLM has approved 46 clean energy projects since Biden took office in 2021. These developments are expected to generate up to 11,236 megawatts of electricity — meaning the overall goal of permitting 25 gigawatts would require even more approvals.

“I think, personally, that tribes are in favor of clean energy and wanting to do these projects that are light hand on the land and better for our environment,” Reno Keoni Franklin, the chairman of the Kashia Band of Pomo Indians, based in California, said on the Native America Calling radio show on Wednesday.

“But my stern warning to federal agencies has always been the same: Not on the backs of Indian tribes,” added Franklin, who also serves on the Advisory Council on Historic Preservation, an independent federal agency that was created by the NHPA.

Pattern Energy expects to generate up to 4,500 megawatts of electricity through SunZia Wind, which the developer describes as the largest wind project in the Western Hemisphere. The project is being built in three counties in central New Mexico, in an area not near any large population centers or tribal headquarters.

Instead, it’s a 520-mile transmission line across southern Arizona that’s drawing tribal concerns. According to the Tohono O’odham Nation and the San Carlos Apache Tribe, construction began last September — only for the BLM to order an “immediate temporary suspension” in early November after the tribes objected, their complaint reads.

But by the end of November, after the Hopi Tribe and the Pueblo of Zuni also objected to SunZia’s transmission line, the BLM allowed Pattern Energy to resume construction without addressing the impacts to historic properties and cultural resources in the San Pedro Valley, the complaint alleges. That’s why the Tohono O’odham Nation and the San Carlos Apache Tribe say they have been forced to go to court.

“Tribes are some of the leading supporters of alternative energy solutions,” O’odham Chairman Jose said on Wednesday. “However, there has been a pattern of bad faith going back many years. What else can you call the recent decision to halt construction to hold consultations, and then start up construction again? Consultations to protect sacred areas while construction is already ongoing, and the route for the transmission line is already selected and non-negotiable, shows clear bad faith on the part of the federal government.”

“At this point, it is clear that the only way to compel BLM and Pattern Energy to follow the law is through the courts,” San Carlos Apache Chairman Rambler added. “We must take this action so that all the impacted tribes can have our concerns heard, instead of falling on deaf ears.”

The Biden administration has not yet responded to the lawsuit, which has been assigned to Judge Jennifer Zipps, who was nominated to the federal bench by former president Barack Obama, a Democrat. But Pattern Energy is moving quickly — on Tuesday, the company filed a motion to intervene as a defendant in the case, pointing to the economic impacts of the massive project.

“This suit puts at risk a renewable power supply for up to three million people, fulfillment of state and federal renewable energy targets, approximately 2,000 construction jobs, and over three billion dollars of existing investments out of a planned $11 billion worth of transmission and wind energy projects,” the court filing stated.

Pattern Energy’s defense team boasts a heavy hitter in Hilary Tompkins, a citizen of the Navajo Nation who made history during the Obama administration as the first Native person to serve as Solicitor at the Department of the Interior, where she was in charge of the agency’s legal affairs. She now works at the Logan Hovells law firm in the nation’s capital and is the only Washington, D.C., based attorney on the developer’s motion to intervene.

According to Kevin Wentzel, the Pattern Energy executive who serves as the lead developer for the SunZia Transmission Line, the project will cost a total of $4 billion. In a declaration submitted in court on Tuesday, he said work in the San Pedro Valley “must be completed” between now and May in order for the project to remain on schedule to deliver power to markets in Arizona and California by 2026.

“This would delay commercial completion of the SunZia Transmission Line by up to one year, which would likely put its commercial viability at risk,” Wentzel stated in the sworn declaration.

Pattern Energy’s efforts have been touted by President Biden himself. During an appearance in New Mexico on August 9, he said the SunZia project fits in with his administration’s renewable energy agenda.

“You know, this company says the investing they’re making here is a direct result of the law we signed almost exactly a year ago — the most significant investment in clean energy and combatting the existential threat of climate change ever, anywhere in the world,” Biden said in Albuquerque, referring to a federal law known as the Inflation Reduction Act.

In addition to the Tohono O’odham Nation and the San Carlos Apache Tribe, non-profits Archaeology Southwest and the Center for Biological Diversity are plaintiffs in the lawsuit. The case is No. 4:24-cv-00034 in the U.S. District Court for the District of Arizona.

“The valley is replete with places that are significant in O’odham, Apache, Hopi, and Zuni culture and religion,” Stephen E. Nash, the president and chief executive officer of Archaeology Southwest, said in a news release of the area that’s home to the San Pedro River.

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