Barriers Preventing the Replication of the Navajo Nation’s Kayenta Project
By: Sean Magraw
The Kayenta Solar Project, in Kayenta, AZ, is a multi-stage solar development that began as a single 27.5-megawatt solar installation. Constructed in 2017, it was meant to serve the residents of the Navajo Nation Reservation. The first plant has been a success; during the construction and development phases, members of the Navajo Nation earned $5.2 million in wages, received valuable technical training, and the energy from the Kayenta installation stayed within the boundaries of the Navajo Nation, serving approximately 18,000 homes. The success of Kayenta I installation led to the decision to build a second installation of comparable size, Kayenta II.
Construction on Kayenta II began in August 2018 and operation began in October 2019. In its entirety, the Kayenta Solar Project (I and II) will serve approximately 36,000 homes immediately, and will hopefully serve as a springboard for the development of another 500-megawatts of renewable energy installations in the Navajo Nation. The Kayenta Solar Project represents the potential of renewable energy installations beyond simply replacing carbon-emitting plants with solar installations. The installations represent immediate energy independence for the Navajo Nation and potential energy independence for many other First Nations around the United States.
Since 1868, the story of energy and Navajo Nation is one of extraction. Coal and Uranium are found in large quantities on Navajo Nation land, and both have been mined extensively within the Nation’s boundaries. Extraction often occurred without compensation, both in terms of the monetary value of the extracted minerals and the resulting energy production (thousands of homes on the Navajo Nation had no electricity). Energy has been exported to outside communities, while the residents of the Navajo Nation were perpetually underserved. This was, in part, because the Navajo Nation was not a significant player in any stage of the energy production process. The Kayenta Project represents a massive change in this narrative, as it is the first utility-size renewable project that is owned, operated (the Navajo Tribal Utility Authority runs the installations in partnership with Salt River Project, a non-profit utility) and consumed by a First Nation.
Unfortunately, due to the current energy policy of the Federal government, other First Nation governments will have significant difficulties in replicating the success of the Kayenta Project. The current energy policy that First Nations operate under is a hodgepodge of federal legislation and agencies. There are three major congressional acts that directly govern energy development on First Nation land: the Indian Mineral Leasing Act (IMLA), Indian Mineral Development Act (IMDA), and Indian Tribal Energy Development and Self-Determination Act (ITEDSA). However, other legislation may be triggered depending on the circumstances of the proposed action, including the National Environmental Policy Act or Endangered Species Act. The enforcement of these acts falls to a number of federal agencies, including the Bureau of Indian Affairs (BIA), Bureau of Land Management (BLM), Department of Interior (DOI), and Environmental Protection Agency (EPA).
While many of these factors exist for any energy project within the United States, the requirements found within the IMLA, IMDA, and ITEDSA create significant, often project ending, barriers to the development of energy projects by First Nations. For example, the IMLA and IMDA both require that the governing federal agencies must grant the First Nations approval before energy development negotiations begin between the First Nations’ governmental body and a non-Nations entity. Furthermore, the language of both statutes has created uncertainty around the development of renewable energy on First Nations land. Renewable energy sources are not explicitly addressed, making potential project development partners and investors skittish. The ITEDSA was enacted with the purpose of removing the barriers embedded within the IMLA and IMDA. However, since it was passed in 2005, no First Nation has participated in the ITEDSA process due to legal complexity and cost. Furthermore, federal agencies can insert themselves into the process, and have actually ended deals that had been approved by other federal agencies under the IMLA and IMDA.
While the Kayenta Solar Project is a massive change in the First Nations energy development narrative, it is a change that is likely to be slow in coming to Non-Navajo First Nations. The Navajo Nation enjoys unique energy development rights in the First Nation-Federal government energy development framework. While still subject to federal oversight under the DOI, the Navajo Nation has the authority to develop its own energy regulations. Once approved by the Secretary of the Interior, the regulations remove the approval requirements that exist within the IMLA and IMDA. Further, the Navajo Nation negotiates and enters into energy development agreements on its own. The Kayenta Solar Project is a result of the Navajo process and is an example of the possible successes that are being inhibited by barriers that exist within the Federal Governments’ First Nation energy development regime.