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South Dakota Searchlight
Native American voices are finally factoring into energy projects
By Emily Benton Hite,
2024-04-21
Opponents of the Dakota Access Pipeline gather Nov. 1, 2023, in Bismarck ahead of a public meeting on an environmental impact statement. (Kyle Martin/For the North Dakota Monitor)
The U.S. has a long record of extracting resources on Native lands and ignoring tribal opposition, but a decision by federal energy regulators to deny permits for seven proposed hydropower projects suggests that tide may be turning.
As the U.S. shifts from fossil fuels to clean energy, developers are looking for sites to generate electricity from renewable sources. But in an unexpected move, the Federal Energy Regulatory Commission denied permits on Feb. 15, 2024, for seven proposed hydropower projects in Arizona and New Mexico.
The reason: These projects were located within the Navajo Nation and were proposed without first consulting with the tribe. FERC said it was “ establishing a new policy that the Commission will not issue preliminary permits for projects proposing to use Tribal lands if the Tribe on whose lands the project is to be located opposes the permit.”
We are a cultural anthropologist and a water resource geographer who have studied tensions between Indigenous rights, climate governance and water management in the U.S. and globally for over 20 years. In our view, the commission’s decision could mark a historic turning point for government-to-government relations between the U.S. government and tribal nations.
How might this new approach shape future energy development on tribal lands throughout the U.S.? Given the federal government’s long history of exploiting Native American resources without tribal consent, we’re following FERC’s actions for further evidence before assuming that a new era has begun.
Extraction on tribal lands
Around the world, many Indigenous communities argue that their lands have been treated as sacrifice zones for development . This includes the U.S., where the federal government holds 56.2 million acres in trust for various tribes and individuals, mostly in western states.
The trust responsibility requires the U.S. government to protect Indigenous lands, resources and rights and to respect tribal sovereignty. Consulting with tribes about decisions that affect them is fundamental to this relationship.
The seven permits FERC denied in February 2024 were requested by private companies seeking to build pumped hydropower storage projects . These systems pump water uphill to a reservoir for storage. When power is needed, water is released to flow downhill through turbines, generating electricity as it returns to a lower reservoir or river.
Withdrawing water for hydropower could disrupt rivers and sacred sites that are culturally and spiritually important for many tribes. These projects also threaten water security – a critical issue in arid western states.
Colorado River water is already over-allocated among western states, which hold legal rights to withdraw more water than is in the river. As a result, many pumped storage projects would require groundwater to fill their reservoirs. The proposed Big Canyon project in Arizona , for example, would require up to 19 billion gallons of groundwater, taken from aquifers that support local springs and streams.
The Federal Energy Regulatory Commission is an independent agency that licenses and oversees interstate transmission of electricity, natural gas and oil; natural gas pipelines and terminals; and hydropower projects. Under a 1986 law , the agency is required to consider factors including environmental quality, biodiversity, recreational activities and tribal input in making licensing decisions.
In 2000, President Bill Clinton issued Executive Order 13175 , directing federal agencies to engage in “regular and meaningful consultation and collaboration with tribal officials” in developing federal policies that affect tribes. Each agency interprets how to do this.
Tribes have called FERC’s record of consultation with Native Americans “ abysmal .” Recently, however, the agency has started to make its operations more inclusive.
In canceling the projects in February, FERC cited concerns raised by the Navajo Nation , including negative impacts on water, cultural and natural resources and biological diversity. It also stated that “To avoid permit denials, potential applicants should work closely with Tribal stakeholders prior to filing applications to ensure that Tribes are fully informed about proposed projects on their lands and to determine whether they are willing to consider the project development.”
Aligning clean energy and environmental justice
Many more energy projects are proposed or envisioned on or near tribal lands, including a dozen pumped storage hydropower projects on the Colorado Plateau. All 12 are opposed by tribes based on lack of consultation and because tribes are still fighting to secure their own legal access to water in this contested basin under the 1922 Colorado River Compact.
We recently analyzed FERC’s handling of the Big Canyon pumped hydropower storage project , which would be located on Navajo land in Arizona, and concluded that the agency had not adequately consulted with the tribe in its preliminary permitting. In the wake of its February ruling, the agency reopened the public comment period on Big Canyon for an additional 30 days, with a decision likely later in 2024.
The Biden administration has set ambitious targets for halting climate change and accelerating the shift to clean energy while promoting environmental justice . In our view, meeting those goals will require the federal government to more earnestly and consistently live up to its trust responsibilities.
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