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Cornell Debate 2011-2012 File Name

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Inherency

The Indian Tribal Energy Development and Self Determination Act, or ITESDA, would allow for tribal ownership and joint ventures of renewable projects, but the requirement that American Indians enter a Tribal Energy Resource Agreement, or TERA, with the Secretary of Interior precludes their development because of the high costs required


Royster, Co-Director, Native American Law Center, Tulsa, ’12

Judith V. Royster, Chapman Professor of Law and Co-Director, Native American Law Center, University of Tulsa College of Law, “Tribal Energy Development: Renewables and the Problem of the Current Statutory Structures,” Stanford Environmental Law Journal, 31 Stan. Envtl. L.J. 91 (March), pp. 117-120, Lexis [ACG CEDA]

IV. ITEDSA: The Solution That Isn't
Perhaps the solution is one nice neat statutory package that would authorize a tribe to develop any or all of its energy resources - without regard to whether those resources constitute "minerals" or not - using whatever type of development deal the tribe believes is best. And one exists. Under the Indian Tribal Energy Development and Self-Determination Act (ITEDSA) of 2005,122 tribes may enter into leases or agreements of any kind for the development of any energy resource. ITEDSA solves many of the problems noted here with the scattershot statutory approach.

First, it unambiguously applies to all energy resources. Although the statute does not contain a definition of energy resources, the implementing regulations define energy resources as "both renewable and nonrenewable energy sources, including, but not limited to, natural gas, oil, uranium, coal, nuclear, wind, solar, geothermal, biomass, and hydrological resources.”123 There is simply no question, as there is with the minerals statutes, that renewable energy sources are covered along with traditional energy minerals.

Second, ITEDSA normalizes the lease and agreement term. With the exception of oil and gas leases, which may be entered into for the standard ten years and so long thereafter as the oil or gas is produced in paying quantities,124 all leases and agreements run for a maximum of thirty years, with an option to renew at the discretion of the tribe.125 Having a single term applicable to all energy development eliminates the confusion of twenty-five years [117-118] for surface leases, ten years for agricultural leases, and five years to accomplish forest products harvesting. Moreover, the thirty-year term is sufficiently long, especially with a thirty-year renewal option, to justify the necessary investments by the non-Indian parties.

Third, ITEDSA adopts the best innovation of the 1982 IMDA: it opens up the tribal role beyond that of passive lessor or seller. Tribes are authorized to enter into leases or business agreements, without limitation on the kind or structure, "for the purpose of energy resource development on tribal land."126 Business agreements are broadly defined in the regulations as "any permit, contract, joint venture, option, or other agreement that furthers any activity related to locating, producing, transporting, or marketing energy resources on tribal land," and "any other business agreement entered into or subject to administration under a TERA [tribal energy resource agreement]."127 A tribe would thus be free, for example, to enter into a joint operating agreement for the construction and operation of solar collectors, something that is unavailable, or at best uncertain, under current statutory authority. The IMDA allows joint ventures, but its applicability to renewable energy resources is questionable: § 415 allows the placement of solar panels and collectors on tribal land, but it is restricted to leases only. ITEDSA eliminates the problems inherent in using these statutes for renewable energy production by authorizing non-lease arrangements for alternative energy production.

Fourth, ITEDSA goes a leap beyond most current statutes, and eliminates the cumbersome step of secretarial approval for every lease and business agreement. Under ITEDSA, tribes may enter into these instruments on their own authorization, without involving the Secretary of the Interior.128 This provision eliminates one of the drawbacks of the existing development statutes - mineral, surface, forest, and agricultural. As discussed earlier, those statutes generally require the approval of the Secretary of the Interior for each lease, agreement, or sale, with its attendant time delays and the possibility that the Secretary could deny development desired by the tribe.

ITEDSA thus presents a solution to the problems with other [118-119] development statutes discussed in Parts II and III. So what is the drawback? The drawback to ITEDSA is that an Indian tribe, to enter into energy leases and agreements without specific secretarial approval, must first enter into a tribal energy resource agreement (TERA) with the Secretary of the Interior.129 The development of a TERA requires a tribe to meet a number of statutory criteria, develop an extensive tribal environmental review process for each energy development project, and demonstrate to the Secretary that the tribe has "sufficient capacity to regulate the development" of its energy resources.130 At present, only a handful of tribes even potentially meets the last requirement. Although several tribes have expressed interest in developing a TERA,131 by mid-2011 no tribe had submitted a TERA application.132

This signifies that ITEDSA, designed as a solution, in fact is not one for the vast majority of tribes with energy resources. The front-end costs of time, money, and staffing to develop a TERA and shepherd it through the approval process are substantial, if not prohibitive.133 The back-end costs of providing an environmental review process and addressing public input into tribal decisions and compliance are similarly substantial. These costs mean that ITEDSA may ultimately be useful to only a small cadre of tribes with considerable energy resources to develop.134 For a tribe [119-120] seeking to place a few solar collectors on tribal land or harvest forest residues as biomass, however, the TERA process may be more of a barrier than an opportunity.135


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