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House bill would make it costly for plaintiffs to sue to block energy projects on tribal lands

The Native American Energy Act, HR 3973, has been approved by the House Natural Resources Committee. The bill, which seeks to remove “bureaucratic obstacles” to energy production on tribal lands, would also severely impede residents, environmentalists or even neighboring tribes who file lawsuits to stop tribal energy projects.

The bill would require plaintiffs who succeed in getting a preliminary injunction or administrative stay to halt tribal energy projects to post a bond and further, subjects plaintiffs to liability for harm to the defendant if the defendant ultimately prevails. The bill would also ban plaintiffs in energy-related actions against the federal government from receiving certain federal payments for their fees or expenses.

The combined impact of this could have a chilling effect on plaintiffs current rights to seek redress in court for harmful impacts of energy projects on tribal lands to neighboring communities, such as negative health impacts, noise, or pollution.

That’s a key concern in San Diego County, which has 19 Native American reservations—more than any county in America. In East County, the Campo Indian tribe seeks to triple the size of its wind energy facility. Members of the neighboring Manzanita tribe are alleging health impacts from existing turbines on Campo tribal lands. Residents on non-tribal lands adjacent to the proposed expansion area have voiced concerns over potential impacts on their communities. Some other tribes are considering energy development, including additional wind turbines.

“We would lose a lot of rights. That’s incredibly biased—wow,” said Donna Tisdale, chair of the Boulevard Planning Commission and a plaintiff in several lawsuits seeking to halt industrial-scale energy projects in the backcountry. “It raises some very serious complications for people defending themselves.”

Right now four Indian energy projects are proposed in the Boulevard area on tribal lands, she noted. “People assume that green energy projects are clean, but some have serious adverse health effects that are equal if not more problematic than a gas-fired or coal-fired power plant health-wise.”

The Shu’luuk Wind project proposed by the Campo Indians includes two third parties, SDG&E and Invenergy. “Currently under federal law if there is a third party involved in an Indian reservation then they have to go through the process,” said Tisdale. “I don’t know if this will affect that or not.”

In addition to the legal hurdles it seeks to impose, HR 3973 would also deny the public the right to access environmental impact statements for projects on Indian lands; if passed the bill would restrict such access only to the affected Indian tribe and individuals residing within the affected area. Thus organizations such as environmental or wildlife protection groups would no longer have access to key information on tribal energy projects’ impacts.

There are many other provisions in the bill that could impact the rights of tribe and the public, as well as open up tribal forest lands for biomass energy production demonstration projects. The bill covers not only renewable energy projects, but conventional energy development such as oil drilling as well.

HR 3973 is one of two Republican sponsored bills aimed at streamlining “duplicative and unnecessary bureaucratic obstacles to onshore American energy and mineral production while encouraging job creation,” according to a press released issued by the House Natural Resources Committee.

The other, HR 4402, the National Strategic and Critical Minerals Production Act of 2012, would deem a mine providing critical minerals to be an infrastructure project” under a presidential order for improving permitting and review of infrastructure projects. It would further set forth responsibilities of lead agencies for issuing mineral exploration or mining permits, among other things.

For details, see the House Natural Resource Committee’s press release, the GovTrack analysis of HR 3973 and HR 4402.