Curiosity and Carbon: Examining the Future of Carbon Sequestration and the Accompanying Jurisdictional Issues as Outlined in the Indian Energy Title of the 2005 Energy Policy Act

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I. INTRODUCTION

The promise of successful carbon sequestration and carbon trading is on the horizon. As such, the 2005 Energy Policy Act (EPAct 2005 or the Act) has a section devoted to Indian energy that attempts to jumpstart sequestration research in Indian country.1 Title XXVI, the Indian Energy title, contains a governmental proposal that invites tribes to explore the renewable energy fields and carbon sequestration.2 The EPAct 2005 states that the Director of a newly created Office of Indian Energy Policy and Programs shall "develop a program to support and implement research projects that provide Indian tribes with opportunities to participate in carbon sequestration practices on Indian land."3 Included under the approved sequestration practices are geologic, forest, and agricultural sequestration.4

The premise behind sequestration is three-fold. First, sequestration reduces the presence of greenhouse gases in the atmosphere.5 Second, sequestration can be a means for enhanced oil recovery.6 Third, there is potential for the carbon market to make sequestration economically feasible.7

This paper examines the three types of sequestration promoted in the EPAct 2005 and further explores the jurisdictional issues surrounding supervision and control over carbon trading by Indian tribes. The feasibility of widespread carbon dioxide sequestration on tribal lands hinges on the ability of tribes to make sequestration economical and potentially earn a return on the sequestration both through enhanced oil recovery and the carbon market.

There currently are no mandatory governmental controls over carbon dioxide emissions in the United States. However, the federal government encourages corporations to begin keeping voluntary records of emissions and there is already an active carbon market trade facilitated by the Chicago Climate Exchange.8

The Kyoto Protocol is the global intergovernmental response to mitigating climate change.9 It aims to reduce domestic emissions as a way to "turn the tide of global warming."10 The Protocol set emission targets for industrialized nations as a means to implement the negotiated decisions made at the Framework Convention on Climate Change.11 In 1997, as a part of the Kyoto negotiations, 160 nations, agreed to "place legally binding limits on carbon dioxide and other greenhouse gases."12 Current projects in some states and in other parts of the world will serve as a model for tribes if sequestration proves to be a feasible option. This comment will survey programs currently in effect and those in different stages of development.13

II. OVERVIEW OF SEQUESTRATION AS DESCRIBED IN THE INDIAN TITLE OF ENERGY POLICY ACT

The EPAct 2005 provides a rough framework for tribal exploration and implementation of carbon sequestration. The applicable text of the Act reads as follows: "[t]he Director shall develop a program to support and implement research projects that provide Indian tribes with opportunities to participate in carbon sequestration practices on Indian land, including-(i) geologic sequestration; (ii) forest sequestration; (iii) agricultural sequestration; and (iv) any other sequestration opportunities the Director considers to be appropriate."14

The Act calls for coordination of research with similar projects conducted by the Secretary of Energy.15 Furthermore, the research projects measure carbon levels and sequestered amounts, and are subject to review in order to assure that the projects do not threaten the "social and economic well-being of Indian tribes."16

Economic and legal feasibility plays an important role in the implementation of these sequestration research and pilot projects into the tribal landscape.

III. THE ROLE OF CARBON SEQUESTRATION IN MITIGATING GREENHOUSE GASES

Carbon dioxide is not the only greenhouse gas. It does, however, account for roughly eighty percent of the greenhouse gases emitted by developed countries. …