WASHINGTON – The Senate Energy and Natural Resources Committee offered a textbook example of politics in a democracy April 29, when the Indian section of the national energy legislation passed by a single vote.
Title III, the Indian Tribal Energy Development and Self-Determination Act of 2003, now moves on, as part of the larger energy legislation, to a vote of the full Senate. Sen. Pete Domenici, R-N.M., chairman of Energy and Natural Resources, said the vote could come as early as the week of May 5.
But first it had to survive the committee vote of April 29, and that turned out to be undecided until the last vote had been cast.
Domenici opened the so-called “mark up” meeting (when the revised version of a bill, the “chairman’s mark” in lawmaking jargon, comes up for final committee action) by calling Title III a joint working product of Energy and Natural Resources and the Senate Committee on Indian Affairs, chaired by Sen. Ben Nighthorse Campbell, R-Colo. To the initiated at least, this language cleared up a couple of matters involving the energy bill: the text Domenici had earlier put forward in Title III on tribes and the energy bill, widely reported in the national press, was merely a placeholder, buying time for the two committees’ staffs to work on the difficult but all-important “chairman’s mark” draft. The draft blends elements of Domenici’s proposals and of two separate bills, S. 424, sponsored by Sen. Jeff Bingaman, D-N.M., and S. 522, sponsored by Campbell. These proposals, previously considered at a business meeting of the Senate Committee on Indian Affairs, now become defunct, having given their content to the chairman’s mark of Title III.
These inner workings of the Senate, if you will, gave way to the more familiar processes of debate and voting as soon as Domenici had finished with his prefatory remarks. The committee adopted a slate of technical amendments “in block,” that is without debate.
But afterward, debate was the order of the day, and it took place along party lines. The bill’s Republican backers, led by Domenici and Campbell, offered a resolution in support of the bill from the board of the Council of Energy Resource Tribes, representing 54 of the nation’s energy-producing tribes. The Democratic opposition, led by Bingaman, revealed that two of CERT’s member tribes, the Navajo and Jicarilla Apache, had been peeled from the supporting cast. Bingaman offered their letters against the bill, leading Campbell to suggest they were responding to the earlier version of the bill – the “chairman’s mark” draft having become public information only on April 25.
Bingaman wasn’t convinced. He argued that provisions of the bill that would streamline tribal energy production, especially as they involve leasing and rights of way approvals, would also undermine the federal trust obligation toward tribes. These provisions, characterized by Campbell as “an adequate coupling of decision making with liability for those decisions,” would enable tribes to submit an energy production plan, including tribal regulations, to the Secretary of Interior.
Upon secretarial approval at the front end of the project, the tribe would not have to seek further secretarial approvals, especially on leasing and rights of way decisions – a needed elimination of red tape in the interests of streamlining production, as Campbell sees it. In return for streamlined operations, tribes would assume all liability for projects developed under the streamlining provisions.
Bingaman, unconvinced, offered an amendment to eliminate the streamlining provisions. “Not enough analysis has gone into this.”
Campbell: “It’s a strictly voluntary thing, tribe by tribe ? To delete [the streamlining provisions] would gut the whole thing.”
Bingaman now raised environmental arguments against the bill, insisting that the “front end-loaded” approval by Interior would pose a threat to the environment by leaving “streamlined” projects essentially unregulated in that regard as they progress.
Domenici intervened: “Senator Bingaman’s amendment will gut this bill.” He urged its passage as debated, without the amendment. “To do otherwise would be to red-tape them [tribes] ? back to the way it is now.”
Dianne Feinstein, D-Calif., then joined the fray for Bingaman, noting that curtailed environmental review would represent “a major change.”
Domenici, the committee chair, invited remarks from committee technical staff as to whether environmental review would apply once the Interior secretary’s approval of tribal regulations is approved – it was inconclusive, though no one argued with the view that if a Secretary of Interior doesn’t believe tribal regulations for a “streamlined” energy project adequately protect the environment, s/he can reject the plan.
Campbell closed debate by noting for the third time that the bill’s “streamlining” provisions come into play at the discretion of each tribe – the bill does not force them on any one tribe but gives every tribe the option of adopting them.
The bill then went to a vote, the vote being on whether to attach the Bingaman amendment instead of passing the bill “as debated.” Bingaman insisted on a roll call vote.
The vote took place along party lines, defeating the amendment 12-11. The bill “as debated” now goes to the full Senate for a vote.
If the legislation passes the full Senate, its next stop would be a conference committee of House and Senate members who would try to reconcile differences between the energy bills in both chambers. A similar energy bill “died in committee,” as the saying goes, in last year’s 107th Congress. Sen. Campbell, speaking briefly at a reception of the Arizona Intertribal Council the evening of April 30, ascribed the setback last session to concerns over oil development in the Alaska National Wildlife Refuge. Domenici, main sponsor of this year’s Senate energy bill, has publicly stated that he will not permit amendments to this year’s bill that include reference to the refuge.
Energy interests are too many and powerful for anyone to consider the bill’s passage a sure thing. But opinion seems to be fairly firm among observers that the Republican-controlled Senate will not strip the bill of its Indian provisions.
Among them is one that will assist the Navajo in developing an electricity transmission wire between the Four Corners region of the reservation and Nevada, with its large electricity markets. Will this late amendment lead the Navajo to ultimately support the “chairman’s mark” version of Title III?
No telling at this writing, but the question arises in light of committee concerns April 29 as to whether all parties were familiar with the “chairman’s mark,” much advanced over the separate text previously on offer from Bingaman, Campbell and Domenici.
David Lester, executive director of the Council of Energy Resource Tribes, can appreciate the differences between the two versions. On the very day the Energy and Natural Resources Committee made public the CERT board’s support letter for Title III, the Denver Post – in an article headlined “Campbell seeks more drilling on Indian land” – quoted the CERT executive director as saying Campbell’s plans “could cause great mischief for Indian energy development.”
Lester himself cleared up any discrepancy on the same day. His comments in the Denver paper, he said, reflected his views of an earlier version of the Indian Tribal Energy Development and Self-Determination Act of 2003, Title III for short. His concerns have been dispelled by improvements reflected in the version voted on April 29, he added.
“Right now Indian energy has been hit and miss, here and there,” Lester said. “This [bill] puts us into the game.”
It does so, he added, by creating a separate Office of Indian Energy within the Energy Department, by providing for capacity building in energy-related fields, by moving tribes toward parity with states in terms of access to efficiencies in electricity production, by encouraging tribes to develop projects that “deliver electricity to their own growing economies” instead of only to faraway off-reservation populations, and by advancing renewable fuel production (especially wind power) among tribes.
Lester said that tribes must share blame for any resistance to the bill from environmentalists – better communication is called for, he said. “There is some work on our side to work with the environmentalist community, because they have the impression we haven’t done enough ? Tribes are not trying to lessen any environmental controls. We’re trying to lessen the bureaucratic burden.”
