March 10, 2020

House Democratic Climate Proposals Series: Key Tribal Provisions

Holland & Knight Energy and Natural Resources Blog
Kayla Gebeck Carroll
Climate Blog Series Infographic

In an eight-part series, we will examine initiatives outlined in recent congressional Democratic climate proposals, particularly the Climate Leadership and Environmental Action for our Nation's (CLEAN) Future Act introduced by House Energy and Commerce Committee Democrats and the Moving Forward infrastructure framework developed collectively by House Democrats. General outlines of these frameworks can be found here and here.

Continuing our series, we're focusing on provisions that could impact tribes. Of specific interest to Indian Country, together the proposals provide increased funding for drinking water infrastructure, tribal roads, electricity infrastructure modernization, hydropower, renewable energy storage, energy efficient buildings and weatherization.  

Opportunities for Indian Country: Moving America and the Environment Forward

During the 116th congressional session, members of Congress engaged tribal leaders throughout Indian Country to better understand their transportation needs. On May 1, 2019, during the U.S. House Committee on Transportation and Infrastructure's Members' Day hearing, Rep. Peter DeFazio (D-Ore.), Rep. Gwen Moore (D-Wis.) and Rep. Deb Haaland (D-N.M.) advocated for the inclusion of provisions that address the backlog of Indian Country's infrastructure needs ranging from paved roads to Indian Health Service sanitation facilities, clean drinking water and waste disposal. Members also called for provisions that further improve the Tribal Transportation Self-Governance Program (TTSGP), which was created through the enactment of the Fixing America's Surface Transportation (FAST) Act (23 U.S. Code 201-202) and other opportunities to put tribes on par with states.

Two months later, the House Subcommittee for Indigenous Peoples of the United States held a hearing entitled, "Tribal Infrastructure: Roads, Bridges, and Buildings," where tribal leaders advocated for improvements to the Tribal Transportation Program (TTP), increased funding for the Bureau of Indian Affairs' (BIA) road maintenance program and inclusion of desperately needed funds for condemned BIA buildings.

On Feb. 6, the House Committee on Transportation and Infrastructure held a second hearing entitled, "Assessing the Transportation Needs of Tribes, Federal Land Management Agencies, and U.S. Territories," to better understand the needs of Indian Country. Tribal leaders requested that Congress establish a Department of Transportation (DOT) Office of Self-Governance, reduce the burden of grant requirements, address TTP funding formula issues that have resulted from changes to the program through the enactment of the FAST Act and Moving Ahead for Progress in the 21st Century (MAP-21) Act (Pub. L. 112-141), and increase funding for road maintenance to address 20-year-old backlogs.

Furthermore, the U.S. Commission on Civil Rights issued and presented to Congress a report entitled, "Broken Promises: Continuing Federal Funding Shortfall for Native Americans," (Broken Promises report), which highlights the realities that many homes in Indian Country face such as the lack of safe and adequate water, wastewater disposal facilities, storm infrastructure, roads and public transport.

A. Roads

Responding to these many unmet needs, the proposal sets aside funds for Indian Country when allocating more than $319 billion in highway investments nationwide, increases funding for TTP and allocates additional discretionary funding for projects on tribal lands. To support the issuance of these funds, the proposal also provides technical assistance to tribes. Together, these resources will help promote the economic health of tribal communities by investing in safe and well-maintained roads. However, while increased funding is important, the proposal does not address the inequities caused by the current TTP-funding formula, meaning that tribes in states like Minnesota and Alaska will continue to be left out of these meaningful funding increases. Furthermore, the proposal does not establish a DOT Office of Self-Governance to further support the TTSGP as requested by both tribal leaders and members of Congress.

B. Water Infrastructure

Additionally, the proposal recommends increasing funding for the Drinking Water State Revolving Fund, Indian Reservation Drinking Water Program, School and Child Care Program Lead Testing grants and Community Water System Risk and Resilience grants. The proposal also codifies the existing tribal set-asides for the distribution of Clean Water State Revolving Fund. These investments are critical to ensuring that tribal homes have access to safe drinking water and sanitation services.  

Opportunities for Indian Country: The CLEAN Future Act

In 2012, the U.S. Department of Energy (DOE) issued a report entitled, "Developing Clean Energy Projects on Tribal Lands," which found that while land owned by tribes comprises approximately two percent of the United States, this same land has the potential to produce five percent of the country's renewable energy sources. Despite this, Indian Country continues to lag behind the rest of the country in accessing, developing and transmitting efficient energy. The U.S. Commission of Civil Rights' Broken Promises report found that an estimated 14 percent of households in Indian Country do not have access to electricity, which is 10 times higher than the national average. Recognizing this reality, the CLEAN Future Act includes provisions related to tribal hydropower, energy and building efficiency, and weatherization.

A. Office of Indian Energy

Section 233 of the CLEAN Future Act reauthorizes the Office of Indian Energy at $30 million annually for fiscal years 2021-2030. Perhaps more importantly, the proposal authorizes the United States secretary of energy to reduce required cost-sharing for projects funded by the Office of Indian Energy and amends section 2601(2) of the Energy Policy Act of 1992 to ensure that land occupied by a majority of residents who are members of Alaskan Native tribes constitutes "Indian land" for all Office of Indian Energy programs. This is significant, as cost sharing and ambiguous language in previous funding opportunities imposed insurmountable barriers to many proposed projects on tribal lands, which required capital to which tribes have little to no access.

B. Hydropower

To support increased use of hydropower, Section 244 requires the Federal Energy Regulatory Commission and the secretary of the interior to issue guidance on best practices for engagement with Indian tribes in the hydropower licensing process and delegates authority to tribes to implement mandatory conditions to hydropower licenses that would otherwise be applied by the secretary. Such guidance will be helpful for tribes who have an interest in investing in or receiving hydropower allocations from federal projects or to develop hydropower projects of their own.

C. Electricity Infrastructure Modernization

To increase the reliability and efficiency of energy transmission, Section 231 of the bill directs the secretary of energy to establish a program to provide funding to tribal governments and other eligible partners for projects that improve resiliency, performance or efficiency of the electricity grid. This will be significant in areas such as the Southwest, where power plants are facing imminent closure given recent changes to cleaner energy resources in electricity markets nationwide.

D. Building Energy Efficiency

To increase the retention of energy in much-needed buildings such as schools, government buildings, hospitals and homes, Section 301 directs the secretary to support the adoption of building energy codes established by tribes and provides technical support as an incentive to encourage tribes to implement and comply with these codes. The section also requires the secretary to analyze and validate compliance for each tribe starting in 2024 and every three years thereafter. It remains to be seen whether such a promotion will work, as some tribal utilities operating on reservations rely on revenues from the measurement of their customers' electricity consumption. A reduction in such consumption would mean a loss of revenues to such tribal utilities, reducing the amount of capital they may need to build electrical infrastructure.

E. Weatherization

Section 311 directs the secretary to make annual awards through a competitive process to tribal governments and other eligible entities to make homes occupied by low-income tribal members more energy efficient. The maximum award amount under the program is $2 million. Tribes living in rural reservation environments where access to affordable and reliable energy results in disproportionately high electricity rates will greatly benefit from this investment.


Together, these proposals address some of Indian Country's most immediate needs, but it is a first of many steps required to promote economic development in our nation's tribal communities. For instance, the proposal calls for increasing funding for the TTP, but it does not address the inequities of the funding formula. Accordingly, it may not improve the chances that a proposed project on tribal lands will receive funding. Moreover, it does not advance tribal self-determination in infrastructure as requested by both tribal governments and members of Congress, nor does the proposal address the burdensome requirements that are required by existing grant programs. Many tribes find it challenging to attract reputable energy developers as partners to build proposed energy projects on tribal lands because of the lack of access to land equity, capital or tax incentives. Reducing the cost-sharing requirements of funding opportunities helps but is not sufficient. Funding opportunities need to provide a bridge for tribal governments to promote such projects for long-term economic sustainability. Tribal governments, organizations and advocates will need to continue meet with lawmakers to ensure these concerns are adequately addressed so that tribes are not left behind. 

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