FERC, hydropower, and tribal rights: Confrontations at the Little Colorado River

Abstract

The Federal Energy Regulatory Commission (FERC) is well positioned to help advance the United States' clean energy transition through their management of energy projects. One obstacle to achieving the transition is meaningful consultation with Tribal Nations. Following decades of conflict between tribes and FERC regarding infrastructure development, the agency issued a "policy statement on consultation with Indian tribes" in 2003. The Policy acknowledges FERC's trust responsibility to tribes and seeks to work on a "government to government" basis with them, and recent amendments explicitly incorporate treaty rights into FERC's decision-making processes. Despite these interventions, tensions between FERC and tribes continue over the persistent lack of consultation and omission of government-to-government discussions regarding proposed hydropower. In this article, we question the application of FERC's decision-making powers as they intersect with tribal sovereignty via a discourse analysis of 'consultation.' The article applies an ethnographic perspective to explore the 'political' in political ecology and assess FERC's role in licensing the Big Canyon project, a proposed closed-looped pump hydropower project in Navajo Nation in Arizona. The project was proposed in 2020 without adequate consultation with the affected Diné peoples, illuminating significant gaps between FERC's stated policy on consultation and its operationalization. Compounding the situation further, the Big Canyon project would exacerbate human-water relationships by diminishing groundwaters in an area already facing aridification, thereby challenging the health of springs that feed the Little Colorado River, provide habitat for protected species, and are sacred to many Indigenous peoples. Studying the intersection of tribal rights and FERC presents a critical juncture for assessing the underlying power dynamics of decision-making processes regarding pumped storage hydropower in the United States, within the broad context of a clean energy transition.