A Tribe Called Red Tape: The BIA’s Costly Energy Permitting Process

A 2015 GAO report lambasted the Bureau of Indian Affairs for its slow, opaque review of energy project proposals. (Flickr/Creative Commons by Bureau of Land Management Wyoming, https://tinyurl.com/y7wcrv6x, no photo adaptations)

“All the things of the Earth and in the sky

Have energy to be exploited

Even themselves, mining their spirits into souls sold

Until nothing is sacred, not even their self”

—ALie Nation by A Tribe Called Red

As reservation poverty rates and unemployment remain among the highest in the nation, tribes sit on an estimated $1.5 trillion in untapped oil, natural gas, coal, and other valuable minerals. Billions of megawatts in solar and wind energy potential lie dormant as well.

Bureaucratic roadblocks are keeping resources in the ground and windmills and solar panels from reaching toward the sky, restricting tribal officials from pursuing viable energy projects and providing important relief to ailing reservation communities. Recent changes in leadership at the federal government may open up these vast reserves, but not every tribe is keen to accelerate development at the expense of their long-term land health.

Late last year, newly-elected President Donald Trump held a meeting with prominent tribal officials regarding energy development. When the officials expressed concern that regulatory burdens limited their ability to extract natural resources, Trump allegedly responded with:

“What are they going to do? Once you get it out of the ground are they going to make you put it back in there? I mean, once it’s out of the ground it can’t go back in there. You’ve just got to do it. I’m telling you, chief, you’ve just got to do it.”

Considering the President and his party control both houses of Congress, the executive branch, and a majority of the justices on the Supreme Court, one can only ponder the “they” that Trump felt might stand in the way of America’s energy independence and resource development on tribal lands.

Trump’s cabinet officials have pushed other policies as well that could potentially ease regulatory burdens for tribal energy projects. At the National Tribal Energy Summit last year, Secretary of the Interior Ryan Zinke advocated for an “off ramp” that would allow tribes to remove lands from trust and create corporations similar to the model currently in place for Alaska Natives.

But how would privatizing land help tribes hurry along energy projects? A short review of the modern regulatory framework surrounding natural resource development provides the answer.

The Soboba Band of Luiseño Indians’ 1-megawatt solar photovoltaic system (Soboba)

In 2015, the U.S. Government Accountability Office (GAO), the non-partisan auditing arm of the legislative branch, issued a report on the barriers to tribal energy development. The report lambasted the Bureau of Indian Affairs (BIA) for its slow, opaque review of energy project proposals. In one instance, it took the BIA more than 8 years to review a proposal and caused the tribe to miss out on an estimated $95 million in revenue.

The practical effect of the BIA’s bureaucratic snail pace has seen energy developers look outside Indian Country for opportunities. While a typical energy project permitting process on private lands includes around 6 steps, a proposal on tribal lands would need to complete as many as 50 steps.

With a process almost 10 times longer, it is no surprise that the current Administration recommends tribes privatize land to expedite energy projects. In the past 3 years, GAO has issued 3 reports with 14 recommendations to the BIA to aide tribal energy development. Not a single recommendation has been completed.

Trust land privatization is not the first alternative put forth by the federal government to circumvent its own bureaucratic quick sand. More than a decade ago, the federal government created the Tribal Energy Resource Agreement (TERA), an energy project and infrastructure pre-approval process that transfers project approval to tribal officials. Once a TERA is in place, the approval process is reduced down to a more manageable 9 steps.

The TERA approval process essentially shifts much of the project approval timeline to a general assessment that tribes can then rely on for future projects. The Department of the Interior (DOI) received only 20 comments on the TERA proposal, but those comments raised extensive concerns related to the burdens of meeting the TERA guidelines.

The GAO report identified 3 main issues with TERA: uncertainty about TERA regulations, limited tribal capacity to assume costs and activities currently provided by the federal government, and a complex application process.

The Office of Indian Energy and Economic Development (IEED) was allocated millions of dollars to distribute to tribes to help navigate the TERA process. GAO found that IEED provided $2 million over 29 grants to 25 tribes from 2007-2013. There is no data on whether the grants helped.

To date, not a single tribe has completed the TERA process. DOI has a working group that meets regularly to help refine TERA guidelines in hope that a tribe will engage the process. There is a bipartisan bill in Congress currently being considered that would expedite TERAs and provide more support to tribes engaged in the process.

In 2016 alone, oil revenues on tribal lands nearly topped $400 million. With more than a trillion dollars of potential in the ground, the wind, and sun, tribes should have the option of participating in the energy economy free from bureaucratic roadblocks not present on non-tribal lands. As to whether a tribe should consider land privatization, a TERA, or no development at all rests on the shoulders of the community and the best path toward social and economic prosperity for generations to come.