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Tribal lawsuits threaten Biden’s clean energy push

By Niina H. Farah | 02/08/2024 06:36 AM EST

“The courts are being put to the test” on tribal sovereignty and property rights, said one lawyer.

Portion of Enbridge's Line 5 oil pipeline in Michigan.

An aboveground section of Enbridge's Line 5 oil pipeline is pictured at the Mackinaw City, Michigan, pump station. John Flesher/AP

A Wisconsin oil pipeline. An Oklahoma wind farm. Tribal lawsuits over these types of projects are poised to test the legal limits of the Biden administration’s clean energy ambitions.

Just weeks after a federal judge took the rare step of ordering the removal of a commercial wind farm on Osage Nation land, a tribe in the Great Lakes region Thursday will make its case that a separate court should shutter an oil conduit that travels through Chippewa reservation land near Lake Superior.

The Bad River Band’s fight against Enbridge’s Line 5 pipeline is just one example of tribal property rights “butting up against these economic enterprises where they’re being conducted, essentially, in violation of those rights,” said Riyaz Kanji, an attorney representing the band before the 7th U.S. Circuit Court of Appeals.

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“The courts are being put to the test in terms of whether they are willing to enforce the tribes’ sovereignty and property rights,” said Kanji, a founder of the firm Kanji & Katzen.

Tribal litigation targeting the Osage Wind and Line 5 projects could carry important lessons for the Biden administration, which has poured billions of dollars into renewable energy development following the passage of the Inflation Reduction Act. Many of those projects will face legal challenges similar to those that have been raised against oil and gas development.

One of Biden’s signature renewable energy projects — the SunZia transmission line, designed to carry primarily solar- and wind-generated power 500 miles across the Southwest — has already faced opposition from tribes in court.

Those conflicts are bound to arise again and again, said James Coleman, a law professor at Southern Methodist University.

Tribal challenges under federal laws like the National Environmental Policy Act and the National Historic Preservation Act “can absolutely be a roadblock to some of the new development,” he said.

Just because the Biden administration is focused on renewables rather than fossil fuels does not mean it will get a pass on legal scrutiny from tribes, said Wesley Furlong, an attorney for Native American Rights Fund.

He said: “There’s a bit of a rising trend of more and more renewable energy development happening and tribes being caught in the middle or expected to have no issues with it because it supports the ‘Green Revolution.'”

Line 5

The outcome of the Bad River Band’s Line 5 challenge could send a warning to other project developers about the consequences of trespassing on tribal land.

A 7th Circuit ruling ordering the pipeline’s removal could be particularly impactful because the court hears a lot of cases from tribes, legal experts said.

The appeals court Thursday will examine a decision from a lower bench that found Enbridge is trespassing on the Bad River Reservation and ordered the project’s removal — but gave the company until June 2026 to rip out the pipe.

“We’re saying the court got it right that there are core tribal sovereign interests at stake here, and that those are paramount,” said Kanji. “But it got it wrong in allowing the operation [of Line 5] to continue for three more years.”

The Bad River Band is concerned about more than just the pipeline’s trespass. They also claim the project needs to be shuttered quickly because a segment of the pipe is at risk of rupturing due to riverbank erosion.

Juli Kellner, a spokesperson for Enbridge, said the energy company is “committed to developing and maintaining good relationships with Indigenous peoples” living near its projects

The Canadian company had proposed more than a dozen projects to address riverbank erosion on the Bad River near Line 5, but the band has not approved any of those options or initiated its own protections, Kellner said.

Like the Bad River Band, Enbridge is also asking the 7th Circuit to reconsider the lower court’s ruling. The company maintains that the band consented to the operation of the pipeline in 1992 and has agreed to allow the pipeline to remain in service.

Osage Wind

If it’s upheld on appeal, a federal court order shuttering the 84-turbine Osage Wind farm could set chilling precedent for developers that don’t consider how their projects might conflict with tribal property rights.

The December was a stunning win for the Osage Nation — and carries massive financial consequences for the wind farm’s developers.

“It’s more common to get an order saying [a project] no longer has authorization than to actually rip stuff up,” said Coleman of Southern Methodist University.

“Taking down these wind turbines would be very destructive for the people who made the investment,” he said.

The judge found that developers Osage Wind, Enel Kansas and Enel Green Power North America, had failed to respond to an earlier court order to obtain permits from the Interior Department’s Bureau of Land Management for disturbing the Osage mineral rights held in trust by the federal government.

Developers said in a recent court filing that they plan to fight the decision in the 10th U.S. Circuit Court of Appeals. Enel did not respond to a request for comment by press time.

The 10th Circuit, which covers six Western states, frequently hears tribal lawsuits. It’s where Justice Neil Gorsuch, a conservative jurist who often sides with tribes in cases, served before ascending to the Supreme Court.

“The 10th Circuit controls the law in a wide swath of the country, and it becomes — not binding — but persuasive precedent,” said Dylan Hedden-Nicely, director of the Native American Law Program at the University of Idaho.

While Enel is concerned about the economic impacts of removing the turbines, Osage Minerals Council Chair Everett Waller said he is thinking about the shutdown order’s impact for future generations.

“I’m worried about my grandchildren’s issues of sovereignty,” Waller said.

SunZia transmission line

The Line 5 and Osage Wind cases focus on energy projects located on tribal lands — but tribal challenges to projects outside Indian Country may have a tougher time finding footing in court.

Tribes may struggle to fight projects in areas where they “have really compelling and really important sovereign interests and resources that are potentially affected by these projects — but not really any power to dictate whether those projects happen,” said Furlong of the Native American Rights Fund.

He pointed to a recent lawsuit over the new Biden administration-approved SunZia renewable transmission line in Arizona’s San Pedro Valley, which is slated to be built on the traditional territory — but not on the reservations — of the Tohono O’odham Nation and the San Carlos Apache Tribe.

The tribes sued in federal court in Arizona earlier this year to block the project.

Pattern Energy, the parent company for the SunZia Southwest Transmission Project, pushed back on claims that the project had not undergone a proper review.

Natalie McCue, vice president of environmental and permitting at Pattern, said in an emailed statement that the planned high-voltage line has been subject to years of careful evaluation to protect cultural and historical sites.

“Pattern has welcomed the engagement of Tribal representatives to inform important decisions regarding the project and has fully supported the government to government consultation process throughout development of the project,” McCue said.

She noted that all of the project would be built on state or private land, and nearly 40 percent of that portion runs parallel to existing infrastructure.

“Tribes can fight and push and try to get an agency to not issue a permit,” Furlong said. “But the legal structure we have for authorizing these types of projects is that that system is really inclined to grant permits.”

He continued: “It’s very difficult for tribes to get agencies to a point of saying no.”