Tribal Renewable Energy Development Under the Hearth Act: An Independently Rational, But Collectively Deficient Option

42 Pages Posted: 5 Dec 2013

Multiple version iconThere are 2 versions of this paper

Date Written: December 3, 2013

Abstract

Increased domestic energy production is of enhanced importance to the United States. Given the growing focus on domestic energy development, many, including tribal governments, have increasingly looked to Indian country for potential energy development opportunities. Such attention is warranted, as abundant alternative and renewable energy sources exist within Indian country. Many tribes are increasingly exploring possible opportunities related to alternative and renewable energy development. Despite this interest, large alternative and renewable energy projects are virtually absent from Indian country. This article explores why, despite the great potential for alternative and renewable energy development in Indian country and strong tribal interest in such development, such little development is occurring.

Congress enacted the Helping Expedite and Advance Responsible Tribal Homeownership Act (HEARTH Act) in July 2012 to address one of the obstacles to alternative and renewable energy development in Indian country — federal approval for leases of tribal lands. In brief, the HEARTH Act allows tribes with tribal leasing provisions pre-approved by the Secretary of the Interior to lease tribal land without Secretarial approval required for each individual lease.

To fully understand the potential implications of the HEARTH Act, this Article explores obstacles to effective energy development in Indian country, what the HEARTH Act is and how it supposedly addresses those obstacles, and some significant problems associated with enactment of the HEARTH Act — specifically, the mandatory environmental review provisions and waiver of federal liability, and the impact of the liability waiver on the federal government’s trust responsibility to federally recognized tribes. The article ends with some concluding thoughts on how the HEARTH Act and potential future reforms to the existing federal regulatory scheme applicable to energy development in Indian country might better address tribal sovereignty and the federal trust responsibility to Indian country.

Keywords: HEARTH Act, Helping Expedite and Advance Responsible Tribal Homeownership Act, tribes, Indian, Native American, American Indian, energy

Suggested Citation

Kronk Warner, Elizabeth Ann, Tribal Renewable Energy Development Under the Hearth Act: An Independently Rational, But Collectively Deficient Option (December 3, 2013). Arizona Law Review, Vol. 55, No. 1031, 2013. Available at SSRN: https://ssrn.com/abstract=2363137

Elizabeth Ann Kronk Warner (Contact Author)

University of Kansas - School of Law ( email )

Green Hall
1535 W. 15th Street
Lawrence, KS 66045-7577
United States
785-864-1139 (Phone)

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