Climate Change and Tribes

:
Places at the Table;
Roles in the Action Plan
2015 National Environmental Justice Conference

Dean B. Suagee
Hobbs, Straus, Dean & Walker LLP
dsuagee@hobbstraus.com
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

1

Overview of Presentation
• Tribes as Sovereign Governments
• Places at the Table –
Federal Review Processes
• The Big Picture
• Roles in the Action Plan
A Better Buildings Challenge for Indian Country
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

2

Natural Resources & Environment
American Bar Association,
Section of Environment, Energy & Resources





Tribal Self-Determination in a Low-Carbon Economy, 2010
Consulting with Tribes for Off-Reservation Projects, 2010
Solar Energy: Let’s Get Passive!, 2011
Tribal Climate Crisis Tax-Exempt Bonds, 2013
A Better Buildings Challenge for Indian Country, 2014
The Climate Crisis, the Renewable Energy Revolution, and
Tribal Sovereignty, Chapter 3 in TRIBES, LAND, AND THE
ENVIRONMENT (Krakoff and Rosser, eds., 2012)
– www.hobbsstraus.com/articles
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

3

Tribes as Sovereign Governments
• Power to Make and Enforce Laws
– “Inherent” tribal sovereignty
– Delegated federal authority

• Governmental Service Programs
– Federal assistance for tribal governments
– Federal assistance for state & local gov’ts

• Power to Raise Revenue
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

4

Tribes as Sovereign Governments
• Power to Make and Enforce Laws
– “Inherent” tribal sovereignty
• Like states but different
• The importance of cultural identity

– Limits imposed by federal law
• Acts of Congress
• Treaties
• Implicit Divestiture
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

5

Tribes as Sovereign Governments
• Governmental Service Programs
– Federal assistance for tribal governments
• Self-Determination contracts
• Self-Governance compacts

– Federal assistance for states & local gov’ts
• Tribes are often overlooked
• In some cases, parallel programs
• Sometimes included, but awkwardly
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

6

Tribes as Sovereign Governments
• Power to Raise Revenue
– Limits on ability to tax
• Legal, e.g. implicit divestiture
• Practical limits

– Limits on use of tax-exempt bonds
• Tribal Climate Crisis Tax-Exempt Bonds, 2013

HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

7

Places at the Table –
Federal Review Processes
• National Historic Preservation Act (NHPA)
– Advisory Council on Historic Preservation
regulations, 36 CFR part 800
• Can be used to bring traditional ecological knowledge into
federal agency decision-making processes

• National Environmental Policy Act (NEPA)
– CEQ regulations, 40 CFR parts 1500 - 1508
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

8

NHPA 1992 Amendments
Places of religious and cultural significance for tribes
(and Native Hawaiian organizations) may be eligible
for the National Register of Historic Places
– Such places may be “traditional cultural properties” that are
(a) rooted in a community’s history and
(b) important for maintaining cultural identity
• National Register Bulletin 38 (by National Park Service)
• Significance may derive from medicine plants, wildlife habitat

– Places need not be TCPs to trigger right of tribes to be
included in the section 106 process
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

9

National Environmental Policy Act
• Council on Environmental Quality (CEQ)
Guidance Documents
– Consideration of GHG emissions and effects
of climate change in NEPA reviews
• Revised draft, Dec. 24, 2014, Federal Register

– Programmatic NEPA reviews
• Final, Dec. 23, 2014, Federal Register

HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

10

THE BIG PICTURE
National Climate Assessment

HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

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National Climate Assessment
• Impacts on Indigenous Peoples
– Reduced access to traditional foods
– Decreasing water quality and quantity, less
predictability
– Declining sea ice – many impacts in Alaska
– Thawing permafrost – stressing traditions,
damaging infrastructure
– Relocation, in Alaska and other coastal areas
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

12

National Climate Assessment

HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

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National Climate Assessment
• To meet the lower emissions scenario,
global CO2 emissions need to peak at
44 billion tons per year
and decline thereafter
• On current path, the world will exceed
44 billion tons per year within 10 years
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

14

Intergovernmental Panel
on Climate Change

HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

15

Intergovernmental Panel
on Climate Change
• A scenario that limits GHG concentrations to
450 ppm CO2 equivalent is likely to limit
warming to 2 degrees C over the 21 st
century relative to pre-industrial levels
• Requires emissions reductions of 40 to 70%
from 2010 levels by 2050, further reduction
to near zero or below by 2100
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

16

Carbon Tracker Initiative
carbontracker.org
• Unburnable Carbon 2013: Wasted capital
and stranded costs (June 2013)
– Through 2050, only 20% of existing fossil fuel
reserves can be burned.
– Remaining carbon budget for a 2 degrees C
world in 2050 is 900 GtCO2 –
existing reserves are 2,860 GtCO2
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

17

Global Warming’s Terrifying New Math
Bill McKibben, Rolling Stone (July 2012)
Three key numbers
• 2 degrees Celsius, 3.6 degrees F
– Target temperature rise over pre-industrial level
• 565 Gigatons of carbon dioxide
– “carbon budget” by mid century
• 2,795 Gigatons
– Proven fossil fuel reserves
About 80% of known fossil fuel reserves must be left in place
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

18

350.org

HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

19

http://arxiv.org/abs/0804.1126
Open Atmos. Sci. J (2008), vol. 2

HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

20

CO2 reductions from energy efficiency
and renewable energy

HOBBS STRAUS DEAN & WALKER, LLP

Source: ASES, Tackling Climate Change

WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

21

Path to a Sustainable, Renewable Energy Future

HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

22

Jobs in Renewable Energy
• International Renewable Energy Agency working
paper (2011)
– Renewable Energy Jobs: Status, Prospects &
Policies; Biofuels & Grid Connected Electricity
• More labor intensive (by output & investment)

• Environmental and Energy Study Institute
– Fact Sheet: Jobs in Renewable Energy and Energy
Efficiency (2013)

HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

23

Don’t Even Think About It:
Why Our Brains Are Wired to
Ignore Climate Change
By George Marshall (2014)
climate conviction.org
• Rational brain v. emotional brain
• Information doesn’t do it
• Trustworthiness of the messenger
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

24

Connecting Some of the Dots –
The Big Picture
U.S. GHG Emissions by Sector – 1990 - 2012
– Electricity
32%
– Transportation
28%
– Industry
20%
– Residential & Commercial 10%
– Agriculture
10%
– Source:
EPA Inventory of U.S. GHG Emissions (April 2014)
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

25

Big Picture - C02 Emissions by End Use
Buildings

44.6%

Industry

21.1%

Transportation 34.3%

Source: Architecture 2030, from U.S. Energy Information Administration
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

26

ROLES IN THE PLAN
President’s Climate Action Plan
• Cut Carbon Pollution in America
• Prepare the United States for the Impacts
of Climate Change
• Lead International Efforts to Address
Global Climate Change
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

27

President’s Climate Action Plan
• Cut Carbon Pollution in America
– Deploying Clean Energy
– Building a 21st Century Transportation System
– Cutting Energy Waste in Homes, Businesses,
and Factories
– Reducing Other Greenhouse Gas Emissions
– Leading at the Federal Level

HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

28

President’s Climate Action Plan
• Cutting Energy Waste in Homes,
Businesses, and Factories
– A New Goal for Energy Efficiency Standards
– Reducing Barriers to Investment in Energy
Efficiency
• USDA RUS Energy Efficiency & Conservation
Loan Program

– Expanding the President’s Better Buildings
Challenge
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

29

Big Picture - C02 Emissions by End Use
Buildings

44.6%

Industry

21.1%

Transportation 34.3%

Source: Architecture 2030, from U.S. Energy Information Administration
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

30

Links to print as pdfs

Big Picture - C02 Emissions by End Use

Source: American Solar Energy Society,
Tackling Climate Change in the U.S. (2007)
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

31

Net Zero – the Architecture 2030 Challenge

Carbon Neutral through Design (energy efficiency, passive solar)
Renewable energy (on-site, off-site)
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

32

A Better Buildings Challenge
for Indian Country
• Include Tribes in the DOE Building Energy
Codes Program
– International Energy Conservation Code, a minimum

• Make Net Zero fossil fuels the standard
– Meeting the need for homes for Indian families can be
part of the solution

• Make sure the USDA RUS EE&C Loan Program
reaches Indian country
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

33

Native American Resources Committee
Online Newsletter, ABA SEER
• Rural Utilities Service Creates New
Energy Efficiency and Conservation Loan
Program
(78 Fed. Reg. 73356 (December 5, 2013)
– Volume 11, No. 1 (Oct. 2014)

• A Planned Issue on Climate Change
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

34

A Better Buildings Challenge
for Indian Country
• 200,000 net zero homes for Indian
families
Equals annual savings of about
– 17.9 trillion Btu
– Or 5.24 billion kWh
– Or 3.09 million barrels of oil
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

35

Local Government Action Plans

HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

36

Local Government Climate Action Plans



Energy management
Transportation
Waste reduction
Land use

HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

37

“Climate Change Blues”
tune of “Honky Tonk Women”
(second verse)
Science tells us that we are the problem
We’ve got to cut emissions of greenhouse gas
In Washington there’s another kind of problem
Politicians with their heads stuck in …
the sand
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

38

Don’t Even Think About It:
Why Our Brains Are Wired to
Ignore Climate Change
Climate change is not just an
environmental issue,
it’s also an economic, health, justice,
national security, and human rights issue
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

39

Climate Change and Tribes:
Places at the Table;
Roles in the Action Plan
2015 National Environmental Justice Conference

Dean B. Suagee
Hobbs, Straus, Dean & Walker LLP
dsuagee@hobbstraus.com
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA

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