Indian Energy Title Threatens Public Participation and Environmental Review
Congress is now considering legislation that would dramatically change how energy development decisions are made in Indian Country. Language contained in H.R. 6 (Title V) would eliminate the federal guarantees of public participation and environmental review from energy development decisions in Indian Country. The language also undercuts the federal trust responsibility to tribes by providing a waiver for the federal government of all liability from energy development. This is the same language that was considered by Congress last year.
What the House Bill Does
Currently, the Department of the Interior approves leases, rights-of-way, and agreements relating to energy development projects in Indian Country. Under the language being considered, once a tribal energy resource agreement, describing how the tribes would implement specific projects, is approved by the Secretary of Interior, no further federal action is involved. As a result, federal laws such as the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA) would no longer apply to project decisions such as the decision to issue a lease for oil and gas development.
Key elements of what occurs now under federal law that could be lost under the proposed language include: (1) an obligation to identify cultural and historic resources affected by a proposed project; (2) an obligation to address all potential impacts to both natural and cultural resources; (3) an obligation to respond to comments received; (4) an obligation to address alternatives to a proposed project (alternatives should include different levels of development, as well as a no action alternative); (5) an enforcement mechanism to ensure that mitigation proposed to limit adverse impacts of a project are implemented; and (6) meaningful recourse to the judicial system to ensure compliance with law. The proposed legislation provides for “environmental review” and “public participation,” but lacks standards to ensure that they are comparable to what is provided now under federal law.
As the U.S. Supreme Court has recently made clear, removing the Secretary of the Interior from management decisions also undermines the federal government’s accountability for those decisions. See United States v. Navajo Nation, 123 S. Ct. 1079, 1091 (2003). The federal government can, and should, take action necessary to ensure that the negotiation table between tribes and energy companies is level. The federal government also has an essential role in enforcing agreements that tribes enter into with energy companies.
What the Senate Bill Does:
While the Senate bill preserves some trust responsibility and makes some improvements to the environmental review process, it still removes the guarantees of public participation now available under NEPA. Under the Senate bill, tribes would have to develop their own environmental review process. Tribal governments would have to respond to comments received. The scope of what would be reviewed could be much narrower than what is reviewed under NEPA now. The review is limited to “significant” effects, while now under NEPA, agencies must analyze effects that may be significant. No explicit obligation exists to consider a full range of reasonable alternatives or to consider cumulative impacts. In addition, the federal courts would be unavailable to ensure compliance with the review and participation requirements.
While tribal governments deserve more control over the activities that occur on their land, it is important to ensure that development decisions adequately address the impacts on cultural and natural resources and that those affected by the decisions have a say in making them.
Contact: Sharon Buccino or Rob Perks, 202/289-6868
Fact sheet courtesy of National Resources Defense Council
