Clean Power Plan means opportunity for Indian Country

On Aug. 3, 2015, the United States Environmental Protection Agency (EPA) issued a final rule implementing the Clean Power Plan (CPP), the Obama administration’s signature initiative to combat climate change. The CPP provides guidelines for states to develop mandatory plans to reduce CO₂ emissions by approximately 32 percent by the year 2030 by (1) directly reducing CO₂ emissions from electrical generation units or EGUs (coal-fired power plants), (2) increasing the power generation load at existing EGUs fueled by natural gas, (3) reducing the use of electricity through energy efficiency programs, and (4) expanding clean renewable energy production.

The CPP will provide credits for electricity generated from renewables, as well as enhanced credits for energy efficiency projects in low-income communities. The CPP also will create enormous business opportunities for developers and manufacturers of renewable energy systems in Indian country. The CPP’s financial incentives promise to be an important aid to tribes seeking to convert to renewable energy and to tribal businesses focused on renewable energy and energy efficiency.

BIA argues against state taxation of activities on leased trust land

State and local governments have often sought to reach inside Indian country and impose taxes on properties or activities of non-Indians, impeding tribal economic development initiatives and tax options. When it published leasing regulations in December 2012, the BIA included a new provision, 25 C.F.R. § 162.017, that sought to deter these taxes by providing that, “subject only to applicable law,” permanent improvements, activities and possessory interests in leaseholds are not subject to any fee or tax imposed by a state or political subdivision of a state. In support of the rule, the BIA cited the federal interests in tribal economic development and the extensive role that the BIA plays in the leasing process under the Part 162 regulations.

By a notice published August 10, 2015, the BIA approved a leasing ordinance enacted by the Seminole Tribe under the Helping Expedite and Advance Responsible Tribal Homeownership (HEARTH) Act. Under the HEARTH act, tribes whose leasing ordinances have been approved by the BIA no longer need BIA approval for subsequent leases. In addition to providing notice of its approval of the Seminole ordinance, the BIA announced its position that the anti-tax provisions that protect leases approved under the Part 162 regulations should also apply to leases approved by tribes under HEARTH-compliant leasing ordinances. It is hoped that courts will defer to the BIA position on this issue.