Elizabeth Ann Kronk
LAWRENCE — People of nearly all political persuasions agree the United States needs to do more to develop new energy resources. A provision of the Energy Policy Act of 2005 was specifically designed to encourage energy development on tribal land, yet not one tribe has entered an agreement to take on such development. A University of Kansas law professor has authored an article exploring the problems standing in the way of such energy development on native land and proposing two solutions.
Elizabeth Ann Kronk, associate professor of law and director of the Tribal Law & Government Center at KU, published the article in the Pace Environmental Law Review as part of a series exploring energy development on native land. Many tribes have expressed interest in developing energy, and the federal government has acted in part to help make it a reality.
"It's potentially a win-win situation," Kronk said. "It would spur economic development for tribes and help address the question of where we, as a country, are going to get our energy."
Kronk points out that there are several obstacles standing in the way of such development. The 2005 provision made it possible for tribes to enter into a Tribal Energy Resource Agreement, known as a TERA. The agreements offer incentives such as allowing the tribe to be responsible for managing energy development within its territory and avoiding certain federal approvals.
Kronk points out that there are several obstacles standing in the way of such development. For example, once a tribe enters into a TERA, federal liability is waived. Given federal obligations to tribes under the federal trust responsibility, a waiver of federal liability may not be attractive to many tribes. Furthermore, tribes may be uncomfortable with the mandated environmental law review required under TERA, as such federal mandates intrude on tribal sovereignty.
To address the fact that no tribes to date have entered into a TERA, Kronk recommends two solutions. The first would be to re-establish federal liability under TERAs. If the federal government is going to mandate environmental review and certain administrative functions, then it should maintain liability, which is consistent with the federal trust responsibility, Kronk said. Plus, many tribes may not be in a financial situation to take on major energy development projects themselves.
In the alternative, another option would be to remove all federal requirements of the tribes in TERAs. That would allow for true tribal sovereignty in energy development.
"Let's truly let the tribes be sovereign under this arrangement. Once you have a TERA set, let's let the tribes make the decisions," Kronk said.
There is widespread interest in developing energy resources on tribal land. Kronk points out that the Bureau of Indian Affairs has estimated that even though Indian land makes up only 5 percent of the United States, the territory contains 10 percent of the nation's energy resources. There are more than 560 federally recognized tribes, several of which have expressed interest in energy development, yet not one TERA has been initiated.
Congress could ensure TERAs are workable agreements for both the tribes and federal government, simply by addressing the liability question, Kronk said. In an upcoming article, she will analyze the HEARTH Act, recently enacted legislation that may address some of the problems inherent in TERAs.
"The TERA is hypothetically a good tool," Kronk said. "It's fascinating to me that despite interest from so many parties, tribes haven't been involved with them yet."