Tribes Do Not Need a Greenlight to Build Renewable Energy

Renewable energy is an internal Tribal matter and exercise of sovereignty, not up for approval from rural electric cooperatives.

Written by: Catherine Zingg – TEA Tribal Policy Director

In May, at a Tribal clean energy conference, I listened as a member of the Upper Sioux Indian Community expressed frustration with their rural electric cooperative. The Tribe had invested in a 2.5-megawatt solar project to offset the energy demand of their casino—yet the panels sat idle, waiting for permission to turn on. Furthermore, when the Tribe moved to turn on the panels without the blessing of Minnesota Valley Cooperative Light & Power, they received notice that power would be shut-off to their casino. And this story has been heard before. Across Indian Country, Tribes have built behind-the-meter solar and other distributed energy resources, only to run into the same barrier: rural electric cooperatives whose outdated policies slow, discourage, and prevent Tribal ownership of renewable energy. Local ownership over energy assets remains stagnant in rural and Tribal communities; this status quo maintained by rural electric cooperatives allows them to ultimately decide who can or cannot build solar.

This dynamic is what was challenged by Upper Sioux Indian Community in their complaint filed at the Minnesota Public Utilities Commission earlier this year. In asserting their right to energize their own behind-the-meter project, the Tribe reminded both the state and their service provider that renewable energy development on Tribal lands is fundamentally an internal matter of Tribal sovereignty. And as the pressure grows for all communities to make future energy decisions, this case makes clear that Public Utilities Commissions (PUCs) and cooperatives must reform their policies so they do not impose control over Tribal decisions but ensure they do not stand in the way.

So let’s begin by looking at the role of Public Utility Commissions.

Public Utilities Commissions go by different names across the country, but their role remains largely the same: they oversee the regulatory system that governs electricity. They set electricity rates, approve rate increases, protect customers from the monopolistic shaping of utility companies, and approve the future road maps for a state’s electricity plan. The main mandate is to keep energy affordable and reliable. The balancing act that commissioners must play between various stakeholders is not an easy task. Mediating among utility companies, rural electric cooperatives, consumer advocacy groups, and environmental justice groups, commissioners must prioritize low rates, generally consider environmental impacts, and deliver decisions that fit within the financial planning and priorities of the companies that keep the lights on.

But one group consistently remains outside of that balancing act—Tribal Nations. Despite state energy decisions affecting Tribal communities every day, they are rarely included in PUC processes. While Minnesota has a Tribal relations statute meant to encourage engagement with the Tribes in the state, its statutory limits make it unenforceable to the state and its agencies.
The lack of teeth in the policy makes it impossible to compel any agency to follow the statute. If this statute is breached, there is no standard of conduct to create a remedy. An expression of values is not enough for Tribes.

A part of this problem is structural. PUCs cling to tradition. They favor making energy decisions based on easily quantifiable financial benefit and feasibility. Commissioners generally struggle to make decisions on environmental impacts and on distributive equity. It is rare to see a PUC with a policy mandate addressing climate change. I have been in PUC hearings where Tribal members describe long-term harm from utility decisions within their communities, only to be met with a commissioner’s question: “How would you calculate the cost?”

There needs to be a fundamental shift towards a PUC with an institutional culture of upholding Tribal sovereignty and enforceable protections.

In the case of Upper Sioux, we glimpsed the possibility of Tribal concerns being upheld by a PUC. The Commissioners unanimously agreed that the rural electric cooperative was acting in a way that was discriminatory towards the Tribe. There was no patent on electricity that the cooperative held. And this can be a leverage point for Tribes in the future to act similarly when in an arena with PUC commissioners.

What was most encouraging was the coalition that formed around Upper Sioux. It was the leadership from organizations such as the Midwest Tribal Energy Resource Association, Tribal Energy Alternatives, CURE, and the Tribal Advocacy Council on Energy  that submitted comments in support of the Tribe’s position urging the Commission to recognize Tribal sovereignty. These groups continue to push for Tribal renewable energy development in the state and share a vision of government agencies centering Tribal communities.

This case is far from being tied neatly together. After the initial complaint, a new docket was opened to consider transferring the Tribe’s casino from the cooperative’s service territory into Xcel per the Tribe’s request. This jurisdictional maze, subjecting the Tribe yet again to the state’s process, is what needs to be addressed. This decision would result in economic loss for the co-op, and more importantly, a lesson learned: when utilities create barriers to Tribal energy development, Tribes will seek alternatives.

Another takeaway is that the case-by-case approach is not a sustainable path forward for Tribes. Without meaningful policy reform, Tribes will remain entangled in the state’s procedures that grant utilities too much control over distributed energy resources like solar and too little recognition of Tribal sovereignty. Commissioners, policymakers, and Tribal leaders should consider a formal rule establishing Tribal cooperating agency status within the PUC process, where Tribes can insert their own analyses in issues within regulatory proceedings, and it would carry the weight of government-to-government dialogue. This would ensure Tribes have more procedural power and prevent future conflicts like the one with Upper Sioux from happening again.

Change is the only constant we have in the energy industry—and if Minnesota is serious about a renewable energy transition, then Tribes cannot wait for permission from rural electric cooperatives to build clean energy projects that their communities need. The PUC needs to clarify that authority to make those decisions belongs to Tribal Nations only.