Suagee: Tribal sovereignty and the green energy revolution

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A green energy revolution is beginning to happen in America. If President Obama and the Democratic leadership in Congress are successful in enacting legislation to address the climate crisis, the progress of the green energy revolution will pick up speed (depending, of course, on the details).

In part one, I said we need to have some serious discussion of appropriate roles of American Indian and Alaska Native tribal governments as sovereign partners in shaping the governmental policies that will make the green energy revolution happen.

In addition to issues relating to the power of tribes to make laws, there is also the matter of federal assistance programs for non-federal governmental entities. Over the last several decades, the federal government has created assistance programs for states and local governments to promote energy efficiency, and tribal governments have often been overlooked. Not always. For example, the Energy Independence and Security Act of 2007 authorized a new Energy Efficiency and Conservation Block Grant Program for states and tribes, with a two percent set-aside for tribes, and this program has actually been funded in the American Recovery and Reinvestment Act of 2009. That’s $56 million for tribes. There are many other provisions of the Recovery Act that tribes can use for energy efficiency and renewables, but the act also pours a lot of funding into programs for states and local governments for which tribes are not explicitly eligible. For some programs, tribes are eligible, but it will take some work to actually get a share of the funding. I wonder how much of the $5 billion appropriated for the weatherization program is going to reach Indian country.

The pattern of providing federal assistance to state and local governments without working through the implications for Indian country may play out again in climate change-energy policy legislation under consideration in the current session of Congress. In January, the Senate Committee on Environment and Public Works released a set of “Principles for Global Warming Legislation.” The release prompted a group of dedicated people convened by the National Congress of American Indians to develop a set of “Tribal Principles for Climate Legislation,” endorsed by NCAI and the National Tribal Environmental Council, Native American Rights Fund and National Wildlife Federation.

The tribal principles begin with the proposition that Indian tribes “must be sovereign partners in assessing and addressing the problem of climate change at the national and international level.” The second principle is, “tribes shall be provided equitable access to the same financial and technical resources provided to states and local governments.”

On March 30, the House Energy and Commerce Committee released a discussion draft of the American Clean Energy and Security Act (Waxman-Markey discussion draft), a 648-page bill. In this column I offer comments on just two sections, both dealing with energy efficiency in buildings.

More than 40 percent of greenhouse gas emissions in America are associated with energy consumption in buildings, and given the large unmet need for decent homes in much of Indian country, one might think the federal government would have a strong interest in helping tribal housing programs build energy efficient homes, which would be more affordable for Indian families to heat and cool.

The Energy Independence and Security Act of 2007 requires that most federally subsidized new housing conform to the standards in the 2006 version of the International Energy Conservation Code, but this requirement does not apply to federally-subsidized Indian housing funded pursuant to the Native American Housing and Self-Determination Act.

Since the Energy Policy Act of 1992, the Department of Energy has provided assistance to states and local governments to ratchet up the energy efficiency standards in building codes, but this assistance program has never been available to tribal governments. Section 201 of the Waxman-Markey discussion draft would update that “national model building code” and put America on a path to making net-zero-energy buildings the standard practice. Section 201 of the discussion draft doesn’t mention tribal governments.

What about retrofitting existing buildings for energy efficiency? Section 202 of the discussion draft would create a program to address this need, the “Retrofit for Energy and Environmental Performance” program, including an assistance program for states, the State Energy and Environment Development Fund. This would be administered through the State Energy Offices under DOE’s State Energy Program. Section 202 of the discussion draft doesn’t mention tribal governments.

The DOE State Energy Program was created in 1975, at the dawn of the Self-Determination era of federal Indian policy, and it is not surprising that Congress didn’t think about Indian country then. But we are now well into the fourth decade of the Indian Self-Determination era. The Recovery Act appropriated $3.1 billion for the State Energy Program. The discussion draft would expand the mission of the State Energy Program and authorize additional appropriations. If Congress is going to create a program to help states retrofit existing buildings, why not a comparable federal assistance program to retrofit existing buildings in Indian country?

What should such a program look like and how much federal funding would be needed? These are questions we should be talking about. While we are talking about them, I think the federal government should be funding the creation of a network of regional assistance programs, designed in consultation with tribal governments, inter-tribal organizations, and tribal colleges, with engagement of all the relevant federal agencies and with input from the State Energy Program offices. I suggest we figure out what will work best by getting some models for assistance programs up and running.

As a practical matter, the cheapest and easiest ways to reduce greenhouse gas emissions are to make energy efficiency improvements in buildings. Indian country needs its fair share of those improvements.

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 dsuagee@hsdwdc.com.