National Tribal Air Association

(This article reprinted from the latest edition of the NTEC Insights newsletter)

It's January 2010, and Congress and the President have a number of items on their plates such as health care, financial reform, jobs, and national security. Oh, and by the way, there's climate change legislation. While early prospects for passing such legislation during the 111th Congress were good, many of those individuals closest to the process are beginning to have significant doubts that anything significant will happen due to the other priorities facing the nation. Regardless of the outcome, Indian tribes can rest assured that their messages concerning climate change have penetrated the halls of Congress.

Slightly more than three months ago, Senators John Kerry (D-MA) and Barbara Boxer (D-CA) introduced the Clean Energy Jobs and American Power Act (CEJAPA), intended to "cuts carbon pollution and stimu-late the economy by creating millions of jobs in the clean energy sector." Modeled off the House's Ameri-can Clean Energy and Security Act (ACESA), the Kerry-Boxer bill seeks to reduce greenhouse gas (GHG) emissions for covered sources below 2005 levels by 20 percent in 2020 and 83 percent by 2050; provide relief in the form of rebates for consumers affected by the bill's enactment; and significantly invest in carbon capture and sequestration, scientific research and development, and advanced vehicle techno-logies. In addition, the CEJAPA provides perhaps the best inclusion of Indian tribes in any climate change legislation thus far introduced in Congress.

Like the House version, the CEJAPA (S.1733) which was passed by the Senate Environment and Public Works Committee on November 4th, establishes a series of tribal set-asides that provide Indian tribes with the same type of resources made available to states and local governments (see http://www.ntec.org/ Documents/ACESA%20Briefing%20 Document %20(July%2017,%202009).pdf to read the earlier National Tribal Environmental Council briefing about the tribal set-asides and other resources provided under the ACESA). In addition to the set-asides included in both the ACESA and CEJAPA – i.e., energy efficiency/ renewable energy, natural resources adaptation, domestic adaptation and a woodstove changeout pro-gram – the Kerry-Boxer bill provides for a home heating oil and propane gas set-aside as well. Although the CEJAPA does not specify a percentage amount for the set-aside, the bill still anticipates providing allowances to tribes to help them offset increased costs to home heating oil and propane due to the Kerry-Boxer bill's enactment. Specifically, these allowances could be used for cost-effective energy efficiency programs for consumers, or rebates or other direct financial assistance programs for consumers of such fuel. While all of the bill's set-asides continue to be insufficient in size (except that there is now a range provided for the energy efficiency/renewable energy tribal set-aside, namely 1-3 percent, versus the 1 percent provided for under the ACESA), thereby forcing tribes to compete for a discrete number of allowances unlike states (each state would receive a dedicated amount of allowances), tribes receiving such allowances could have them converted to monies via a federal government auction.

Aside from the tribal set-asides, there are a number of places within the CEJAPA where the phrase "and tribes" is found, something generally unheard of for climate change legislation prior to the former Lieberman-Warner Climate Security Act (CSA) introduced in 2007. This phrase goes a long way in provid-ing Indian tribes with access to many of the same resources as states and local governments; and also engages such tribes as partners with the federal government in developing national strategies to adapt to and mitigate against the impacts of climate change.

In addition, three noteworthy provisions are included in the CEJAPA that aren't part of the House bill. First, the CEJAPA calls for the retrofitting of buildings for energy efficiency, ultimately seeking better energy and environmental performance (Section 164(f)). To overcome a void for Indian country, the bill would establish a program and promulgate such regulations as are necessary to assist Indian tribes in carrying out energy efficiency retrofit programs, reviewing a number of existing programs for guidance such as the Weatherization Assistance Program for Low-Income Persons, and the Native American Housing Assistance and Self-Determination Act. Second, the programs for which a tribal set-aside is made available under the CEJAPA's natural resources provisions have been expanded. While the set-aside was formerly restricted to use related to the Tribal Wildlife Grants Program of the U.S. Fish and Wildlife Service, it may now also be used for activities related to the Trust Natural Resources Program of the Bureau of Indian Affairs (Section 370(a)(2)(C)). Third, the CEJAPA would require federal departments and agencies, states and tribes to communicate and coordinate regarding the protection of treaty-reserved rights of Indian tribes to gather first foods (e.g., roots, berries and plants). This provision is complemented by other provisions concerning the federal government's trust responsibility to tribes and other legal requirements as they affect such tribes (Section 372).

While these three provisions are a positive addition to climate change legislation on behalf of Indian tribes, more needs to be done on their behalf, such as improving the size of the aforementioned tribal set-asides to a level that no longer necessitates a competitive process between such tribes for securing a portion of the set-asides. Further inclusion of the phrase "and tribes" is also warranted where voids still exist. To best enable such changes, Senators must hear from the tribes within their states, and to some degree, this has happened. Tribal leaders, however, need to increase their advocacy so as to best insure the needs of their communities are best represented within the CEJAPA or any other forthcoming legislation. In the case of some set-asides, however, tribes and their leaders may face a significant uphill climb in trying to effectuate positive change. This is due in part to other organizations playing an influential role in the legislative process and particularly with respect to the CEJAPA's natural resources provisions. For the most part, these provisions are the result of a handful of organizations that have worked closely together to craft language that meets the approval of conservation-minded Senators and their House counterparts. Unfortunately, this hasn't boded well for Indian tribes which would prefer additional language to better protect their interests and needs. The National Tribal Environmental Council (NTEC) along with its partners such as the National Congress of American Indians (NCAI) and Native American Rights Fund (NARF), however, have been able to make some headway such as in the ACESA in which the organizations were able to help increase the tribal set-aside from one to three percent. More positive change is possible, but will require a greater and much more concerted effort on the part of tribes and their leaders.

Indian tribes and their leaders have been hard at work in effectuating positive change on their behalf. During the last week of October, NTEC and the National Wildlife Federation (NWF) provided staff support to a number of tribal leaders from Montana and the Dakotas who visited with their respective Senate offices, advocating for specific legislative recommendations such as those already mentioned concerning the CEJAPA's tribal set-asides. Additionally, NTEC and NWF partnered with NCAI and NARF to sponsor a Washington, DC climate luncheon and briefing in early November at which the organization's directors (Jerry Pardilla, Larry Schweiger, Jacqueline Johnson-Pata and John Echohawk), tribal leaders (Mike Williams, Akiak Native Community and Fawn Sharp, Quinault Indian Nation) and Senator Tom Udall (D-NM) spoke to the issue of climate change and how the CEJAPA must help to address the needs and concerns of tribes with respect to climate change. Senator Udall's participation was particularly welcome as he has been a strong advocate for tribes on the matter of climate change and has done much to get provisions included in the CEJAPA on behalf of such tribes. As the bill moves forward, Senator Max Baucus (D-MT) will be someone with whom tribal leaders will also want to meet with, particularly as he serves as Chairman of the Finance Committee which will be providing its own markup of the bill. It is also noteworthy that it was the Senator who advocated for and was successful in securing the first set-aside for tribes in any climate change legislation, that being in the former CSA.

As alluded to at the beginning of this article, climate change legislation may be dead on arrival in the 111th Congress as the Senate and House try to tackle a number of issues at once with health care at the forefront. In addition, the United States is facing an economy with 10 percent unemployment and a rising federal deficit. There is also a push by some Senators, like Byron Dorgan (D-ND), for an energy-only bill,
a push that seems to be gathering steam in the Senate. A case can certainly be made that the CEJAPA offers the kind of economic relief that our nation is searching for, but politics may place a brake on such legislation. The general opinion in Washington, DC is if the CEJAPA or an alternative bill is not on the Senate floor by the first quarter of 2010, it's unlikely that a bill will be passed this year as many Senate and House members will be preoccupied with reelection to their respective legislative bodies. Nothing is certain at this point, however, so Indian tribes and their leaders must remain vigilant in advancing their issues and concerns with Congress as they relate to climate change. If a bill ends up moving its way through the Senate, tribes will at least know that their voices will have been heard if something is signed into law, with a greater hope that their needs and concerns will have been memorialized in legislative language.

Sometime this month or in early February, it is expected that the Senate Finance and Agriculture Committees will mark up the CEJAPA, meaning that Indian tribes still have an opportunity to influence legislative language to their benefit. Until such a markup takes place, tribes and their leaders are encouraged to read the latest available version of the bill located at http://epw.senate.gov/publicindex.cfm? Fuse Action=Files.View&File Store_id=1d1bc826-beed-4eb3-933b-d7559bc61d4b and to also contact NTEC for any assistance that they find to be appropriate or necessary in advancing their legislative needs and concerns.