Renewable energy vs. cultural preservation - Solar, Wind and Land: Conflicts in Renewable Energy Development - page 127

of such a dispute involves the Colorado River Indian tribes in western
Arizona and southern California, who made similar arguments in 2012
against a solar energy project proposed on public land in California's famed
Mojave Desert. 47 Even though the proposed Genesis project was of of the
tribes' reservation area, tribal leaders argued that ancestral remains found
on the land were part of a “living spiritual world” and that to disturb them
would “disrupt [...] the peace of [their] ancestors.” 48 The tribes also sent a
letter to the California Energy Commission in January of 2013 complaining
that the BLM and other government agencies had “failed to take seriously
concerns raised by the tribes.” 49 The letter alleged that agency officials
were unacceptably placing renewable energy goals above that of preserving
cultural resources, citing the agency's own admissions that “[c]ultural
resources are non-renewable and, once damaged or destroyed, are not
recoverable.” 50 Unfortunately for the tribes, project construction continued
in spite of their pleas.
These ongoing disputes highlight the conflict that often arises when
renewable projects are proposed on public lands that have cultural signifi-
cance to Indian tribes in the United States. As mentioned above, this tension
is partly attributable to ambiguity regarding what constitutes an adequate
NHPA Section 106 “consultation” between public officials and interested
tribal groups in this context.
Some tribal rights advocates interpret the NHPA's consultation requirement
as effectively requiring federal officials to accede to tribal demands
regarding development on public lands. Indeed, a guide published by the
Indigenous Peoples Subcommittee of the EPA's National Environmental
Justice Advisory Council distinguishes “consultation” requirements from
less onerous “public participation” requirements and suggests that consul-
tation necessitates at least some deference to tribal wishes. According to the
guide:
Conventional public participation initiatives … [do] not require the
federal government to change its decision based on localized, public
input … On the other hand, consultation between the federal and tribal
governments should be a collaborative process between government
peers that seeks to reach a consensus on how to proceed … [I]n some
instances, specific requirements demand the federal government give
special deference to tribal preference. 51
The guide later elaborates that consultation “generally means much
more than sending letters, notices, and copies of documents to tribes and
requesting comment.” 52 This language arguably implies a viewpoint that,
to at least some degree, federal agencies must acquiesce to tribes' restric-
tions on development on public lands where tribal cultural resources
are at stake, even if such conditions hinder a valuable renewable energy
project.