In this story,
Federal officials Thursday denied preliminary permits for multiple pumped storage hydroelectric projects proposed on the Navajo Nation that would have required vast sums of water from limited groundwater aquifers and the declining Colorado River, citing a lack of support from tribal communities.
In the order, the Federal Energy Regulatory Commission announced it was implementing a new policy requiring that any project proposed on all tribal land must gain the respective tribe’s consent to be approved, a move that local tribes, opposed to the proposed hydroelectric projects, had been calling for. The decisions pave the way for increased tribal sovereignty in energy-related projects seeking federal approval across the country.
“This is a federal commission acknowledging tribal sovereignty,” George Hardeen, a spokesman for the Navajo Nation president’s office, said. “If a company wants to do business on the Navajo Nation, it, of course, needs to talk to and get the approval of the Navajo Nation. And in the eyes of FERC, that has not yet happened.”
I notice the caveats “all Tribal land” so maybe not where projects are partially on Tribal land? It seems to me like Tribes should be able to approve any projects on Tribal land. Maybe some readers in the legal space can help clarify. And what energy projects does FERC regulate exactly? Transmission?
If energy policy were only linear and rational.. first we’d ask Tribes and locals and environmental organizations what kind of build out they want, and the impacts on critters, plants and water supplies, and then assess what energy sources and transmission would best avoid those areas and impacts. Seems like proposing a seemingly endless series random projects (some pumped hydro storage here, some geothermal there) and getting shut down project by project is not going to resolve the climate emergency anytime soon.
Anyway, the story is interesting and not paywalled so I recommend reading the whole ting. No paywalls seems to be the case for news funded by foundations because they want their version of the news to get out there. I’m just noticing a pattern here, as my media bills go up and my access to media goes down.
In the past FERC took the position that under the Federal Power Act it had the sole authority to award or deny a license for a hydro project on federal or tribal lands. The act, according to FERC, requires the commission to consider the comments from federal and tribal landowners, but does not require FERC to defer to those entities’ views.
FERC recently has adopted a more deferential approach to federal and tribal landowners, at least during the preliminary permit stage:
“In the past, we applied the general policy of granting permits even where issues were raised about potential project impacts without a distinction for projects on Tribal lands opposed by Tribes. As noted, we have recently revised this policy when permits have been opposed by federal land managers or similarly affected federal agencies. We believe that our trust responsibility to Tribes counsels a similar policy in cases involving Tribal lands and accordingly, we are establishing a new policy that the Commission will not issue preliminary permits for projects proposing to use Tribal lands if the Tribe on whose lands the project is to be located opposes the permit.”
https://www.grandcanyontrust.org/sites/default/files/maps/resources/BLACK-MESA-FERC-PermitDenied20240215-3064.PDF at pdf p.8 (footnotes omitted).
At least in the Black Mesa case, FERC criticized the applicant for (it appears) making virtually no effort to secure permission from the Navajo for use of the tribe’s land. So this case seems to have sad some bad facts for the applicant. And note that all these recent cases involve preliminary permits rather than final licensing decisions. As the FERC explanation above indicates, FERC used to consider this preliminary step as more of a box checking exercise than it does today.
Part of the reason Congress established FERC in the Federal Power Act of 1920 (then it was called the Federal Water Power Commission) was to facilitate hydro development that, some members of Congress believed, Interior and the Forest Service were obstructing. So FERC’s earlier bolshy reading of the Federal Power Act wasn’t absurd, although many Interior and Forest Service employees today believe that interpretation is woefully out of date. And, needless to say, in 1920 Indian tribes were probably at their political nadir in the US. The idea that the FPA even gave tribes a voice was pretty forward looking for that bleak period.
All these FERC denials are available via the Grand Canyon Trust here:
https://www.grandcanyontrust.org/ferc-permit-denials-hydropower-projects-tribal-lands
Thanks Rich!
I do recall some disagreements between FERC and Region 6.. and different agencies.. doing separate EIS’s maybe? It seemed like a major interagency disagreement.
“ As noted, we have recently revised this policy when permits have been opposed by federal land managers or similarly affected federal agencies.”
I wonder at what level (career/political) it matters that permits have been opposed. Because FS employees (among themselves) and with their politicals can disagree about things.
Also, is this just for hydropower, or the many other things FERC regulates?
In at least some cases the disagreements went to the political level in FS and Interior (in other words, senior leadership in the land management agencies backed the line folks against FERC). In some instances this culminated in the at least quasi-absurd circumstance of the federal government litigating against itself:
https://casetext.com/case/us-dept-of-interior-v-ferc
(Exactly *how* absurd one thinks this is may depend on one’s view of the unitary executive theory – a subject thankfully beyond the scope of this blog!)
As to whether this is a hydro-specific situation, good question, and I’m not sure since I’m unfamiliar FERC operations outside the hydro context. The statutory provisions we’ve been implicitly discussing here are hydro-specific, but I don’t know whether similar interagency strife can arise under FERC’s other authorities.
This is fascinating! And DOJ represented both sides? Thanks for this bit of history and possible future.
DOJ didn’t represent both sides in the DOI v. FERC case. DOI was represented by DOJ lawyers. FERC was represented by its own in-house solicitors.
The God Squad’s spotted owl administrative hearing posed an unusual challenge for government lawyers; one that they couldn’t resolve without one side resorting to outside counsel.
The formal adjudicatory hearing pitted BLM (the applicant for an ESA exemption) vs. the U.S. Fish and Wildlife Service (one of the ESA exemption gatekeepers). Both reside in the same department — Interior. Since this formal hearing was not in court, DOJ was not called upon to represent either party.
DOI’s solicitor’s office had to choose which agency to represent — it chose BLM, a political choice that represented Interior Secretary Lujan’s support for exempting BLM’s western Oregon logging from the ESA.
Since DOI’s solicitor’s office couldn’t represent both parties (doing so would make the process even more of a sham than it was — but that’s a story for another day), FWS hired a Portland law firm to represent it. Fun times!
Thanks, Andy. You should write a book…
28 U.S. Code § 516 – Conduct of litigation reserved to Department of Justice
Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General.
https://www.law.cornell.edu/uscode/text/28/part-II/chapter-31
I’m assuming this statute does not apply (or has been held not to apply) to administrative proceedings (as Andy’s God Squad story suggests) or independent commissions, such as FERC. But this is an assumption I’ve never had the misfortune to have to verify.
If two federal agencies (leaving the independent agencies aside) arrive at an intractable legal impasse, the Office of Legal Counsel within DOJ is responsible for refereeing the dispute.
https://www.justice.gov/olc
. so FERC acts like a federal agency (approves things, does EISs) but isn’t one legally?
Ha! It is an “independent agency,” which means it is in but not entirely of the executive branch. Independent agencies are (in very general terms) agencies over which the president has only limited power to remove their leaders. Usually these are commissions, like FERC or FCC or FTC. The idea behind their structure is to insulate their decisions to some extent from the vagaries of politics.
This is a real constitutional rabbit hole and a very complex area of the law. There are probably anywhere from 2 to 4 votes on the current Supreme Court for declaring such entities unconstitutional. But because this could wreak havoc with at least portions of the economy, they may yet survive.
I wonder whether the Security and Exchange Commission could be FOIAd as per NACs.