Community Benefits Agreement Guidelines for Renewable Energy Projects on Tribal Lands in the U.S.

MAY 2023

COMMUNITY BENEFITS AGREEMENT GUIDELINES for Renewable Energy Projects on Tribal Lands in the U.S. Applied to Solar Development on Red Lake Nation 11.171 Final Report Trace Allen, David Berón, Lia Downing, Abby Fullem, Danny Mollericona, Anisha Nakagawa, Kay Whiteaker

This Community Benefits Agreement (CBA) toolkit is intended to support Tribal Nations in maximizing the benefits they receive from the development of renewable energy on Tribal land. It is intended to be used as a tool for self-determination, energy sovereignty, and empowerment throughout the development process.

This CBA toolkit was specifically developed for Red Lake Nation and Indigenous Energy Initiative, but may be useful for Tribal governments considering the development of renewable projects, and community members in negotiation with developers and settler governments.

This document begins with relevant context and then has two main sections: guidelines for developing a CBA, and then tailored guidelines for developing a CBA for a utility-scale solar development on the Red Lake Nation.

TABLE OF CONTENTS Context Energy Sovereignty through Renewable Energy 1 The Potential Power of Renewable Energy to Counter Systemic and Historic Violence Against Indigenous Communities 2 Red Lake Nation 4 Policy and Regulatory Environment 5 Section 1: Community Benefits Agreements 8 The Decision to Pursue a CBA 9 CBA Resources 10 Pursuing a CBA 11 1. Understand the Development Project 13 2. Identify Community Interests 13 3. Identify Multiple Approaches to Meet Community Interest 14 4. Understand the Role of a CBA 14 5. Learn from Best Practices 14 6. Determine Coalition's Approach to Development Project 15 7. Negotiate CBA 15 8. Implementation, Monitoring, and Enforcement 15 Key CBA Components 16 A. Actors/ Involved Parties 16 B. Potential CBA Benefits 17 C. Funding 19 D. Implementation Plan 20 Conclusion 21 Section 2: CBA Process in Red Lake Nation 22 Project Definition 24 A. Free Prior and Informed Consent 25 B. Community Engagement 27 Example Benefits for CBAs 28 CBA Project Examples 30 A. Tribal Nation Energy Project Examples 30 B. Other Community Solar Examples 31 Conclusion and Next Steps 32 Appendix 34 Elise Harrington 34 Ginger Gibson 35 Cherilyn Spears 36 Cheri Goodwin 37 References 38

01

CONTEXT

ENERGY SOVEREIGNTY THROUGH RENEWABLES “Renewables are a powerful tool to restore self-determination” - Chéri Smith, Indigenous Energy Initiative Sovereignty is a key concept in political theory that establishes authority in decision-making, and is traditionally used in reference to state bodies (Britannica, n.d.). Sovereignty, however, can also be used as an empowering principle of the people's will. The emerging concept “energy sovereignty”, in this sense, takes an important role as it prioritizes the rights and decision making of the people: “Energy sovereignty is about empowering people and communities to make decisions about energy systems” (Schelly et al., 2020).

We are in a period of climate change and energy crisis, and renewable energy is one powerful tool to decarbonize the world. Renewable energy is being prioritized and fast-tracked globally, and energy sovereignty needs to be prioritized as renewable energy projects are being installed in vulnerable communities in the United States. Emphasizing energy sovereignty has the potential to have disinvested and vulnerable communities benefit from the immense deployment of renewable energy.

THE POTENTIAL POWER OF RENEWABLE ENERGY TO COUNTER SYSTEMIC AND HISTORIC VIOLENCE AGAINST INDIGENOUS COMMUNITIES

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“Renewable energy development represents a pathway out of poverty for Native American tribes that is in line with our cultural values” - Robert Blake, Red Lake Nation

Indigenous communities live with historically accumulated disadvantages: many have been forcefully relocated or dispossessed from their homeland. As a result, many Indigenous people in the United States live in poverty; According to the American Communities Survey, 50% of Native Americans lived in poverty from 2008-2012 (Davis et al., 2016). Indigenous families in the United States make up the highest percentage of families living below the federal poverty line than any other group. Structural racism, genocide, and systemic dispossession have resulted in negative social outcomes in Tribal communities such as high rates of unemployment, addiction, violence, and suicide.

There is a severe drought of economic opportunities on Tribal reservations (Miller, 2022). Many Tribal Nations have turned to casinos and the gaming industry as revenue streams, and the industry has increased income per capita with the potential to produce additional revenue that can be invested in social programs (Davis et al., 2016). This industry was adversely affected by the COVID-19 pandemic – as many were – and Tribal Nations that have casinos and gaming saw reduced revenues (Wheeler, 2021).

03 An alternative industry and revenue stream that could be harnessed by Tribal Nations is renewable energy. Renewable energy can offer economic opportunities for Tribal Nations and their members, and, at the same time, can be a step towards energy sovereignty. By creating their own energy utilities, Tribal Nations could eliminate their energy dependence on settler companies, and promote their own sustainable development. A potential pathway for Tribal Nations to reach energy sovereignty is illustrated in Figure 1. Harnessing the literal and metaphoric power from renewable energy is in step with huge movements of Indigenous resistance in North America that have actively stopped or delayed gas line development and additional gas pollution (Indigenous Environmental Network, 2021).

FIGURE 1. POTENTIAL PATH TOWARDS ENERGY SOVEREIGNTY FOR TRIBAL NATIONS

04 RED LAKE NATION MMISKWAAGAMIIWI - ZAAGAIGANING, also known as Red Lake Nation (RLN) has full sovereignty over their land, and is federally-recognized as a sovereign nation¹ (Red Lake Nation, n.d.-b). The Red Lake Band of Chippewa Indians belongs culturally to Anishinaabe people from the Great Lakes Region of North America. They have a close relationship to land and waters and use the Doomen – Totem – as a signature of kinship (Bohaker, 2021). RLN has a “closed reservation,” meaning it is owned and occupied entirely by members of the Red Lake Band of Chippewa Indians, with no private property within it. RLN has not signed any treaties or federal acts, and they did not cede land to the United States federal government (Brill, 1992). RLN faces the history of inequities and injustices described above, and Tribal members on the reservation face high levels of poverty and a median household income lower than average in the surrounding state of Minnesota.

Our project partner, Bob Blake, is a RLN Tribal member and founder of the solar development firm Solar Bear. Bob sees solar development as a way to harness energy from the sun, and put that positive energy into Red Lake Nation. He points to the positive ripple effects local solar projects have had on income, jobs, entrepreneurial opportunities and other community benefits in communities such as on the Navajo Nation and in Richmond, CA. He emphasizes that Tribal-owned renewable energy projects have the potential to bring economic and community benefits without contributing to social challenges, unlike the gaming industry.

RLN was the first Tribal Nation to secure federal approval for energy development (Agoyo, 2022), and the first to create a Tribal Energy Development Organization (U. S. Department of the Interior Indian Affairs, n.d.).

¹ Other groups identified as Anishinaabe today include: Ojibwa, Chippewa, Ottawa , Mississauga, Potawatomi, and Algonquin.

POLICY AND REGULATORY ENVIRONMENT

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As a federally-recognized Tribal Nation, RLN falls under the jurisdiction of the United States Federal Government and not the jurisdiction of the State of Minnesota, whose borders it is within. Red Lake is governed by its own Tribal Council. This structure provides the Red Lake Nation autonomy to steer development on its land. Additionally, Red Lake Nation has its own local legal system (Minnesota Indian Affairs Council, n.d.).

Solar Bear is in the process of developing a utility-scale solar development for RLN, which is the impetus for this report. The next sections detail the unique policy and regulatory environment that Red Lake operates within as it relates to this utility-scale solar development project.

STATE CONSIDERATIONS As a sovereign nation, Red Lake is not under the jurisdiction of the state of Minnesota. However, this project may still be affected by the state’s electric grid laws. Though further work on this is beyond the scope of this report, we want to highlight that the legal limitations of agreements pertaining to the grid will determine the parameters of this project.

For example, one financing pathway for the utility-scale solar development project is a Virtual Power Purchase Agreement (VPPA), which are business agreements rather than physical power supply agreements (Stoel Rives LLP, 2023). For a VPPA, an “offtaker” would pay to fund the project in exchange for the renewable energy tax credits and a portion of the revenue generated, but would not receive electricity. This is in contrast to a Power Purchase Agreement (PPA), where the entity funding the project would also purchase electricity. Dr. Harrington noted in an interview that while this project can make use of a VPPA, it cannot enter into a PPA because of Minnesota State law, which states that only a specific set of utilities are authorized to provide electricity to the “deregulated” Minnesota grid. VPPAs avoid this as they are regulated as business agreements, rather than agreements to sell electricity. Despite RLN operating as a sovereign nation, it is still restricted by state law in relation to the electrical grid.

06 Dr. Harrington also noted a mid-range energy grid consideration: MISO, the midcontinent grid operator, offers market rates for both the energy market and the capacity market. There are potential benefits for participating in the capacity market, and the MISO grid market is something that the parties involved with the solar development project have the option to consider.

FEDERAL CONSIDERATIONS The Inflation Reduction Act (IRA) passed in 2022 charts an entirely new course for United States climate change goals and policies. Multiple analyses have found that in combination with current policies and progress, the IRA will cut America’s greenhouse gas emissions in 2030 by about 40% from their 2005 peak. Specifically, the IRA reserves $722 million for Tribal and Indigenous communities. A few IRA programs relevant to renewable energy on Tribal lands are summarized below.

Tribal Energy Loan Guarantee Program ($75M through 2025) Provides resources to guarantee loans for Tribal energy investments, which can include: electricity generation, transmission and/or distribution facilities that utilize renewable energy sources, distributed energy project portfolios – including portfolios of smaller distributed generation and storage facilities – and district heating and cooling facilities $20B loan authority cap Borrowers include Tribal Energy Development Organizations, TEDOs², that are wholly or substantially owned by a federally recognized tribe as well as Indian Tribes or entities Lenders include federally regulated commercial banks, other financial institutions, or tribes satisfying requirements established by the DOE

² TEDOs are business organizations in which the Tribe owns majority interest. They allow entry into and management of energy-related leases, rights-of-way, and business agreements without obtaining Secretarial approval for each one individually. This reduces bureaucratic hurdles to seeking renewable energy projects. Red Lake Nation formed the first ever TEDO in 2022, giving Red Lake full control over any energy resource development project they choose to undertake. https://www.bia.gov/news/indian-affairs-approves-first-ever-tribal-energy-development-organization

07 Tribal Electrification Program ($150M) Provides financial and technical assistance to Tribes to increase the number of Tribal households with zero-emission electricity Energy Credit for Solar and Wind Facilities in Connection with Low-Income Communities Boosts investment tax credits (ITC) by 10% for solar and wind facilities that serve low-income communities and Indian communities OR 20% for projects where at least 50% of financial benefits accrue to low-income households ITC: 6% base rate, 30% bonus rate for prevailing wage and apprenticeship requirements Specific to Indian land, must be part of qualified low-income residential building project or qualified low-income economic benefit project Greenhouse Gas Reduction Fund ($27B through 2024) $7B for grants to States, municipalities, tribal governments for technical assistance to enable low-income and disadvantaged communities to deploy or benefit from zero-emission technologies Direct investment: provide financial assistance to qualified projects at national, regional, state, local levels, retain/manage/recycle/monetize repayments using grant funds to ensure continued operation Climate Pollution Reduction Grants ($5B through 2026) Planning and implementation of programs, policies, measures, and projects to achieve or facilitate reduction of greenhouse gas air pollution Low-Emissions Electricity Program ($17M through 2031) Outreach and technical assistance with respect to reductions in greenhouse gas emissions that result from domestic electricity generation and use

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SECTION 1: COMMUNITY BENEFITS AGREEMENTS

09 INTRODUCTION A Community Benefits Agreement (CBA) is a binding legal document between a community and a private developer that acts as a strategic vehicle for community improvement. CBAs include specific benefits stipulations taken on by the developer in exchange for community support of the project. CBAs can be considered mechanisms to deliver benefits to a community that may experience adverse effects of a project. In the context of renewable energy, the topic of development focuses on renewable energy generation such as solar panels, a wind farm, or a geothermal energy site.

There are many types of agreements with similar names, such as Project Labor Agreements, Impact Benefits Agreements, and participation agreements. Some similarities revolve around bringing different relevant actors to the table and negotiating to create value in a proposed business transaction. Context becomes much more important when considering matters of Tribal law, cultural communication, and industry-specific benefits and harms. These guidelines focus specifically on renewable energy development and Tribal Nations in the United States.

THE DECISION TO PURSUE A CBA Before getting into the details of a community benefits agreement that would offset potential negative effects of a project, a potential host community must first decide how to approach the project itself. They may decide to try to block the project, to support it, or to support it contingent on a satisfactory community benefits agreement. This decision will greatly affect the way the potential host community engages with the project proponents, and determine if and how they will negotiate a CBA.

10 When considering whether to participate in a CBA process, it is important to ask questions of why and how. What is the purpose of participation in a renewable energy development project? Why should a tribal nation engage in this type of process? What are the problems facing the community? How might a renewable energy project serve (or not) as a solution? Renewable energy development operates differently from other energy resources as well as other industries like real estate or mining, so asking these types of questions will help ground processes in the geographic, economic, and cultural contexts of a proposed development.

The rest of this document will be useful for Tribal Nations who have decided to support the development project contingent on a satisfactory benefits agreement.

CBA RESOURCES Several organizations have created guides and toolkits to develop effective community benefits agreements. Though most of them have been developed for real estate projects in urban contexts, some of their key lessons and recommendations can be applied in other contexts, including renewable energy projects on Tribal lands in the United States. The following list identifies some of these resources and lists their main attributes.

Community Law Center’s One-pager on CBAs · Brief overview of CBAs and community benefits commonly included in CBAs (jobs, housing, environmental benefits, community assets) · Mentions case studies, mainly in California, where CBAs have been used

Department of Energy’s CBA Toolkit · Introduction to CBAs for energy projects · Two case studies: Robbinston, Maine and Richmond, California · Emphasis on values that CBAs promote and the early-stage steps that each actor should take (developers, communities, governments)

11 Action Tank’s CBA Toolkit · Toolkit for communities, mainly for urban real estate projects · Focus on process, from coalition building to CBA implementation and followup

Community Benefits Law Center’s CBA Guide · Comparison of strong and weak CBAs · Indicators to measure the effectiveness of CBAs · Case studies of weak and strong CBAs

Scotland’s Community and Renewable Energy Scheme (CARES): CBA toolkit · CBA toolkit for Scotland’s small and medium renewable energy projects · Focus on governance, identification of community needs, and securing community benefits · Tips on monitoring and evaluation

Firelight Group’s IBA Toolkit · Comprehensive Impact and Benefit Agreement (IBA) toolkit for First Nations, Inuit, and Métis communities in Canada · Focus on large-scale mining projects, but recommendations can be implemented in other kinds of projects · Exhaustive list of potential community benefits

PURSUING A CBA Every project generates unique benefits that may or may not be fully aligned with the needs of the host community. The process followed during the design of a CBA will largely determine the extent of the overlap between project benefits and community needs. We call this the “negotiating space” – i.e., how to maximize the overlap in community needs/interests and what the project can provide. The negotiation space is shown in the diagram below.

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WHAT COMMUNITY WANTS

CBA (MAXIMIZE AS MUCH AS POSSIBLE)

WHAT BENEFITS PROJECT CAN PROVIDE

FIGURE 2. COMMUNITY BENEFITS AGREEMENT VENN DIAGRAM

Preparing and executing a CBA involves several stages, including advocacy, negotiation, implementation, and follow-up. Several organizations —like Action Tank and the Firelight Group — have identified key steps in this process. In the case of energy projects in Tribal lands in the United States, we suggest that host communities consider the following steps: 1) understand the project, 2) identify community interests, 3) identify multiple approaches to meet those community interests, 4) understand the role of a CBA, 5) learn from others, 6) determine how to approach the project, and, finally, if they decide to support the project, 7) negotiate a CBA, and 8) implementing, monitoring, and enforcing. More information on each step is below.

13 1. UNDERSTAND THE DEVELOPMENT PROJECT To fully consider the trade-offs, the potential host community needs to fully understand the potential project’s positive and negative environmental, economic, and human health effects, and the financial, regulatory, and political landscape. Financially, it may be helpful to understand the scope of how much money the project will cost and the profit it will deliver. Regulatorily, it may be helpful to understand the requirements the developer must meet.

Politically, it may be helpful to understand what support exists for the project.

Cumulatively, these considerations start to map out the opportunity for negotiation with regards to the project and the community benefits agreement.

2. IDENTIFY COMMUNITY INTERESTS Gibson and O’Faircheallaigh (2015) find that a potential host community’s clarity on understanding their interests is a critical factor to their success (p.

12). They first need to define the community and then include them, or representatives of the community, in the delineation of interests and the rest of the steps. It may help to identify what the community has to gain and/or lose through the project. For example, perhaps a community has the opportunity to gain economic opportunities and less expensive energy, but the possibility of losing agricultural lands. This suggests that a starting list of community interests may be job opportunities for residents, spending less money, and maintaining agricultural lands. They may also have a specific interest in generating renewable energy in their community.

14 3. IDENTIFY MULTIPLE APPROACHES TO MEET COMMUNITY INTEREST Once the community interests are identified, the potential host community should then brainstorm alternatives to the renewable energy project that would meet the interests identified in (2), above, with fewer negative effects.

For example, are there other programs that would provide jobs for community members? Or, might there be fewer adverse effects from a different kind of renewable energy? This will help the potential host community consider other options and perhaps pursue other options simultaneously, thereby giving them more agency in their negotiations

4. UNDERSTAND THE ROLE OF A CBA As stated in the introduction, CBAs include specific benefits stipulations taken on by the developer in exchange for community support of the project. They will not, nor are they intended to, reduce the adverse effects of a project. The potential host community should try to understand the scope of benefits that could be obtained through a CBA.

5. LEARN FROM BEST PRACTICES Building a network through which to exchange and share information among those who have engaged in similar processes is critically important. This exchange can occur through a range of activities, from large-scale and formal processes, to individual discussions on specific technical issues. There is a wealth of information to gain from communities that have gone through similar negotiations, including knowledge of the process, regulations, financial opportunities, and technical information. Collaborating with experienced stakeholders, building coalitions, participating in advocacy campaigns, and interacting with the media are all ways to learn from others and share information.

15 6. DETERMINE COALITION'S APPROACH TO DEVELOPMENT PROJECT Following these steps, the potential host community will then need to determine if they will block the project, support it, or support it contingent on a satisfactory community benefits agreement. If they decide to try and block the project, they should consider many strategies, including legal, mass mobilization, and political approaches. In fact, these tactics can be employed while negotiating the project and the CBA to gain political leverage. Many strategies will be needed to influence the outcome of a project.

7. NEGOTIATE CBA Negotiating a CBA does not equate to the potential host community’s consent to a proposed project. The potential host community has the right to stop negotiating at any point.

While negotiating, experience and research from Gibson and O’Faircheallaigh (2015) shows that a community’s ability to stay united and plan collectively are powerful factors in CBA negotiations, regardless of legal leverage (p. 12).

United communities can employ many strategies (e.g., coalition building, litigation, mass mobilization) to pressure the developer.

8. IMPLEMENTATION, MONITORING, AND ENFORCEMENT The final step in the process involves implementation, monitoring, and enforcement. A CBA must include key metrics that will be used to monitor the agreement’s effectiveness once implemented. These metrics will also help the host community measure compliance with the agreement and ensure that the CBA is generating its expected benefits. The document should specify how the agreement will be implemented, monitored, and enforced.

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KEY CBA COMPONENTS Once the potential host community has decided to negotiate to obtain community benefits via a CBA, it is important to define four key CBA components: 1) actors/ involved parties, 2) potential benefits, 3) funding sources, and 4) implementation plan.

A. ACTORS/ INVOLVED PARTIES Understanding who the actors are, and how they relate to each other, is important in a negotiation because it helps identify actors’ interests, potential benefits they could offer, and identify potential coalitions. The process of identifying the actors and understanding how they relate to each other, can also be referred to as actor (or stakeholder) mapping.

Guiding questions to initiate actor mapping around a renewable energy project are below. Not that one actor type may include multiple entities.

1. What laws pertain to the project and who regulates them?

There are likely many laws pertaining to the project, and thus many agencies regulating them, at the Tribal, state, and federal level.

2. Who develops the project?

It is useful to identify who is developing the project, what their motives are, what their profit will be, and what their business structure is.

3. Who funds the project?

Projects can be funded through private investments, and Tribal, state, or federal funding, grants and tax credits.

17 4. Who operates the project?

The developer may or may not be the ultimate operator. It is helpful to identify who, once the project is built, will operate it.

5. Who (beyond those profiting from the project) will benefit from it?

This could include a Tribal government, Tribal citizens (both those living on or off a reservation), non-Tribal neighbors, and the environment. Sub-groups of these groups (and others not listed) will be benefited to varying degrees.

6. Who will be adversely affected by the project?

This could include a Tribal government, Tribal citizens (both those living on or off a reservation), non-Tribal neighbors, and the environment. Sub-groups of these groups (and others not listed) will be adversely affected to varying degrees.

B. POTENTIAL CBA BENEFITS Many types of benefits could be included in a CBA. A list of benefit categories and examples is included below.

Benefit Category

Example

Source

Local Hiring

A requirement to hire local workers for 40-60 percent of the 640 jobs created by the project

One Hill Neighborhood Coalition (Community v Pro Sports Stadium)

Wages + Labor Protections

Living wage + unions

One Hill Neighborhood Coalition

Workforce Development

Job center to help residents get union apprenticeships and jobs paying a living wage$6M to fund job training

One Hill Neighborhood Coalition Richmond v Chevron

Green Space

$6 million to fund community development, green space preservation, drug, alcohol, and mental health services, and educational and youth programming

One Hill Neighborhood Coalition

18 Mental Health Services

$6 million to fund community development, green space preservation, drug, alcohol, and mental health services, and educational and youth programming

One Hill Neighborhood Coalition

Food Equity

$2 million to build a grocery store in the neighborhood, which qualified as a food desert

One Hill Neighborhood Coalition

Sustainability

LEED certification plan for the new stadium

One Hill Neighborhood Coalition

Community Resources

Establishment of a community center

One Hill Neighborhood Coalition

Scholarship Programs

10-year, $35M scholarship fund for residents to be educated in technical fields

Richmond, VA x Chevron CBA

Cultural & Conservation Easement/Conservatio n Restriction

There are examples of this in Big Sur, where the Esselen Tribe of Monterey County purchased 1,199 acres , in Oregon, where a timberland owner sold 3,200 acres to the Coquille Indian Tribe, and in British Columbia, where a rancher donated half of his ranch to his Indigenous neighbors, Esk’etemc First Nation.

Conservation Partners Summary

Utility Rates

Customers either own or invest in renewable sources, receiving discounts on their electricity that those sources generate. Some utilities and developers also provide advice to community members on energy efficiency, which can help reduce their energy bills

UMich Traverse City Study

Infrastructure/Intercon nection

Kingsbridge Armory: Developer required to contribute $8M dollars initially for specific purposes, including establishing an annual $10,000 renewable energy scholarship fund for residents of Northwest Bronx to be trained to operate developer’s geothermal and/or solar power systems; establishes a “wall to wall” living wage payment requirement, covering all workers within the project

For Working Families

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Tribal Utility

For example, the Gullen Range wind farm in Australia contributes $1,666 per annum for each turbine in its development to a community enhancement fund, amounting to $120,000 in 2014. The fund supports projects that benefit the community within a 10km radius and is governed by the local council.9 Developers in the US have also employed this model, contributing funds either tied directly to energy output or as a lump sum donation.

To promote one Michigan development, Cypress Creek Renewables, based in California, donated a specific dollar amount for every 2 MW of energy generated; the fund was administered by the local developer

UMich Traverse City Study

Local Business Procurement

48 local jobs during construction and 7 ongoing operational roles. Developers may also commit to consuming goods and services from local businesses for the duration of project development

UMich Traverse City Study

C. FUNDING There are multiple potential funding sources for CBAs. Example funding sources include the developer, shares of the project, organizations benefiting from the project, and tax credits. One example is shared below.

Example: “Lapeer, MI partnered with DTE Energy to develop two utility-scale community solar projects on public lands (Dow Sustainable Fellows & Groundwork, 2018). City officials wanted to ensure that this solar development had broad community benefits, so they added language to their development contract that outlined a solar taxation schedule and commitments for DTE Energy to fund and organize solar educational programs in the community. The Michigan State Tax Commission has not established an official solar taxation schedule, so by adding this language, Lapeer ensured they would receive local tax benefits similar to those received by a wind project — even if the state changed its solar taxation policies.

20 This additional tax revenue has been used to fund sewage and water infrastructure. The educational programming commitment led to DTE Energy funding and operating an interactive, informational kiosk; regular, publicallyavailable tours of the solar farm; semi-annual events at the solar farm; a solarthemed “play” for local students; and student access to their solar monitoring systems for educational purposes. These events and resources have helped educate the community about the benefits of solar and how it is impacting their community”

D. IMPLEMENTATION PLAN Community coalitions must consider how to effectively monitor implementation of the CBA and to track success (or failure) of outcomes. Best practices here include clear upfront deliverables, agreed upon timeframes, and language in the agreement inclusive of the consequences of failure to meet agreed upon deliverables. This agreement should clearly state the responsibilities of all the involved parties, providing the community coalition with clear enforcement mechanisms to provide accountability.

Example: Kingsbridge Armory CBA in Bronx, NY (Partnership for Working Families & CBLC, 2016). This CBA created formal structures for communitybased oversight and enforcement of each of the provisions with clear penalties and broad remedies. Defined reporting processes and record keeping requirements for each employer involved in the development must be provided to the Community Advisory Council, an entity established by the CBA to assist with and monitor implementation of the agreement. Individuals not paid a living wage have a cause of action against the developer to enforce the terms and are entitled to interest and attorneys’ fees if successful. If employers fail to meet the CBA requirements within a certain timeframe, the Community Advisory Council may seek various remedies, including monetary damages or injunctive relief in court

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CONCLUSION CBAs present a powerful opportunity for Tribal Nations such as Red Lake Nation to steer development in a manner that enhances the quality of life with citizens. As demonstrated through countless examples, the potential utility scale development coming to Red Lake has the potential to not only bring renewable energy to the nation, but to fund affordable housing, education, workforce development, and more through a CBA. However, it is crucial for a robust coalition of stakeholders to be unified in order to ensure that the CBA encompasses their individual and collective interests.

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SECTION 2: CBA PROCESS IN RED LAKE NATION

23 INTRODUCTION Part 2 of this report applies the CBA process outlined in Part 1 to a proposed community solar project in Red Lake Nation headed by developer and RLN citizen Bob Blake and his company, Solar Bear. This section recommends an approach to Solar Bear and Red Lake for designing a CBA for this project, should they choose to write one, but does not set any process in stone. The ideas proposed are informed by interviews with Bob, Red Lake community members, CBA experts, and other actors in this project.

The CBA guidelines in Section 1 are tailored here to be suited to the context of Red Lake Nation in this part of the document. The following table lays out recommendations for each step, and identifies which must be done by Red Lake Nation themselves.

1) understand the project

Free Prior Informed Consent process

2) identify community interests

Proposed community engagement methods appropriate for RLN

3) identify multiple approaches to meet those community interests

List of potential benefits

4) understand the role of a CBA

Pursuing a CBA

5) learn from others

See annotated bibliography in Section 1 and Section 2 project examples

6) determine how to approach the project, and, finally, if they decide to support the project

This decision needs to be made by RLN, but could be informed by community engagement

7) negotiate a CBA

This step must be done by RLN

8) implementing, monitoring, and enforcing

This step must be done by RLN

24 We hope that this report will provide useful information for Solar Bear and Red Lake in their CBA process, carrying forward and consolidating everything we have learned. We also hope that it will provide further case-study insight into how a nation might go about a project similar to the proposed solar array.

PROJECT DEFINITION The Red Lake solar project will be a community solar array. It may receive development funds from offtakers via an agreement in which Red Lake would offset their electricity costs and sell energy to Minnesota and the surrounding area.

The project is currently in early development, and Solar Bear is in the process of securing offtakers. Accordingly, community engagement about the project is extremely timely. The CBA process, as described in Section 1, begins with building understanding of the project and defining the negotiating space, and proceeds to negotiation planning and the negotiation itself. Because Solar Bear is indigenous-owned by Bob Blake, a member of Red Lake Nation, “negotiations” may look different than those with a non-native entity as per the discretion of Red Lake.

Making a map of actors involved in and affected by the development can help to guide negotiating parties and community involvement by ensuring that everyone who may want to provide feedback has been accounted for. Based on our conversations with project proponents and community members, we offer a preliminary diagram below of everyone who might be affected by or involved in this project. This draft diagram has been informed by interviewees, but is likely missing nuance.

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FIGURE 3. ACTOR MAP FOR RED LAKE NATION SOLAR DEVELOPMENT PROJECT

A. FREE PRIOR AND INFORMED CONSENT Dr. Gibson emphasized the importance of prior free and informed consent (PFIC) in her guide to tribal CBAs (Food and Agriculture Organization of the United Nations, 2016). This is a framework to ensure that Indigenous people around the world are aware of all aspects of a development and have the opportunity to fully consider whether they consent to it. These ideas have been codified in the United Nations General Assembly’s Declaration on the Rights of Indigenous Peoples. Free prior informed consent involves a self-directed process by the community from whom consent is being sought, unencumbered by coercion. The consent must be sought sufficiently in advance, including engagement as part of an ongoing process, and the collective decision should be reached through customary decision-making processes of the communities.

The Food and Agriculture Administration has created a Manual for Project Practitioners that contains a detailed guide to implementing PFIC in practice.

26 The following is an example of the information that Solar Bear might include as part of a FPIC process. These considerations should be further negotiated by the community as part of the process of creating a CBA.

Project Information: Where the solar development would be built (on a map) How much power it will supply (20MW) How much power to Red Lake Nation (5MW) How much power to MnDOT through the VPPA (15MW) Whether additional infrastructure will be built to transport electricity, and where that infrastructure will go Which buildings on the reservation would be powered by solar energy Benefits: Electricity on Red Lake Nation will come from solar energy instead of fossil fuels Creating X number of jobs.

Solar Bear should attempt to have an accurate number or range for the number of jobs it predicts will be created. It should also include how confident this estimate is, and whether it would increase or decrease in different scenarios.

The percentage of jobs that will go to tribal members The hourly wage for workers Cost of electricity at $35 per month for X number of kWatts per household.

Creating a Tribal Utility Company in X years to own and operate the solar energy development Harms: Uses community land Construction could have environmental impacts Building this project will involve a debt of X dollars that will need to be paid back through the operation of the project. Red Lake Nation will borrow X amount from the tribal bank and Solar Bear will be responsible for paying it back.

27 B. COMMUNITY ENGAGEMENT Before creating a CBA, it is important to be clear on who the community is, and who will be representing them. We must determine who will be representing or negotiating on behalf of “the community.” Options include the Tribal Council, a group of elders, or a person or group of people who are seen as community leaders. Best practices are to include a trusted community member outside the developer's organization to play this role to avoid conflict of interest.

The community must be informed about the development through the FPIC process described in the previous section. The community representatives should then engage in a process of community engagement in order to get feedback on the project proposal, whether there are any additional benefits or harm mitigation measures the community wants to see, and finally whether the community is ready to enter this agreement.

Abiding by best practices, project orgainzers should compensate community members who share input for their time. Cheri Goodwin emphasized that in her community engagement in Red Lake, compensation included a physical gift like wild rice or maple sugar, in addition to both monetary compensation like gift cards.

We recommend the following methods for community engagement in Red Lake Nation: 1. Town Halls: This is our top recommendation, because there are already monthly community meetings for feedback in each of the four communities within Red Lake. This method was recommended by both of our Red Lake interviewees; Solar Bear could ask for one monthly meeting to be focused on this development, or for 10-15 minutes at each meeting.

2. Newsletter: Because Red Lake already has a newsletter, this avenue could be used to invite people to the community meetings or to share information about the project as part of the FPIC process. However, this format is not conducive to feedback so it would have to be used in addition to other methods.

3. Radio Station: Red Lake could also use the radio station to convey information about the project, similar to newsletters. The radio host could interview Bob and ask him questions about the project.

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EXAMPLE BENEFITS FOR CBAS Benefits written into a CBA should be SMART (specific, measurable, attainable, relevant, time-bound). For example, rather than just saying a project will create jobs, you should list how many jobs and whether they are only for a couple years or if they will exist long term. These guidelines make a CBA stronger, more clear, and makes it possible to follow up later and evaluate whether this goal was reached.

The list below contains examples of the types of benefits a community could ask for in a community solar CBA. Rather than an exhaustive list, Red Lake should feel comfortable to include additional ideas that make sense for their community. Traditionally, developers would finance benefit funding, but in this case funding might come from co-applying to grants or other sources.

Creating jobs for people on the reservation: Specify the number of jobs that would be created and the timeline for when they will be created and how long they will last.

Fair wage guarantees: Decide on the wage that tribal members will be paid for working on the project.

Apprenticeship programs: Some CBAs contain a requirement for training or apprenticeship programs for people on the reservation so that they can get jobs on the solar project after they are done. Is this useful if there are limited people who already have the appropriate training ahead of time. Specify how many apprenticeship spots, how long the training is, how much they will be paid in the training period, and whether there are guaranteed jobs afterwards.

Building other infrastructure at the same time as building infrastructure for solar power: If this project will require building power lines to connect the solar panels to the grid, or any other infrastructure, are there other tribal infrastructure projects that can be built at the same time? Agree on which projects and where they are.

Funding feasibility studies for other desired technologies: For example, Red Lake Director of Agriculture Cherilyn Spears noted that she would be interested in a feasibility study into agrivoltaic systems for upcoming large-scale farming projects.

Sponsoring youth engagement initiatives: Cherilyn Spears also notes the value in negotiating funding for youth programs. Red Lake youth build initiatives are currently federally funded, which reduces tribal control over curricula, logistics and program goals. Negotiating a youth build initiative (via a grant or other means) on Red Lake’s own terms would give them the freedom to teach what they want, how they want, with whom they want, and to what end.

Energy efficiency retrofit projects: The tribe can save money on electricity if homes are made more energy efficient, such as through weatherization programs. Cherilyn noted that this would also reduce the propane that needs to be bought and brought to community members.

Specify the types of retrofits, where the money will come from, and who will get the jobs in this – for example, if these jobs will go to youth.

Electrification projects: Since electricity would be generated by Red Lake, it is cheaper and cleaner than using oil or natural gas for heating or stoves. Electrification projects could convert home heating, stoves, or transportation to using electricity, which would now be solar electricity.

If this is a benefit, who will fund it and how much money would go into it?

Clarity on ownership: Clarify who will own the project after creation, who will own the project after all debts are paid.

Profit sharing or cooperative ownership: Some examples of community solar use a cooperative ownership model where the community collectively owns the solar panels, and if there is extra profit after covering operating costs, it goes to the community. In this proposed model, most of the profit from selling electricity goes towards subsidizing the cost of electricity for Red Lake Nation members.

However, it is still important to be clear on who owns the project and who profits would go to if there are any access profits.

Local procurement of goods: Set agreements ahead of time about whether any of the materials needed for the project can be bought from people who are part of Red Lake Nation. More broad agreements on material procurement can include prioritizing BIPOC-owned businesses, local businesses, etc.

Financial contributions to fund community needs: the developer can put a set amount of money towards projects that the community wants to see, such as building a park or community center.

Cost of electricity: set the price that tribal members will pay for electricity, the amount of energy they can receive at the cost, how long this is guaranteed for, under what conditions it might change.

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30 Education and outreach: Cheri Goodwin emphasized the importance of intergenerational education, getting everyone at all ages involved for a feeling of ownership and shared purpose. That includes children and elders, not just apprenticeship programs for specific age groups. She suggested perhaps an electronic kiosk at the store that maps out how solar fits into the broader picture of energy sovereignty, or shows how a solar panel works, or any other resources for curious minds.

Funding or support for new technology: Cheri Goodwin also mentioned supporting innovation and new technologies in Red Lake, such as electric boats and other vehicles. She reminded us that electric vehicles are a popular topic in Red Lake, and paving the way for more can help reduce gas consumption.

CBA PROJECT EXAMPLES In this section, we list other CBA toolkits, other tribal energy projects, and other community solar projects that might be useful resources for Red Lake or Solar Bear moving forward.

A. TRIBAL NATION ENERGY PROJECT EXAMPLES On top of the key resources above, we compiled a list of other nations that have done CBAs relating to renewables, or simply other examples of nations who have engaged with energy development. Note that every nation is unique, and differences between the examples above and Red Lake may come in the form of (but are not limited to): culture, geography, biosphere, siting restrictions, state regulations and incentives regarding for example grid connections/energy business agreements, taxation system, possible and actual funding sources, etc.

31 Kayenta Solar Navajo Nation (via Navajo Tribal Utility Authority NTUA) partnered with another utility SRP to build two solar farms that lowered electricity rates and paved the path for further solar development.(U. S. Department of Transportation, n.d.)

Yakama Power Not a solar development, but a tribal utility development that helped residents save on electricity costs, while offering employment and energy efficiency. Our project partners note that this is a good potential model (Yakama Power, 2018) for the development of a Red Lake tribal utility.

B. OTHER COMMUNITY SOLAR EXAMPLES Community solar CBAs are slightly different from other types of CBAs, and they are even different from CBAs for standard solar development projects, because community solar CBAs inherently include benefits for the community through the operation and ownership of the project. The main differences are that in community solar projects, members of the co-op get cheaper electricity as part of the development happening, which is not the case in most other development projects. Community solar projects also usually have an element of community control, such as shared ownership over the solar panels, or shared ownership over the operation such as through a tribal utility company. As a result, benefits can be more closely tied to the operation of the community solar project.

SPICE CBA process The Solar Power Investment Cooperative of Edmonton (SPICE) is a community solar project in Alberta, CA. This guide describes their process for creating their CBA, a list of commonly discussed benefits that came up through their design charrettes process, and an example CBA.

32 T’sou-ke Nation Solar Project This document discusses a solar water heating project in the T'sou-ke Nation in Canada. Section 5.2.1 Conservation Program on page 68 discusses their energy conservation work through behavioral changes and education, and through retrofits of housing such as sealing the house envelope and insulation. This might be especially useful to Red Lake Nation to learn from and model energy conservation efforts.

Denver Housing Authority CARES project The CARES project in Denver created a solar garden with a focus on reducing energy bills for low income housing, where energy bills in 500-700 households decreased by 20%.

CONCLUSION AND NEXT STEPS Section 2 focused on a potential CBA process and considerations for Red Lake Nation's solar project.

As in any development enterprise, it is important to proactively engage with everyone who might be affected by the project so they can give feedback, decide their position, and prevent unforeseen issues from coming up mid-development. In addition to the time and expertise that Solar Bear has already been sharing with the community for other projects, suggestions for community engagement on this particular large-scale solar project are included.

The FPIC process is a proven model and great starting point for community engagement around a development.

A CBA can encode a broad scope of benefits, and there are many aspects of every benefit to consider when encoding them. Benefit suggestions from interviewees, and things to consider in encoding these benefits.

Learning from others is an important part of any project: other resources for CBA negotiation, design, and community outreach, as well as references to other energy projects that might serve as helpful models.

Our interviewees were indispensable to this work – who they are and what we learned from them is summarized in our Appendices.

33 Red Lake and Solar Bear are already leaders in solar energy, engagement and innovation. This community solar development project is an opportunity to lead in large-scale tribally-owned community solar, and to pave the way for the clean energy and energy sovereignty that is important to our Red Lake interviewees.

An effective way of making the most of this opportunity, and ensuring that the project is developed and owned in a way that is satisfactory for everyone involved and affected, is encoding its benefits in a legal agreement. Whether Red Lake chooses to do this through a CBA or other means, community engagement on the project is critical.

Now is a great time for Solar Bear to start doing this engagement, with suggested avenues for engagement given by our interviewees. Incredible work has already been done by Red Lake and Solar Bear, both together and apart, and this work will pay off and carry forward as proponents spread awareness and engagement with the project. As our interviewees noted, the success of the work done by the developers and the negotiators hinges on community engagement with the project.

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APPENDIX: SUMMARY OF INTERVIEWS Elise Harrington (Interviewed March 14th, 2023) Professor Harrington works in the Hubert H. Humphrey School of Public Affairs at the University of Minnesota. She worked on VPPA background assessment for the Red Lake Solar project.

Key takeaways: There is a relationship between RLN and the project proponents that makes this project possible. What are the benefits that RLN sees within this relationship that are not discussed in typical renewable energy projects?

What does RLN see as development?

Think about an offtaker like MNDOT: what are their priorities? What do they value? What are their equity and inclusion goals and how can supporting this project fit into that?

Specific consideration for Minnesota: can’t do PPA, only VPPA, because not deregulated and only a particular set of utilities are authorized to provide electricity.

VPPAs don’t have a lot of state-level regulation bc structured as a financial contract Beltrami is a cooperative so not regulated.

MISO has particular characteristics: market rates for (1) energy market & (2) capacity market. There are potential benefits for participating in capacity market – something for the project to consider. Not specific to MN but it will be in the MISO region.

Elise also provided valuable feedback on the actor map, emphasizing that we should expand the “Red Lake Nation” part of the map and that multiple offtakers are possible.

35 Ginger Gibson (Interviewed March 23rd, 2023) Professor Gibson is a director of the Firelight Group, which supports the rights and interests of Indigenous communities in Canada. Her field of specialization is negotiation and implementation of Impact and Benefit Agreements (IBAs) (similar to CBAs). She is a co-author of the IBA Community Toolkit for Negotiation of Impact and Benefit Agreements, which was essential for Section 1 of this project.

She is also an adjunct professor at the University of British Columbia.

Key takeaways: We must be clear in our work that we are working for the project proponent, not on behalf of the nation as a whole. We also can’t speak to the project risks Even though Bob is a member of the nation, a clear community feedback process – as well as negotiation away from any project proponents – is very important because everyone potentially affected by this project should have a chance to have a say and give their FPIC. A potential risk to consider in this discussion process: if the nation is required to take an equity stake in the project (we don't know if this is the case), they could be stuck writing checks if the project fails.

Community outreach and engagement should start ASAP! Red Lake decision makers having someone like Ginger or the Firelight group (who doesn’t charge tribal nations, just developers) to help with the CBA process is helpful, though unfortunately Firelight IBA negotiation services are only offered in Canada.

FPIC process: does the nation want it informed decision of "yes we'll explore" or "no we won't" info trickles in about financial upsides/downsides/siting/how they'll participate (ex. are they equity investors or citizen based payments). This process takes time which should be accounted for.

There is funding for the project but is there funding to support community engagement? DOE is recently putting time and energy into CBAs so there is probably a lot of funding going around for getting that community engagement (ie allowing a consent process).

Also important to note that some federal funding acts require CBAs to be a part of the process. Look into the landscape: which legislative, soft policy, legal instruments and legislated financial resourcing supports can be in play?

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36 Cherilyn Spears (Interviewed April 19th, 2023) Cherilyn Spears is the Director of Agriculture in Red Lake Nation, currently working on 4 core commitments of growing food, reintroducing buffalo (30 of them now!), medicine gathering and hemp production.

Key takeaways: All of her projects take electricity, from the buffalo enclosure electric fence to the water pumps for the vegetable gardens and beyond, and she would love to see these projects supported by renewables rather than the coaldriven grid.

Feasibility studies have been important to Red Lake when a developer comes in proposing a project.

She sees many benefits to a Red Lake solar energy generation project: Security against outages Getting young people involved so they learn how to maintain the solar projects, giving them a sense of pride and ownership while providing transferable training.

Not paying so much to the utility that Red Lake currently buys electricity from.

She hopes that success in this project can pave the way for more solar development, like agrivoltaic systems on Red Lake’s planned large-scale farming operations – these make dual-use of farmland and diversify income for farmers.

Other benefits it would help her department to encode (described in more detail in Section 2.3): weatherization programs, more freedom and/or a grant for youth build programs, investment in hemp agriculture, feasibility studies for new projects like agrivoltaics, funding or planning for solar tech for farming purposes.

Cherilyn gave great insights into historical and successful methods of community engagement and outreach, as noted in Section 2.2.B. Red Lake has a great history of successfully opposing external developments, but in her opinion, solar generally makes the cut because it doesn’t hurt the land in the same way that a pipeline or an airport (past opposed projects) might.

Cheri Goodwin

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(Interviewed May 5th, 2023) Cheri Goodwin is the Executive Director of Ombimindwaa Gidinawemaaganinaadog, which means “Uplifting All of Our Relatives” and delivers child and family services in Red Lake Nation. Cheri emphasizes that the name of this department reflects a focus on serving and considering the entire family, intergenerationally. This family-centered approach underpins all of the department’s work. You can learn more about Cheri and Ombimindwaa Gidinawemaaganinaadog on Red Lake’s website (Red Lake Nation, n.d.) and in an interview she did with MinnPost (Steiner, 2022).

Key takeaways: She has done a lot of community engagement: Asking for 10-15 minutes to present info about the project at district reps' regular community meetings is a very good starting place Social media outreach is also very important. Lots of people in the community use Facebook: there are Facebook groups you can connect with and many community members who are very active and involved in them.

Go to community events (go to many!) and do engagement there.

Interviewing elders and getting their input is very important: they are the knowledge keepers and their opinions are held in high regard.

In return for interviews, she gave two gifts: a gift card to the store, and wild rice or maple sugar or something physical. This is important: give a physical gift, not just a less-physical gift like money.

If all you do is a poster at the store, that won't work!

She also has great ideas for benefits that this project can bring and a CBA can encode: More education on solar energy, how it fits into the big picture of sovereignty and larger change, and how it works. And not just formal education, but fun ways for everyone to engage and see how it might matter to them, like an electronic kiosk at the store where curious kids can come up and learn more. Kids might not care about numbers of new jobs, so engage them on a ground they care about. Think also about how elders might want to engage. This is important for a shared feeling of ownership of the project, and for giving credit to “the intergenerational aspect of that shared purpose”.

Paving the way for more clean energy and technology is very important, particularly electric vehicles. She would love to see electric boats out on the lake!

She also noted that kids are very engaged with electric vehicles and clean energy, and they love that tribes are leading the curve on these things.

As she mentioned in her interview with MinnPost, it is very important for tribal nations to do business in the way that works best for them, which is not necessarily the euroamerican way of doing it. This is a key part of decolonizing the system.

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