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Pending federal energy legislation will impact tribal energy resource development

Pending federal energy legislation will impact tribal energy resource development

Over the last several weeks, Congress has been working on three major bills related to energy and tax incentives that will have implications for energy development on tribal lands. On July 22, Senator Lisa Murkowski (R-AK), Chair of the Senate Energy and Natural Resource Committee, introduced the “Energy Policy Modernization Act of 2015”  Also on July 22, the House Energy and Commerce Committee’s Subcommittee on Energy and Power voted to advance its version of a comprehensive energy bill.  Finally, the Senate Finance Committee passed a bill on July 21 to extend certain expired tax provisions, which includes several provisions related to taxes in Indian Country, as well as energy tax credits.

Energy Policy Modernization Act of 2015 (Senate)

Senator Murkowski’s bi-partisan bill is the most comprehensive legislation introduced since 2007.  The bill covers several areas of energy policy, including energy efficiency, workforce development, infrastructure development, energy supply, and accountability.  During the week of July 27, the Committee marked up the bill, eventually adopting 35 amendments. Overall, Senator Murkowski’s bill is very inclusive of tribes and tribal entities.  Virtually every new program provision specifically includes tribes, Alaska Native villages and corporations, and tribal colleges and universities.  Key new programs include:

  • Sec. 1001 Building energy code development and technical assistance. To promote energy efficiency in buildings, these provisions authorize the Secretary of Energy to provide technical assistance to tribes to develop building energy codes.  In addition, tribes are incentivized to adopt such building codes through both an incentive program and a certification program administered by the Department of Energy
  • Sec. 1003 Coordination of energy efficiency retrofitting for schools.  DOE is directed to support the dissemination of information on existing federal programs that can be accessed for energy efficiency upgrades on BIE, tribally controlled schools, tribal colleges and universities.
  • Sec. 1004. Non-profit energy efficiency retrofits.  Establishes a pilot program to provide grants for energy efficiency retrofits in non-profit buildings, which would include tribal and Alaska Native regional non-profits.
  • Sec 1007.  Building training and assessment centers.  Creates a grant program to establish building training and assessment centers, and tribal colleges and universities are eligible to apply.
  • Sec. 2304 Hybrid micro-grid systems.  This provision creates a requirement for the Secretary to develop a program to promote hybrid microgrid deployment in remote and isolated communities.  This will necessarily benefit very rural, remote tribal communities and Alaska Native villages.
  • Sec. 3304. Critical mineral resource assessment.  Requires assessment of critical mineral, and provides technical assistance to tribes for critical mineral assessment.
  • Sec. 3601-3602 Workforce Development.  These provisions create a new advisory board within the Department of Energy which focuses on supporting and developing a skilled energy workforce.  Specific provisions include creating workforce development priorities for under-served communities, including tribal communities, supporting national laboratory outreach to minority and tribal communities, and establishing a competitive grant program to support workforce development
  • Sec.4102. Smart Energy and water efficiency. Establishes a pilot program that provides grants to demonstrate innovative technology solutions that increase energy efficiency of water systems and improve water-energy conservation.  Factors to consider include ability to deploy in tribal communities.  Tribes are eligible to apply for these grants.
  • Sec. 4402 Quadrennial Energy Review.  Codifies the DOE Quadrennial Energy Review, and requires the Secretary to obtain tribal input on future QERs.

While the committee adopted an amendment to extend the authorization for the DOE Office of Indian Energy programs until 2021, unfortunately there is no Indian energy title in Senator Murkowski’s bill.  Surprisingly, Senator Murkowski’s bill does not include any provisions from Senator John Barrasso’s Indian energy bill (S. 209).

Even though the legislation specifically incorporates tribes throughout most of the provisions, there are still several sections that do not treat tribes equally with states and local governments.  Tribes, for example, are not included in a public housing pilot project to promote energy efficiency and water conservation in multi-family housing (Sec. 1002).  Neither are tribes or tribally designated housing entities included in a new Weatherization Assistance Program competitive grant program for energy efficiency retro-fits in low-income households (Sec. 1012).  Furthermore, tribes are not considered in the bill’s support for regional distribution and energy assurance planning (Sec. 2307).  In addition, Sec. 4403 authorizes the BLM, at the request of a Governor, to enter into an MOU with the requesting state to consider the costs and benefits of uniform oil and gas regulations across federal lands.  Yet, tribes are not included in this provision either.

One additional provision – adopted through an amendment at markup – may be of interest to tribes with coal resources: establishment of a coal technology program within the Department of Energy to support research and development, large-scale pilot projects and demonstration projects for new coal technologies.

With almost 200 bills pending in the Senate related to energy, there will likely be further proposed amendments to Senator Murkowski’s bill when the bill comes to the Senate floor for a vote.

House Energy Committee:
While covering several of the same subject areas as the SENR bill – infrastructure, workforce development, energy security, energy efficiency and accountability – the House bill is not as ‎comprehensive as the Senate bill, and there is little overlap between the two.  Unlike the SENR bill, there are very few provisions that specifically include tribes.  In addition, the House bill does not include any Indian energy legislation proposed by Rep. Don Young.   The bill will next go to the full Energy and Commerce Committee for a vote before it goes to the House floor.

Senate Finance Committee:
The Finance Committee marked up the Expired Tax Extenders bill on July 21.  Of most relevance to Indian Country, the bill extends – until 2016 – the Indian Employment Tax Credit, the Accelerated Depreciation for business property in Indian Country, and the Indian Coal Production Tax Credit.  Energy or energy related tax provisions extended include the new market tax credit, the production tax credit (wind, biomass, hydro, geothermal), and the tax credit for implementing energy efficiency on commercial buildings.  The energy efficiency tax credit, Sec. 179D, has also been extended and amended to include tribes; the same as other governments.  Almost all of these tax provision have been extended by 2 years – to the end of 2016.

While it remains to be seen how these three bills will fare in making it to a vote – not to mention passage in the other chamber – there is still time for tribes, Alaska Native villages and corporations, and other tribal entities to weigh in on these three pieces of legislation.

By Pilar Thomas of Lewis Roca Rothgerber

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