But many of the corporations poised to enter the clean energy market depend on practices that harm ecosystems and communities. The growing market for minerals to manufacture renewable energy technology, like solar panels, wind turbines, and lithium batteries, exemplifies this phenomenon: each of the top five largest lithium mining companies in the world have allegations of human rights abuses lodged against them. 

Environmentalists have also sounded the alarm about large-scale renewable energy projects. To build large enough solar farms to generate sufficient power to maintain current living standards, more land will be required than currently occupied by the power system. Research shows that solar farms generate 12-15 watts of electricity per square meter. In contrast, oil, coal, and natural gas generators produce 150 watts per square meter. So solar farms must occupy a minimum of ten times as much land as coal-fired, oil-fired, or natural-gas-fired power plants to generate comparable electricity. 

These construction projects generate associated ecosystem impacts. In Massachusetts, a report by Mass Audubon––a Massachusetts-based environmental non-profit––found that solar projects accounted for 25% of natural land development. Because solar panel farms occupy large territories, construction destroys habitat and displaces the wildlife that depend on the land. Meanwhile, solar installation also drives deforestation: in Massachusetts, the Commonwealth’s Department of Energy Resources estimates that construction for solar development chopped down 2,500 acres of trees.

For some, the science behind the climate crisis necessitates urgent action––even in the face of the social and ecological concerns about sourcing and development. 

James Salzman, the Donald Bren Distinguished Professor at UCLA Law School and the UCSB School of the Environment, summarized the trade-off. To evaluate the success of an environmental policy, Professor Salzman proposes considering a matrix that includes five factors: (1) improvement in the quality of the environment; (2) harm to the environment caused; (3) speed; (4) public participation; and (5) social justice/equitable distribution. 

“If speed is where you’re emphasizing, you’re going to have to give some things up,” he explained. “And that’s where it gets really difficult.” 

“it just isn’t fair to expect tribes to bear the burden on these projects.”

For indigenous communities, these trade-offs can cut deeply. Samantha Maltais, a member of the Aquinnah Wampanoag Tribe and second-year law student at Harvard Law School, summarized her perspective: “we have been giving up so much, for so long, that it just isn’t fair to expect tribes to bear the burden on these projects.”

For the Herring Pond Wampanoag Tribe, the proposed clean energy projects map onto a larger landscape of colonial displacement. In the 1600s, sixty-nine tribes composed the Wampanoag Nation. Its territories stretched from southern Rhode Island up to Massachusetts’ south shore and included Nantucket and Martha’s Vineyard, two islands off Cape Cod. The Herring Pond Tribe lived where the Pilgrims landed: in Plymouth, MA.

“We were the first native people to be assimilated by the Pilgrims,” said Chairwoman Ferretti during an interview in 2018. Conflicts over land marked the forced assimilation. In 1658, the Plymouth colony agreed to set aside three-thousand acres of land for the Herring Pond Wampanoag Tribe. During the late 1600s, 120 members of the Herring Pond Wampanoag Tribe were recorded to live there. 

But by the early 1800s, only 40 members remained. Then, in 1850, the Massachusetts state legislature further diminished the tribe’s lands, passing “Act Concerning the Plantation of Herring Pond.” The statute provided the governor with the power to appoint two discrete and disinterested parties to divide the land into lots and assign lots to members of the tribe over the age of eighteen.

“Post allotment, we just remained,”

The land allocation process reinforced inequities between the colonists and the Herring Pond tribe. “The greatest parcels were kept, in surplus, for the colonies,” explained Chairwoman Ferretti. “The tribe was given the land that [the colonists] had taken all the wood and extracted all the resources. That’s where we were allowed to remain.” Eventually, pressured to pay debts and taxes, tribe members were forced into sale of the land. In 1873, the last of the tribal lands were auctioned off.

But despite its dispossession from its ancestral lands, the Herring Pond Wampanoag Tribe persisted. “Post allotment, we just remained,” explained Chairwoman Ferretti. She noted that she, herself, was raised by an elder in her tribe in Cedarville––a village in the southeastern most part of Plymouth. “Our people really continued to live [here],” she said. 

Today, the Herring Pond Tribe maintains its meetinghouse, a white clapboard building just across the road from the shimmering expanse of Herring Pond. On the wall of the entryway, a map depicts the Wampanoag Tribe’s trails and landmarks on the southeastern shore of Massachusetts. 

Map showing Wampanoag trails and historic landmarks.

Recently, she and the rest of the tribal council negotiated a land return with the Town of Plymouth. There, Plymouth returned a 6-acre parcel that contains a pond, pine woods, and an ancestral burial ground. Chairwoman Ferretti and the tribe plan to make the path that cuts through the woods more accessible and host educational and cultural events, like Pow Wows. 

But many sacred sites remain on private property. 

“This was my whole childhood–of my mom, taking me out and about in Massachusetts, and showing me different private property that was the location of very important, culturally significant sacred sites,” said Samantha Maltais. 

Chairwoman Ferretti’s description of her tribe’s ancestral lands reinforced Maltais’ recollection. “The sacred sites are all through this region,” she explained. “A lot of these sites are Indian trails–the Megansestt Trail, the Agawam Trail–all of these trails had certain areas where there would be an encampment or there would be evidence found of aboriginal life.” 

How do we navigate that, when people don’t even recognize that tribes exist here?”

For Maltais, this poses a problem: “How do we navigate that, when people don’t even recognize that tribes exist here?” she asked. 

Today, A.D. Makepeace occupies some of these ancestral lands. Founded by Abel D. Makepeace in 1854, A.D. Makepeace proclaims itself to be the largest private landowner in eastern Massachusetts. Historically, A.D. Makepeace farmed cranberries, eventually becoming the largest cranberry supplier for the popular juice brand Ocean Spray Cranberries, Inc. 

In fact, John Makepeace––a descendant of Abel D. Makepeace and CEO of A.D. Makepeace––co-founded Oceanspray in the 1930s. In 1995, John Makepeace’s grandson––Christopher Makepeace––helmed A.D. Makepeace and retained status as the largest shareholder for Oceanspray.  The cultivation of cranberries on the ancestral lands of the Herring Pond Tribe enabled the Makepeace family to build and sustain generational wealth. 

Then, in the 1990s, the cranberry market crashed. So Christopher Makepeace started to evaluate alternative avenues for the family business. Previously, Massachusetts had cornered the cranberry market and produced barrels that sold for $75–$80 per unit. But in 1996, Wisconsin cranberry growers entered the scene. The National Agriculture Statistics Reserve forecasted Wisconsin cranberry production to reach a “record high,” up 5% from 1995 and 15% from 1994. The result? The nation experienced a cranberry surplus, and profits for Massachusetts growers dropped to $16/barrel. 

To restabilize profits from the company, Makepeace entered conversations with state and local authorities to obtain approval to develop 9500 acres of unfarmed land into residential and commercial buildings. These conversations launched A.D. Makepeace’s portfolio diversification into real estate development and management in the new millennium. Today, A.D. Makepeace owns and manages several properties, including the Rosewood Business Park, Rosewood Luxury Apartments, and several residential areas. 

But demand for these commercial properties dropped again––and A.D. Makepeace changed gears. Jim Kane, the president and CEO of A.D. Makepeace, told Wareham Week journalist Chloe Shelford that a decade-long effort to market an additional site in the Rosewood Business Park received little interest. Additionally, he said, construction costs shot up and weakened the profitability of the real estate development projects. So plans for development of a technology park on Tihonet Road and for 1,856 residential units between Wareham, MA and Carver, MA were scrapped. 

Instead, on March 15, 2021, Borrego Solar filed an Environmental Notification Form with the Commonwealth of Massachusetts that explained revised plans for A.D. Makepeace’s property: namely, replacing the proposed residential developments at 27 Charge Pond Road, 140 Tihonet Road, and 150 Tihonet Road with solar farms. This trajectory––A.D Makepeace’s transformation from a commercial cranberry grower to developer to solar project partner––showcases business acumen but also relentless pursuit of capital. Its land-use metamorphoses to serve its profit interests. 

A.D. Makepeace’s website attempts to reconcile its diverse, extractive land use with its brand as a local, environmentally-responsible corporation. 

The visual features of the website accentuate A.D. Makepeace’s connection to nature. Light earth tones paint the homepage. The banner photo features an aerial shot of a cranberry bog, and the left side of the banner is stamped with A.D. Makepeace’s logo: a line-drawing of a cranberry branch on a yellow background, with the words “from nature” printed below. The pastoral palette, use of nature-based photography, and soft font choice all ground A.D. Makepeace in the local landscape. 

Published news stories highlight its connection to the Plymouth and Wareham communities. The most recent post, published on November 28, 2022, reads: “ADM supports Old Colony YMCA.” The lede to the article celebrates a $137,000 donation that A.D. Makepeace made to the community organization. Other recent press releases include announcements about A.D. Makepeace’s donation of two all-terrain vehicles to the Carver Police Department, a $10,000 donation to the Wareham Library Foundation, and a $5,000 grant to the Wareham Tigers Cheer Team. 

Taken together, the visual features and the presentation of local philanthropic efforts locate A.D. Makepeace as a homegrown enterprise that wields its influence to benefit both the community and the environment. But the website erases the complicated history of land ownership that underlies its property holdings on the Cape. 

The page entitled cranberries on A.D. Makepeace’s website exemplifies the erasure. “Cranberries were first used by Native Americans, who discovered the berry’s versatility as a food, fabric dye, and healing agent,” the text on the page explains. The description goes on to discuss the methods that A.D. Makepeace cranberry growers today use to harvest cranberries, suggesting continuity between native traditional use and the modern agricultural practices employed by A.D. Makepeace. 

But in reality, the Herring Pond Wampanoag Tribe rejects the extractive practices of colonizers and subsequent generations. “We have been at ground zero of colonial resource extraction for over 400 years,” Chairlady Harding-Ferretti said at the “Honoring the Land” rally. “Our fish, forests, and other wildlife in Plymouth, Cape Cod, were used to serve their interests as colonists.” Interests that include, for example, profiting off the cranberry cash-crop. 

The real estate page advances the narrative of revisionist history. The description on the real estate webpage reads: “we purchased much of our land as many as 100 years ago. We are committed to development and agricultural practices that coexist in harmony with nature.” The page, notably, omits the complete history: that these lands belonged to the Wampanoag Nation for centuries before A.D. Makepeace acquired ownership. 

Statements on its construction of solar farms further its narrative of its commitment to environmental, community, and social responsibility. Discussing another recent solar project constructed on A.D. Makepeace lands, Jim Kane said: “This is yet another example of our commitment to renewable energy.” He continued: “We see this project as a model in support of the Commonwealth’s climate change objectives.” 

“This is yet another example of our commitment to renewable energy.” He continued: “We see this project as a model in support of the Commonwealth’s climate change objectives.” 

A.D. Makepeace encapsulates the branding model used by many green capitalist corporations. Presenting as responsible environmental stewards, these firms engage with exploitative practices in the name of a clean-energy future. Meanwhile, the shareholders profit from the production of energy and associated green products––while continuing to inflict harm on ecosystems and perpetuating power dynamics rooted in colonialism.

These dual and overlapping harms associated with A.D. Makepeace’s proposed solar farm developments in Wareham, MA, united a diverse coalition of activists. 

Meg Sheehan, a local attorney and self-described environmentalist, represents another key actor in the campaign to stop the construction of solar projects on A.D. Makepeace property. After a stint as an Assistant Attorney General for the Commonwealth of Massachusetts in the Environmental Protection Division, she joined the Massachusetts Water Resources Authority on the Boston Harbor clean up as a staff attorney. 

During the 2010s, she became involved in the work to stop the construction of industrial-scale renewable energy projects on the Cape. “I started getting reports from people on the ground, in these communities, who have walked and hiked these trails for their entire lives,” she said during an interview this fall, explaining the genesis of her involvement. “They were sending me pictures and telling me about all of the clear-cutting of the forest and the sand-mining.”

In 2016, she represented Wareham resident Gene Lafond in a lawsuit against Renewable Energy Development Partners, a solar installation company that planned to build a solar panel next to his property. She lost on procedural grounds, and the project moved forward. But when A.D. Makepeace and Borrego Solar unmasked plans to build solar farms on Carver and Tihonet Roads, Sheehan entered the scene again. 

She started to build a grassroots campaign against the developments, founding “Save the Pine Barrens”––statewide network of groups and individuals “taking action to protect our land and water and ensure a livable future for all life on earth.” The coalition centers its advocacy on protecting the rare ecological nature of the region. Wareham and Plymouth serve as the home to one of the last and largest remaining pine barren forests––called the “Atlantic Coastal Pine Barrens.” 

Historically, the Atlantic Coastal Pine Barrens stretched from the coastal plain of New Jersey up through Cape Cod. But extensive development, particularly in New Jersey, Long Island, and Massachusetts, reduced the size of the habitat. According to Sheehan, the development of these solar farms further threaten the stability of these forests: such projects entail clear-cutting woods, removing soil, and contaminating water supplies. 

She works closely with the Herring Pond Tribe and other area environmentalists–including Save Massachusetts Forests–to mount strong opposition to the A.D. Makepeace and other land-mounted solar projects. 

These groups never convened to game out a strategy. “We basically have just been in a reactive mode,” Sheehan explained, describing her work. “I think that’s called the whack-a-mole theory.” But the parties have been active, making use of tools that include public education events, offering comments at public hearings, and promoting petitions. 

On October 27, 2022, Save the Pine Barrens and Save Massachusetts Forests marched to Beacon Hill and delivered a petition to Governor Charlie Baker’s office that demanded a moratorium on state-sponsored subsidies for industrial scale solar projects. Currently, the Solar Massachusetts Renewable Target (SMART) program provides compensation to landowners that install large-scale or residential solar projects. 

While SMART pushes the Commonwealth toward achieving its climate goals, its structure codifies existing power dynamics. Landowners––like A.D. Makepeace––benefit directly from the program. Meanwhile, indigenous tribes that originally occupied the land are relegated to the sidelines. Limited channels of recourse exist for tribes to step in to advocate for the protection of culturally important places. 

For the Herring Pond Tribe, the issue located at the heart of its opposition to A.D. Makepeace and Borrego Solar’s projects in Wareham, MA is tribal sovereignty. 

Chairwoman Ferretti described her perspective on the issue, invoking Article I of the UN Charter that grants all people the right to self-determination. 

“Linked to that right of self-determination, we have a right to freely pursue our economic, social, and cultural development,” she explained. “For our tribe, and all tribal nations, our self-determination as a people depends on fulfilling these [land stewardship] responsibilities.”

Chairwoman Ferretti named free, prior, and informed consent as a cornerstone element of tribal sovereignty. Free, prior, and informed consent is a standard that requires indigenous peoples to give or withhold approval for any project that may affect them or their territories. 

The United Nations Declaration on the Rights of Indigenous People––a non-binding, international human rights agreement––included a clause that pertains to free, prior, and informed consent. The clause directed states to consult and cooperate in good faith with tribal nations on matters that relate to tribal communities. The United States adopted the declaration in 2010 but failed to codify its provisions into domestic law.

Rather than consent, some federal statutes include a tribal consultation requirement. But the procedures fail to meaningfully offer paths for tribal engagement. “At tribal leader conferences, one of the first things that people complain about is the federal failures of the consultation process,” Samantha Maltais explained. “Because [the process] really can be: “here’s this email about [our project. You have two hours. Other than that, we’re going to go ahead.” 

In fact, a recent study by the U.S. Government Accountability Office found that agencies rarely fulfill the mandates of federal statutes that do require agencies to consult with tribal nations. To prepare the report, the office interviewed 57 tribes and solicited comments from 100 tribes. 67 tribes reported concerns about agencies initiating consultation at late stages in infrastructure project development. 

The controversy surrounding the construction of the Dakota Access Pipeline typifies the systemic issues with agencies’ implementation of tribal consultation requirements for energy projects. In 2014, Texas-based corporation Energy Transfer Partners proposed to construct a pipeline that would slice through property north of the Standing Rock Sioux Tribe’s reservation. The proposed pipeline would transport 450,000 barrels of crude oil per day. 

The pipeline’s path affected both areas of environmental and spiritual importance to the Standing Rock Sioux Tribe. The proposed pipeline tunneled under the Missouri River at Lake Oahe–a water source upon which the tribe relies for its drinking water. Additionally, the  surrounding region contained sacred sites and ancestral burial grounds. 

Pursuant to Section 106 of the National Historic Preservation Act, the Army Corps of Engineers was required to consult the Standing Rock Sioux Tribe. But the Corps fast-tracked the permitting process, only approaching the tribe at the end of the process when its approval seemed to be guaranteed. The Corps never presented plans to the tribe in the initial phases of the permitting process. 

The Standing Rock Sioux Tribe filed an action for a preliminary injunction to halt the construction of the pipeline, citing violations of the tribal consultation requirements of the National Historic Preservation Act. Meanwhile, the tribe launched a campaign to stop construction, using tactics that included runs, horseback rides, and marches. Climate activists and native peoples from across the country traveled to the reservation to join the tribe and camp out in protest of the project. 

Cracking under the pressure, the Obama administration halted construction of the pipeline. But after the 2016 election, the Trump administration reinstated the requisite approvals. Today, the Dakota Access Pipeline transports up to 570,000 barrels of oil per day. 

The failure of agencies to properly execute the statutorily-mandated tribal consultation process for the Dakota Access Pipeline exemplifies the prioritization of corporate energy interests over tribal interests. 

The Herring Pond Tribe’s experience with A.D. Makepeace/Borrego Solar suggests that this pattern––in the absence of substantial and meaningful reform––is set to repeat itself in a clean energy context. 

Located on state-owned land, the A.D. Makepeace/Borrego solar farm plans are not subject to the admittedly weak protections of tribal consultation. Rather, the Massachusetts Environmental Policy Act (MEPA)––a state-specific version of the National Environmental Policy Act––governs the approval process. Within the MEPA framework, the Massachusetts Historical Commission evaluates proposals to determine whether projects will damage historic properties. 

The Massachusetts Historical Commission controls which parties are allowed to participate in the process. The relevant rule––codified in the Code of Massachusetts Regulations–provides that interested parties may participate “whenever the state body, project proponent, and MHC agree that active participation of an interested party will advance the objectives of the consultation process.” 

The procedure limits public participation and––further––vests the Massachusetts state government and the “project proponents” (typically, developers like A.D. Makepeace and Borrego Solar) with the power to gate-keep the approval process. These regulations entrench inequitable distributions of power, prioritizing business and government interests over tribal concerns. 

“Well, I try to not point fingers at Mass[achusetts Historical Commission],” Chairwoman Ferretti said. “But I think that these sites should be held sacred, as they are to us. I think there should be a revamp of how these permits are allowed.” Revisions of these regulations to incorporate principles of free and prior informed consent of indigenous tribes for projects that trigger MEPA review could offer a starting point. 

Such empowerment of tribes in decision-making related to ancestral lands does not mean a reduction in speed for clean energy infrastructure build out. In fact, tribal nations have implemented community and utility-scale solar projects across the United States. Rather, it’s about self-determination: enabling tribes to make decisions about their land, water, and culturally significant sites. 

The issues of indigenous displacement––resurfaced by the construction of clean energy projects like A.D. Makepeace and Borrego Solar––underline the need for systems that enable greater tribal sovereignty. 

“But I think that these sites should be held sacred, as they are to us. I think there should be a revamp of how these permits are allowed.”

The Pilgrims’ displacement of the Herring Pond Tribe from its land set off colonialist extractive practices in the West. Now, these same extractive practices––reproduced at a global scale––have pushed the planet to the brink. Granting greater sovereignty by implementing consent-based procedures for land-use offers redress for colonizers’ harms. 

And, according to Samantha Matais, the climate could also benefit.

“I think that tribes are the most open to green energy. We’re the ones trying to preserve things for future generations,” she said. “So the idea is that you rely on the tribes to understand the urgency. Then, with an investment in the future and traditions of cultural resilience, we are the ones at the steering wheel for clean energy.” 

From The [F]law:

• Maggie Hagen, Take Their Children, Then Their Land
• Sydney Lang, The (De)construction of Roads in Canada
• Gabrielle (Gabe) Crofford, Selling Sovereignty: How Corporations Used Tribal Sovereign Immunity to Evade Regulation and Exploit Consumers
• Amelia Keyes, Seeking Environmental Justice in the U.S. Virgin Islands: St. Croix’s Battle with an Oil Refinery that Refuses to Die

From The Systemic Justice Journal:

• The Moral of the Marketplace: Profit – Big Oil’s Prioritization of Profit Over Environmental and Human Safety