New federal policy gives Native American tribes power to veto green energy development

Federal regulators quietly implemented a new policy enabling Native American tribes to effectively veto certain green energy development projects on their land.

The Federal Energy Regulatory Commission (FERC) issued an order rejecting three large hydroelectric pump storage projects — which generate dispatchable utility-scale power by transporting water back-and-forth between two man-made reservoirs, one elevated and the other lower — in northeastern Arizona on Navajo Nation land. The order further establishes the policy impacting future projects on tribal lands. 

That policy replaces FERC's previous policy of allowing developers to proceed with hydro projects regardless of a tribe's opposition. The developer of the three pump storage projects submitted applications with FERC in 2021, requesting permits to build the projects in Black Mesa, a mesa on Navajo lands ideal for such energy development, but they received opposition from tribal and environmental groups.

"Navajo Nation President Buu Nygren said the recent FERC decision is both an acknowledgment and recognition of tribal sovereignty," Navajo spokesperson George Hardeen told Fox News Digital. "He appreciates that FERC would wait to grant preliminary permits for energy projects on Navajo land until appropriate consultation with tribal divisions and departments is completed."

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Federal Energy Regulatory Commission Chairman Willie Phillips, who President Biden selected for the position, waits to testify during a Senate Energy and Natural Resources Committee hearing in March 2022. (Bill Clark/CQ-Roll Call, Inc via Getty Images)

"In the past, companies could promise economic development, job growth and similar benefits to local Navajo communities to garner support," Hardeen added. "But important considerations like adverse impacts on the Nation's natural and cultural resources were an afterthought. The Navajo Nation seems to have influenced changes in FERC’s permit application process."

Early last year, the Center for Biological Diversity, Diné Citizens Against Ruining our Environment and Tó Nizhóní ?ní, a Diné-led environmental nonprofit, filed motions urging FERC to reject the Black Mesa project's permits. Other environmental groups, such as Grand Canyon Trust and several Navajo chapters and agencies, joined in opposition to the projects months later.

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Those groups applauded FERC's rejection of the projects and subsequent new policy empowering tribes to veto such developments in the future.

"Federal officials are absolutely right to require developers to consult with and gain the support of Tribes before issuing permits for projects on Tribal lands," said Taylor McKinnon, the Southwest director at the Center for Biological Diversity. "The demise of these disastrous proposals is a huge win for the people, plants and animals of Black Mesa, and a victory for environmental justice."

A hydroelectric dam is pictured in Washington state. While hydropower produces a large share of the nation's green energy, environmentalists have broadly opposed it over its impacts on wildlife and water resources. (Photo by: Marli Miller/UCG/Universal Images Group via Getty Images)

The National Hydropower Association (NHA) acknowledged it appreciates "the spirit of FERC’s new policy," noting it has engaged with Native American tribes. However, the group expressed concern about how FERC's actions may negatively impact future hydro development.

According to NHA, the new policy specifically concerns preliminary permits, which are required to begin the long process of studying a site and engaging with local stakeholders.

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"We are concerned that FERC’s new policy could be counter-productive and undermine the Federal Power Act’s existing engagement process," NHA President and CEO Malcolm Woolf said. "A preliminary permit merely authorizes the licensee to study the site and start the community engagement process."

A school bus travels on the Navajo reservation on April 27, 2020. The Federal Energy Regulatory Commission rejected several proposed hydropower projects on the largest Native American reservation in the U.S. The commission has also created a policy that essentially gives tribes veto power over such projects early on. (AP Photo/Carolyn Kaster, File)

"By denying permits at the very beginning of the licensing process (which typically takes 5+ years), FERC is short-circuiting the very structure envisioned under the Federal Power Act for engagement with tribes, agencies, and other stakeholders," Woolf added. "FERC’s new policy would not achieve the intended results that we all hope to secure — which is creating a clean energy future that powers our nation, respects our environment, and preserves important cultural legacies."

Overall, hydropower supplies nearly 80,000 megawatts of the nation's power, or 6% of total U.S. utility-scale electricity and 29% of total utility-scale renewable electricity, according to federal data. 

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Additionally, the U.S. has more than 23,000 megawatts of pumped storage, which operates like a battery, deploying electricity in times of reduced power supplies and could, advocates argue, be key to supplementing intermittent green energy sources such as solar and wind. The Black Mesa projects would have had a total capacity of 6,000 megawatts, increasing the nation's pump storage capacity by 26%.