Tribal Energy Resource Agreements (TERAs): Approval Process and Selected Issues for Congress Baixar grátis

Isbn 13: 9798406786116

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Updated 7/26/2021: Congress provided federally recognized Indian tribes the option to enter into a Tribal Energy Resource Agreement (TERA) with the federal government in the Indian Tribal Energy Development and Self-Determination Act of 2005 (ITEDSA 2005; P.L. 109-58, Title V). TERAs offer tribes increased administrative and regulatory control over Indian energy projects. If the Secretary of the Interior (Secretary) approves a TERA, a tribe can enter into leases and business agreements for the purpose of energy resource development on tribal land or grant rights-of-way over tribal lands for pipelines or for electricity transmission or distribution lines, without requiring the Secretaryâs review and approval for each lease, business agreement, or right-of-way.

ITEDSA 2005 specified the components of a TERA, including requirements applicable to the leases, business agreements, and rights-of-way to be executed under the agreement. ITEDSA 2005 also established procedural requirements and criteria for approving a TERA. One criterion, for example, included a requirement for the Secretary to determine if the tribe demonstrated sufficient capacity to regulate energy resource development. In 2008, the Dep artment of the Interior (DOI) promulgated regulations that further established the process and time frames for DOIâs review and expanded on components of a proposed TERA. Notably, the 2008 regulations provided that tribes may propose in a TERA to assume ce rtain federal activities normally carried out by DOI on behalf of the tribe for energy resource development, except for inherently federal functions. The regulations, however, did not specify the functions considered to be inherently federal.

Although a handful of tribes initiated the process after the passage of ITEDSA 2005, no tribes entered into a TERA and several tribes expressed concerns with the regulatory language and uncertainty regarding the approval process. In its oversight capacity, Congress requested the U.S. Government Accountability Office (GAO) examine the Bureau of Indian Affairsâ (BIAâs) management of Indian energy resource development, including factors deterring tribes from entering into TERAs. In 2015, GAO found that the factors deterring tribes from seeking TERAs included uncertainty regarding the regulations, a complex application process, and concerns regarding the costs to tribes of assuming federal functions.

Responding to tribal requests, Congress pursued legislative remedies to ad dress some of these concerns. In December 2018, Congress enacted the Indian Tribal Energy and Self-Determination Act Amendments of 2017 (ITEDSA 2017; P.L. 115-325), and in December 2019, DOI finalized amendments to its regulations. Among other provisions, ITEDSA 2017 amends the procedural requirements regarding TERAs; adds a tribal certification of being a qualified Indian tribe, in lieu of a Secretarial determination of tribal capacity; and provides for financial assistance to tribes for TERA implementation. Neither ITEDSA 2017 nor the 2019 regulations, however, defines inherently federal functions. Rather, in December 2019 the Secretary of the Interior issued Secretarial Order 3377, Contractibility of Federal Functions for Oil and Gas Development on Indian Lands (S.O. 3377), in which the Secretary directed the Departmentâs Office of the Solicitor to develop a list of inherently federal functions not available for inclusion in a TERA.

Congress may consider various issues regarding the TERA approval process and key differences between statutory and regulatory text. Policy considerations for Congress include (1) processing proposed TERAs; (2); the Secretaryâs discretion in considering TERA criteria; (3) clarifying inherently federal functions; (4) regulatory treatment of qualified Indian tribe in lieu of Secretarial determination of tribal capacity; and (5) financial assistance for TERA implementation.

Número de páginas :28
Isbn 13 :9798406786116
Encadernação Tribal Energy Resource Agreements (TERAs): Approval Process and Selected Issues for Congress:Capa Comum
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