Council on Environmental Quality seeks comments from Indigenous People & Tribes on updating NEPA regulations

The White House Council on Environmental Quality (CEQ) is accepting comments on proposed revisions to the rules implementing the National Environmental Policy Act (NEPA). The deadline for comments is fast approaching - Friday, September 29th.

Why is NEPA important to Tribes & Indigenous People? Over 80 federal agencies (BIA, EPA, US Fish and Wildlife Service, to name just a few) must comply with NEPA and so the regulations matter when it comes to the priorities of Indian Country: broadband, fee-to-trust applications, water infrastructure, cultural resources, and treaty rights, are just some of the many areas that have the potential to be affected.

NEPA’s main goals are to ensure that federal agencies fully study and disclose the environmental and health effects of proposed projects and inform and involve impacted communities in federal decision- making.

NEPA may affect Tribal interests and priorities in both positive and negative ways depending on the type of project proposed and other factors. The NEPA process helps ensure that issues important to Tribes are disclosed and that Tribal perspectives are considered in agency decision-making which has at times resulted in the improvement or even defeat of damaging projects. At other times, however, the NEPA process has hindered Tribal sovereignty, treaty rights and self-determination.

CEQ is looking for input on how NEPA impacts Tribes and Indigenous People, and how the rule can be improved. Some areas to consider include:

• Do Tribes have adequate resources to respond to the requirements of NEPA and how does the federal government propose to alleviate any burden placed upon Tribes?

• How can the process for meaningfully involving Tribes be improved?

• Is NEPA’s “cumulative impacts” analysis sufficiently meaningful and does it look far enough into the future to protect culture and the well-being of future generations?

• CEQ also seeks Indigenous input on whether and how to define Indigenous Knowledge and on other issues specific to Tribal interests (see rulemaking highlights below).

Some key provisions in the proposed rule that may be of interest to Tribal Nations and Indigenous communities include:

Tribal Sovereignty.

• Excludes from the definition of “major federal action” – and therefore the requirement to complete an environmental review process – activities or projects approved by a Tribal Nation that occur on or involve Indigenous lands when the activities involve no federal funding or other federal involvement.

• Clarifies that Tribal agencies may serve as joint lead agencies.

• Ensures that federal agencies respect and account for, as determined appropriate by Tribal Nations, the unique knowledge that Tribal governments bring to the environmental review process, by codifying that the “special expertise” provided by cooperating agencies includes Indigenous Knowledge

Environmental Justice.

• Requires that environmental review documents include environmental justice analysis and that agencies mitigate impacts so that government decisions avoid undue and adverse effects on communities with environmental justice concerns.

• Requires agencies to identify and assess alternatives to proposed projects which address adverse health and environmental effects that disproportionately affect communities with environmental justice concerns.
  

Threshold Determinations.

• Restore, with some modification the process that federal agencies have long used to evaluate the significance of a proposed action’s effects, which in turn informs the appropriate level of analysis. For example, the proposal would confirm that agencies should consider, among other things, an action’s proximity to unique or sensitive resources or to vulnerable communities.

• CEQ would expand the considerations guiding an agency’s analysis of an effect’s significance to include the degree to which the action may have disproportionate and adverse effects on communities with environmental justice concerns and whether an action may impact reserved tribal treaty rights.