In December, a federal judge found that Enel Green Power, an Italian energy corporation operating an 84-turbine wind farm on the Osage Reservation for nearly a decade, had trespassed on Native land. The ruling was a clear victory for the Osage Nation, and the company estimated that complying with the order to tear down the turbines would cost nearly $260 million.
According to attorneys familiar with Federal Indian law, it is unusual for U.S. courts to side so clearly with tribal nations and actually expel developers trespassing on their land. However, observers also see the ruling as part of a broader trend: Gone are the days when developers could ignore Indigenous rights with impunity. Now, even if projects that threaten Native land and cultural resources ultimately proceed, they may come with years-long delays that tack on millions of dollars.
As more companies look to build wind and solar farms or mine minerals for renewable energy, failing to recognize Indigenous sovereignty could make the clean energy transition a lot more expensive and much further away.
The Osage Nation ruling is seen as a wake-up call signaling that developing energy in the U.S. must be done with the support of tribal communities. Investors don’t like uncertainty, and many won’t back a project unless they are confident it will succeed, which includes getting the buy-in of affected Indigenous Nations.
One analysis from researchers estimated that resistance to the Dakota Access Pipeline drove the project cost upwards of $7.5 billion. Noncompliance with Indigenous rights can have severe financial implications, making renewable energy projects much more costly and creating the need for companies to be aware of and consider the rights of Indigenous communities.
There’s growing interest from tribal nations, and over the past two decades, they have pursued hundreds of clean energy projects, but in the meantime, costly litigation continues. Companies must recognize the importance of engaging with tribes early as potential partners and information sources during their planning process. Tribes should be seen as sponsors and partners with shared equity in the developments, rather than merely as obstacles to development.
