Powering Your Business: Developing, Constructing and Financing Alternative Energy Projects in Indian Country
2.5 General AV CLE Credits | WSBA AV CLE Activity ID #410735
Session 5 will focus on a general overview of the renewable energy project development process; a discussion of how to structure a renewable energy project transaction to protect tribal interests, with an emphasis on joint project development efforts undertaken with non-tribal parties; a general overview of key energy development agreements, including power sale agreements, transmission and interconnection agreements, and land leases; and finish with a discussion of ways tribes can finance renewable energy projects, the sources of funding or financing that may be available, the types of investors that may be available, and federal tax incentives for renewable energy projects.
According to the United States Department of the Interior, the United States government currently holds approximately 56 million acres of land in trust for tribes and individual Indians. Under the Alaska Native Claims Settlement Act (ANSCA), another 44 million acres have been set aside for Alaska Natives. The Bureau of Indian Affairs estimates that while Indian land comprises only five percent of the land area of the United States, it contains an estimated ten percent of all energy resources in the United States.
Renewable energy potential in Indian country is even more significant. The National Renewable Energy Laboratory (NREL) has estimated that there is the potential for about 535 billion kWh/year of wind energy alone available on Indian lands in the contiguous 48 states, which is equivalent to 14 percent of current U.S. total annual energy generation. NREL estimates that there is also 17,600 billion kWh/year of solar energy potential on Indian lands in the lower 48 states; this amount is equivalent to 4.5 times the total U.S. electric generation in 2004. In addition, Indian Country will continue to play a growing role in transmission infrastructure throughout the nation.
In addition to the significant tribal control of land and resources in the U.S. and the national focus on renewable energy, tribal interest in renewable energy projects will also likely be fueled by each tribe's long-term goals relating to sovereignty, sustainability, and financial security. In Indian country the past several decades have seen a renewed focus on tribal self-determination, with tribes asserting more control over their land, resources and self-governance. Renewable energy may support a wide range of tribal economic activities, from tourism and gaming to manufacturing and telecommunications. Many tribes have also begun to experiment with their unique legal status to accelerate their economic development efforts. Energy development is one way tribes are creating the infrastructure and capacity to achieve economic independence.
Eric D. Eberhard
Co-Faculty Director, Center for Indian Law and Policy and Distinguished Indian Law Practitioner in Residence, Seattle University School of Law
Eric D. Eberhard is a Distinguished Indian Law Practitioner in Residence at the Law School at Seattle University. From 1995 to 2009 he was a partner in the Seattle office of Dorsey and Whitney LLP. He received his B.A. degree from Western Reserve University in 1967; a J.D. degree from the University of Cincinnati in 1970 and an LL.M. from George Washington University in 1972. He has been actively engaged in the practice of Indian Affairs law since 1973, including employment in legal services, private practice and as the Deputy Attorney General of the Navajo Nation and Executive Director of the Navajo Nation Washington Office. His practice has involved all aspects of the representation of Indian tribes, organizations, individuals and entities doing business with Indian tribes in federal, state and tribal judicial, legislative and administrative forums.
From 1989 to 1995 he served as the General Counsel and Staff Director on the Senate Committee on Indian Affairs for Senator John McCain of Arizona. In that capacity he had direct responsibility for legislation relating to the protection of the environment on Indian lands, Indian cultural resources protection, gaming, water rights, self-determination and self-governance, tribal courts and economic development.
In December, 2000, the U. S. Senate confirmed President Clinton's appointment of Mr. Eberhard to the Board of Trustees of the Morris K. Udall Foundation. President Bush nominated Mr. Eberhard for a second term on the Board in 2005 and he was confirmed by the Senate in 2007. From 2001 to 2011 he chaired the Board's Committee on the Native Nations Institute. In 2011, he was elected as Chairman of the Board of Trustees. He also serves as the Vice-Chairman of the Native American Concerns Committee of the American Bar Association's Committee on Individual Rights and Responsibilities and is a Life Fellow of the American Bar Foundation. Mr. Eberhand is an Associate Justice of the Court of Appeals of the Confederated Tribes of Coos, Lower Umpqua and Suislaw Indians in Oregon.
He has been recognized by Best Lawyers in America and Chambers. At Dorsey & Whitney he was recognized as the Partner of the Year, the Diversity Partner of the Year and the Pro Bono Partner of the Year. He has been honored by the United South and Eastern Tribes, Navajo Nation and its courts, the National Indian Gaming Association, the National Association of Indian Legal Services Programs, the Intertribal Timber Council and the American Indian Religious Freedom Coalition for outstanding service and contributions. In 2013 Mr. Eberhard was presented with the Lifetime Achievement Award by the Northwest Indian Bar Association.
Doug MacCourt, Ater Wynne, Portland Oregon
Doug MacCourt is a Partner with Ater Wynne LLP in the firm's Portland, Oregon office where he is Chair of the firm's Indian Law Practice Group. For over 25 years, Mr. MacCourt has specialized in Indian law, environmental and energy law and regulation, land use and business law for Native American tribes and Alaska Native corporations, industry and local government. Doug works with tribes and native corporations across the US on all facets of energy production and development including community and utility scale power generation, facility siting including NEPA compliance, transmission facilities and rights of way, oil and gas leasing, mining and mine reclamation, water rights, contracts for power sales, fee to trust, financing and helping tribes create and operate successful energy businesses. Doug practices before local, state and federal administrative agencies, tribal courts, trial and appellate courts. Mr. MacCourt represents clients before state and federal legislative bodies to obtain funding and other approvals for energy development projects.
Doug serves on the Board of Directors for the National Association of Local Government Environmental Professionals (NALGEP) and the Northwest Environmental Business Council (NEBC). He is a member of the Executive Committee and past Chair of the Oregon State Bar Indian Law Section. Mr. MacCourt's publication for the US Department of Energy and the National Renewable Energy Laboratory, Renewable Energy Development in Indian Country: A Handbook for Tribes has received national acclaim. Doug is listed in Chambers USA: America's Leading Lawyers for Business, Best Lawyers in America for Native American and Natural Resources law, and is a Top Rated Lawyer in Land Use and Zoning by American Lawyer Media and Martindale-HubbellTM.
General Registration (in-person attendance) - $75
SU School of Law Alumni/Tribal Attorneys (in-person attendance) - $60.00