Native American Energy Act

Floor Speech

Date: Oct. 8, 2015
Location: Washington, DC


Mr. GRIJALVA. Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, frankly, we are still not addressing the most pressing needs in Indian Country. Six years later, the Carcieri decision still has not been fixed, despite much lipservice that has been given to it from the majority.

Our colleague Mr. Cole and our colleague Ms. McCollum both have legislation, bipartisan legislation, that would deal with that immediately. We should call that up. We should have a hearing, and we should deal with this decision that has left so much doubt and confusion in Indian Country.

Sacred sites are in need of identification and protection rather than midnight riders attached to unrelated legislation that violates tribal sacred site protections, as has happened already. Lack of funding from this body coupled with sequestration has left Indian health and education really with no relief in site.

Yes, barriers to energy development on Indian land are among the most pressing needs, both as an economic driver for tribes and for the energy needs of the United States. But this bill does not address the real energy needs on tribal lands, and while we are wasting time on it, these other, and even more pressing needs, just continue to grow more urgent.

The legislation claims to facilitate energy development, but, instead, it short-circuits the review process set up by the National Environmental Policy Act, NEPA, and limits judicial review of development decisions. Instead of helping tribes develop energy resources on their lands, this approach will lead to less environmental protection on Indian lands and less judicial recourse to those affected.

These proposals are not new. We have seen and debated them before as part of the failed Republican energy bills last Congress, and here they are again. The legislation would amend NEPA, one of the Nation's bedrock environmental laws, to limit review of and comment on proposed projects to members of the affected Indian tribe and other individuals residing within an undetermined affected area. This limitation severely restricts public involvement in proposed Federal projects that may affect the environment, a central tenet of NEPA.

Arbitrarily limiting such review and comment would prevent even other Indian tribes with cultural ties in the so-called affected area from commenting on a proposed project. Limiting the universe of members of the public who can participate in the NEPA process but then failing to actually define that universe is not reform. It is not reform at all.

Additionally, this restriction is not just applicable to energy projects; it applies to any major project on Indian lands. This could mean proposed mining contracts, proposed water development projects, construction of solid waste facilities, and even construction of tribal class III gaming facilities all would slip through this undefined loophole. Nontribal partners would also reap this benefit as well, as long as the project is located on Indian lands.

The legislation also throws up insurmountable barriers to those seeking to hold the Federal Government accountable for its actions in court. It prevents the

recovery of attorney's fees in cases challenging energy projects, and it makes a claimant who fails to succeed on the merits of a suit potentially liable to the defendant for attorneys' fees and costs. This makes it extremely difficult, if not impossible, for members of the public--even tribal members whose homelands may be impacted by a major Federal action of any kind--to seek judicial review.

The other side will say this is in response to frivolous lawsuits that have been filed in these cases in the past, but according to the Department of the Interior Solicitor's Office, very few approved energy-related projects have ever been challenged in court. This is truly a solution in search of a problem. It is clear the real intent of this provision is to chill legitimate litigation and to undermine the real teeth of NEPA by making the availability of injunctive relief all but disappear.

Furthermore, this applies even to non-Indian land. If an energy company is developing natural resources anywhere in the United States and they get a tribal partner, they can fall under this provision. This could incentivize energy companies to partner with tribes simply for the benefit of skirting NEPA and profiting from restricted judicial review.

The legislation is opposed by the administration, as well as many environmental and conservation groups. I enter the following letter of opposition to this legislation into the Record, which has been signed by the Alaska Wilderness League, Center for Biological Diversity, Defenders of Wildlife, Earthjustice, Green Latinos, The Lands Council, League of Conservation Voters, National Parks Conservation Association, Natural Resources Defense Council, Northern Alaska Environmental Center, San Juan Citizens Alliance, Sierra Club, Western Environmental Law Center, and The Wilderness Society.


Mr. GRIJALVA. Mr. Chairman, instead of using energy development on Indian land as an excuse to weaken NEPA and judicial review, we should be concentrating our efforts on real reform that would achieve tribal self-determination and energy development. We should be dealing with the disparities in the Tax Code that stymie investments in Indian Country and create an unfair playing field. Tax credits and incentives for energy development that cities and communities have long used to their benefit, these need to be available to tribes as well. We should be encouraging investment in the future of renewable energy on tribal lands.

According to the Department of Energy Office of Indian Energy, Indian land contains an estimated 5 percent of all renewable energy resources, and the total energy potential from these resources is almost 14 percent of the total U.S. potential. In my home State of Arizona, there is a great potential for solar, wind, and geothermal energy on Indian land. We just need to fix the real issues that prohibit the investment in these projects.

But this bill doesn't do that. Instead, the majority is here today to once again attack NEPA and judicial review, this time attempting to use this as a wedge issue, attempting to drive a wedge between people that care about tribal self-determination as well as environmental stewardship.

Picking between tribal sovereignty and responsible energy development is a false choice. We can have both. We can have successful energy development in Indian Country while retaining the environmental protections that will ensure future generations of Native Americans that they, too, can enjoy the benefits of that economic development.

Mr. Chairman, I urge my colleagues to abandon this irresponsible proposal in favor of a real tribal energy bill. In the meantime, I would plead with my colleagues to bring legislation to the floor addressing Indian health care, Indian education programs, a codified process for tribal consultation with Federal agencies that respects sovereignty and upholds the trust responsibility that we have to Indian Country, and a fix--finally, a fix--for the current cloud hanging over the status of so many trust lands.

Mr. Chairman, I reserve the balance of my time.

Mr. GRIJALVA. Mr. Chairman, I yield myself such time as I may consume.

The GAO report has mentioned many times about the rationale behind and the catalyst behind this particular legislation; yet, the conclusion, which I agree with, is that we are not living up to our responsibilities as it applies to energy development on Indian land.

But reading the recommendations, nowhere does it say that the solution to the problem is to gut NEPA or to stifle judicial recourse. Instead, the recommendations talk about resources that are needed by Indian Country to successfully fulfill their obligations and responsibilities to their members. It talks about staffing shortages, outdated mapping systems, and the need to ensure that the BIA can provide support to the tribes on energy programs.

These are things the BIA has asked for in their budget and that the President's budget sent over has requested time and time again. Funding these requests go unheeded by this majority.

So it is disingenuous, as the majority does time and time again, to starve an agency or a program of needed funding and then to complain that that agency program is ineffective.

It is also disingenuous to say that the responsibility to work with and honor our trust responsibility to Indian Country is down to the choice in this legislation whether you vote ``yes'' or ``no.''

As I stated in my opening statement, there is a litany of pressing issues that face Indian Country and Native Americans in our Nation, a litany of benign neglect for many, many years, of which all bear responsibility.

But with that responsibility comes also the opportunity to act. The fix is necessary so that fact is quelled on a bad Supreme Court decision. We need the adequate funding so that the trust responsibility that we inherit as Members of Congress is upheld.

We need programs of infrastructure in Indian Country. We need many, many issues to address not only the human need, but the economic needs of Indian Country.

To say that this bill is the watershed moment that is going to turn all that benign neglect and irresponsibility backwards is disingenuous at best.

I would suggest let's talk about a real comprehensive approach to the issue of Indian Country and the support this Congress needs to give to our trust responsibility.

If we do that, I am sure all of us collectively can come to the same conclusion, that we need to do something and that there is before us legislation from both sides of the aisle that begin to address it.

This legislation is not it. It is not a panacea. And to pit the trust responsibility this Congress has and to question whether sovereignty is supported or not by Members that oppose this is not fair.

The fairness in this would have been an energy bill that is comprehensive. The fairness would have been not to gut NEPA, judicial review, and present a bill that is clean and upholds bedrock environmental laws and--and it is not complicated--uphold the trust responsibility that we have when we swear an oath of office to serve in this Congress.

I reserve the balance of my time.


Mr. GRIJALVA. Mr. Chair, I yield myself such time as I may consume. I just want to note that the Democrats on the Natural Resources Committee filed several amendments to this bill. We felt our Members were squarely within the House rules.

Sadly, the majority on Rules failed to make any of their amendments in order. One of these rejected amendments would have fixed the terrible mess created by the decision in Carcieri.

If you want to help tribes in a legitimate, coequal way control their own lands and move closer and closer to self-determination, you have to address this problem. It is telling that my friends on the other side have refused to even address the bill or to have a legitimate hearing on the bill.

Let me just in closing address the Statement of Administrative Policy.

While the administration supports the need to facilitate energy development in Indian Country, it does not support H.R. 538, the Native American Energy Act. This bill would undermine public participation and transparency of review of projects on Indian lands under the National Environmental Policy Act, set unrealistic deadlines, and remove oversight for appraisals of Indian lands or trust assets, and prohibit awards under the Equal Access to Justice Act or payment of fees or expenses to a plaintiff from the judgment fund in an energy-related action.

By foreclosing the judgment fund, this provision would negatively impact the Indian Affairs budget that is intended to serve all tribes. In addition, this bill's changes to mineral leasing loss applicable to Navajo Nations land may adversely affect energy development on these lands.

The bill also stipulates that Indian lands are exempt from the Department of the Interior's hydraulic fracking rule. That rule already contains the provision allowing for variances from the rules requirements when tribal laws meet or exceed the rule standards.

The rule approach both protects environmental and trust resources while also protecting decisionmaking of the tribes. Overall, H.R. 538 would not ensure diligent development of resources on Indian land.

The administration appreciates the committee's efforts to address energy needs in Indian Country. Income from energy development is one of the largest sources of revenue generated from trust lands, and delays in development translate to delays in profits to Indian mineral rights owners.

The administration has been taking meaningful action to update the leasing process for lands held in trust for Indian tribes and is actively working to expedite appraisals, leasing, and permitting on Indian lands, and to provide resources to ensure safe and responsible development.

The administration looks forward to working with Congress to develop the reforms necessary to support this development.

The point is that this legislation is a rush to judgment. It is a gift, in a sense, when you exempt from the judicial review and from NEPA the exploration and production of energy on Indian land. As coequals, these environmental protections and public processes are intended for all.

So rather than be patronizing, as coequals and within our trust responsibility, this bill should be rejected. We should work on comprehensive energy opportunity legislation that truly recognizes self-determination for all members of tribes, provided the environmental, public health, and judicial processes would guarantee them that they would be treated equal under the law.

I yield back the balance of my time.