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Suagee: Tribal sovereignty and the green energy revolution

On the first Earth Day of the Obama presidency, the White House blog declared that this Earth Day is significant in light of “the president’s goal to create a clean energy economy that can serve as a pillar of our recovery.” Noting that green jobs are a “central focus of the Recovery Act,” the blog proclaims that the president’s budget will “help ensure that new industries around energy efficiency and renewables will become part of the backbone of the American economy for decades to come.”

Renewable energy and energy efficiency will create millions of new jobs in the United States over the next decade. A report commissioned by the American Solar Energy Society projects that, with the right mix of governmental policies, we could have 37 million jobs in our national economy in energy efficiency and renewable energy by 2030. That would mean about one out of every five jobs in the American economy. That’s with an aggressive mix of governmental policies to support green energy development. In the base case, business as usual, the projected number of jobs in energy efficiency and renewables is 16 million by 2030. Not bad, but not nearly good enough.

We need to make sure Indian country and Native Alaska share in the jobs and business opportunities the green energy revolution will create.

There are several basic reasons the potential for green energy jobs is so great. Consider: Practically all the goods and services we buy have fossil fuel energy embedded in them somehow; the American economy has been driven by fossil fuels for more than a century, with a lot of waste and room for efficiency improvements; and renewable energy technologies have been making steady progress since the Carter Administration and many are ready for full-scale commercialization.

Also, the “smart grid” (integration of computerized information technology with electric power distribution) will make it easier to integrate distributed renewables into the power grid. Energy efficiency and renewables are more labor-intensive than fossil fuel energy and are less susceptible to out-sourcing, and the renewable resources are here in North America. Finally, there is the climate crisis, which is mostly caused by burning fossil fuels.

President Obama and Congress have taken some key steps to move us toward a real green energy revolution. The president’s appointments to cabinet positions demonstrate his commitment to dealing with the climate crisis through an emphasis on renewable energy and energy efficiency. This looks like the start of something really big.

If there is an upside to the climate crisis, this must be it. If we are going to have any hope of avoiding the more catastrophic impacts of global warming, we need to make a serious national commitment to efficiency and renewable energy, since the major cause of global warming is the buildup of carbon dioxide in the atmosphere as a result of burning fossil fuels.

We need to move toward a post-fossil fuels economy. National policy will be a driving force in making the green energy revolution happen, using a variety of governmental policy tools. At a macroeconomic level, federal policy will work to internalize some of the environmental costs of spewing carbon dioxide into the atmosphere, which will make the price of fossil fuels rise in comparison with efficiency and renewables. The leading candidate for a governmental mechanism for doing this is a “cap-and-trade” system. Cap-and-trade is a key feature of the Principles for Global Warming Legislation released by the Senate Committee on Environment and Public Works in January and in the discussion draft of the American Clean Energy and Security Act recently released by the House Energy and Commerce Committee.

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Even if we can assume that some version of cap-and-trade will be enacted, there also needs to be a range of other measures. Some will be driven by federal laws, and some will be carried out by states and local governments, generally within a framework of federal support. Whatever mechanisms are implemented, the shift to a green energy economy is going to happen, and the jobs and business opportunities in energy efficiency and renewables will be real. We need to make sure Indian country and Native Alaska share in the jobs and business opportunities the green energy revolution will create.

There are several basic reasons the potential for green energy jobs is so great.

There are major challenges, however, in claiming rightful places in the green energy revolution for tribes as governments. The various marketplaces in which energy resources are bought and sold have been shaped by more than a century of laws and regulations. Some aspects of our energy economy are shaped by federal laws and regulated by federal agencies. Some aspects are shaped or regulated at the state level, such as the electric utility industry.

While quite a number of tribes have been sources of fossil fuels for the national economy, as law-making sovereigns, tribes have not had much direct influence on the system of laws that regulate energy marketplaces. Given the Supreme Court’s hostility to tribal sovereignty over non-Indians and lands that are not held in trust status, tribes that want to exercise their sovereign powers in this subject face litigation risks.

Since the doctrinal underpinning of the court’s hostility is the notion called “implicit divestiture” – which holds that tribes can lose aspects of their inherent sovereignty by implication – Congress has the power to alleviate these litigation risks by enacting laws affirming tribal sovereignty.

In my view, such congressional action could help empower tribal governments as full partners in the evolution of the governmental agencies that provide, facilitate and regulate the goods and services of the green energy revolution.

Aside from issues relating to the inherent sovereign power to make laws and create governmental agencies, there is the matter of federal assistance programs for non-federal governmental entities. Over the last several decades, the federal government has created a number of assistance programs for states and local governments to promote energy efficiency. In creating such programs, Congress has frequently (but not always) overlooked tribal governments. Part two of this series will offer some comments on federal assistance to states and local governments and how tribal governments need to be part of that picture.

Fundamental changes are coming in the American energy economy, and we need to have some serious discussion of how tribes, as governments, fit into making these changes happen. These changes can yield a wide range of benefits, above and beyond avoiding catastrophic impacts of global warming. To a large extent, the marketplaces in which the various forms of energy are bought and sold will be shaped by governmental policies. The ways in which energy is embedded in the goods and services we buy will also reflect governmental policies. American Indian and Alaska Native tribal governments need to be sovereign partners in shaping the governmental policies that will make the green energy revolution happen.

Dean Suagee is an attorney of counsel to Hobbs, Straus, Dean & Walker, LLP, Washington, D.C., and is a citizen of the Cherokee Nation. E-mail him at