What can the Dakota Pipeline protests tell us about existing tribal consultation requirements?

Sacred Stone Camp, North Dakota.  Photo: Joe Brusky

When the federal government announced in September that it would be withdrawing permits issued for the Dakota Access Pipeline, it was a huge win for Indian tribes and environmentalists who were protesting the construction of the pipeline across sacred sites and sensitive ecosystems.  But the government's announcement also called for a revision to federal policy as it concerns tribal consultation.  Specifically, the government requested feedback and dialogue on two questions:

(1) Within the existing statutory framework, what should the federal government do to better ensure meaningful tribal input into infrastructure-related reviews and decisions and the protection of tribal lands, resources, and treaty rights?  

(2) Should new legislation be proposed to Congress to alter that statutory framework and promote those goals?

These are fairly open-ended questions, and its fair to wonder if the administration will have enough time to consider responses, formulate a policy response, and implement it in time for this process to have a meaningful impact before the administration change-over in January.  Nonetheless, both questions merit some thought.  I'll tackle the first question in this post.  

Before thinking about how consultation can be improved within the existing framework, we need to know what the existing framework is. There are several statutes that require consultation before proceeding with certain government actions. Here are the most prominent:

The National Historic Preservation Act (which was the consultation statute at issue when the Standing Rock Sioux sued to block the Dakota pipeline from moving forward) requires consultation with tribes that attach religious and cultural significance with certain lands and properties.

The Archaeological Resources Protection Act requires consultation before the government can permit archaeological excavation on tribal lands.

The American Indian Religious Freedom Act provides tribes with access to sacred sites and objects, and allows them to conduct traditional rites.  

The Native American Graves Protection and Repatriation Act requires consultation with tribes regarding the treatment and disposition of human remains and sacred objects.

In addition to these statutes, federal agencies are bound by Executive Order 13175, "Consultation and Coordination with Indian Tribal Governments."  The Executive Order was established in 2000 "in order to establish regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications."  In 2009, President Obama directed federal agencies to develop a plan of action to implement the directives of EO 13175.  The Department of the Interior's plan can be seen here, for example.  

Many of these consultation statutes, regulations, and policies are fairly open-minded and receptive to consultation best practices.  The Department of the Interior's policy, for example, calls for consultation reporting and training, regular meetings with tribes, the appointment of tribal officers within the agency and sub-agencies, and opportunities for tribal consultations and dialogue throughout the administrative rule-making process.  Other agencies have similar policies and procedures (see the Department of Transportation's policy here).  

So it seems there are numerous avenues for tribal consultation on federal agency actions.  There are a number of statutory directives, as well as tailored tribal consultation plans for each agency.  Why then, is tribal consultation still challenging?  

One reason is that there is ambiguity with respect to which actions "trigger" consultation.  It is obvious that the US Army Corps of Engineers will consult with a tribe if a dam the Corps is operating will be modified in a way that will flood tribal land.  But what if water levels in a reservoir operated by the Corps are modified in a way that may negatively impact salmon, a species fished by a local tribe?  Would that type of activity trigger consultation?  It's not always clear.  And because agency rule-making or government operations often require multiple layers of bureaucracy and approvals, agencies may be tempted to err on the side of expediency rather than consultation. 

An additional challenge is that there are no uniform standards for what constitutes satisfactory consultation.  Often consultation may consist of an invitation to submit comments on a proposed agency action.  Hardly the round-table dialogue many envision when they think of consultation.  The agencies have to balance their duty to consult with the demands on their time and resources; they seek to satisfy their obligations while moving the ball forward.  

Finally, the requirement to consult typically does not carry with it any obligations to undertake any particular final decision or agency action.  For example, while the National Historic Preservation Act requires extensive consultation, ultimately it does not mandate that the permitting agency in question take any particular measures to protect historic resources.  

When the Standing Rock Sioux Tribe sued to block construction of the Dakota Access Pipeline, it claimed that the Army Corps of Engineers had not fulfilled its National Historic Preservation Act obligations because the Corps had not executed a "programmatic agreement" with tribal representatives.  A programmatic agreement is an agreement negotiated with the tribes that governs an agency's actions over a particular activity, so as to reduce impacts on sensitive resources.  The District Court's opinion noted that the Corps had executed such agreements in the past, but its failure to execute one for the Dakota Access Pipeline was not a problem because programmatic agreements are not mandatory.

These issues are not easily remedied, but lessons learned from the Dakota Access Pipeline and other cases, as well as similar provisions and procedural requirements of other statutes, can shed light on some potential fixes to federal-tribal consultation requirements.  My thoughts on those fixes are forthcoming.  

Pope Francis and Climate Change, Ctd

Photo: European Union 2013 - European Parliament

Fresh off his ground-breaking Encyclical on humanity and the environment two months ago, Pope Francis brought sixty of the world's mayors to the Vatican yesterday to discuss "Modern Slavery and Climate Change: the Commitment of the Cities."  The title of the meeting itself is revealing, as the Pope signals his intent to focus on the interconnected forces of human trafficking and climate change, and the crucial role cities play in combating both.  The climate action movement has struggled to gain widespread acceptance in part because the challenge is so complex and diffuse, which makes the Pope's approach a clever way to portray climate change as both a human and local issue.  The Pope was express in this interpretation, rejecting the public and media's interpretation of his encyclical Laudato si' as a strictly environmental mandate:

Referring to his recently published encyclical “Laudato Si’”, Pope Francis made it quite clear that the document is not an encyclical on the environment.  It’s a social encyclical – he explained -  because the state of the environment is directly and intimately linked to the life and wellbeing of humankind.

Engaging the world's mayors is vital, as cities emit 75% of global GHG emissions, while mayors often enjoy the legal and political powers over transportation, urban planning, and economic development that can make meaningful climate mitigation impacts.  The meeting included US mayors from New York City, San Francisco, Boston, Minneapolis, Seattle, Portland, New Orleans, Boulder, Birmingham, and San Jose.  Many of them are already taking steps to green their cities, but no doubt the Pope's leadership provides political capital to them and others looking to muster support for climate action.  

The conference was interesting as well because it hints at where the Pope will focus the Vatican's efforts amid the many objectives outlined in Laudato si'.  Human trafficking, forced migration, and slavery have not previously played a prominent role in the climate change debate (or vice versa), but Pope Francis is doing his utmost to frame climate change as a social issue with particular impact on the poor and marginalized.  The mayoral declaration coming out of the meeting stated in part:

As mayors we commit ourselves to building, in our cities and urban settlements, the resilience of the poor and those in vulnerable situations and reducing their exposure to climate-related extreme events and other economic, social and environmental shocks and disasters, which foster human trafficking and dangerous forced migration.

Addressing wealth disparities will likely be a huge challenge for negotiators at the Paris Climate Treaty meetings in December, as countries haven't agreed on how much responsibility industrialized countries should take in potential climate deals.  But in focusing on the world's cities and human trafficking, Pope Francis is driving the discussions downward in the governance framework, making sure social and economic inequality is addressed not only on the national and global level, but on the individual and local level as well.

"Everything is Connected" - Thoughts on the Environmental Encyclical of Pope Francis

Photo: Aleteia.

Laudato si' is the second encyclical of Pope Francis, and the first that is considered entirely his work.  Encyclicals are letters written by the Pope intended to provide authoritative guidance to bishops (or occasionally a wider audience) on a particular question or issue of high importance, considered significant in part for their rarity.  Pope Francis' predecessor, Benedict XVI, wrote three in his eight years of papal service, and before him John Paul II wrote 14 in his 27 years.  Encyclicals are not produced lightly, and signal that the issues addressed are of high priority to the Catholic Church.

That Laudato si' is largely focused on the environment and its degradation is therefore a watershed moment for international environmental lawmaking and the human-natural relationship in general.  So far many (examples here, here, and here) are pigeon-holing the encyclical as a manifesto on climate change, and that's unfortunate.  I've written about the overshadowing effect climate change has on other environmental issues (see here and here), and Laudato si' appears to be falling victim to that dynamic.  In reality the encyclical is much broader, questioning fundamental assumptions about human society and our relationship with the earth - and ourselves.  In particular, Pope Francis expresses skepticism in humanity's collective trust in technological progress, free markets, and utilitarian materialism.  Give the Pope credit for one thing at least: he's not afraid to ruffle some feathers.

Interspersed with these weighty pronouncements are some environmental law and policy positions I find significant in part because Pope Francis eschews the typical platitudes found in many environmental advocacy documents, instead honing in on some very specific prescriptions.  

Take water law for example.  One of the fundamental tensions in water management is a seeming contradiction between privatizing water resources and taking advantage of market fundamentals on the one hand, and the belief that water is a common good and a human right on the other hand.  Jewish and Islamic texts generally perceive water as a common good (Sharia literally means "the way to water").  Here is Pope Francis' position:

Even as the quality of available water is constantly diminishing, in some places there is a growing tendency, despite its scarcity, to privatize this resource, turning it into a commodity subject to the laws of the market. Yet access to safe drinkable water is a basic and universal human right, since it is essential to human survival and, as such, is a condition for the exercise of other human rights.

A human right to water has been advocated for by many in the last decade, pushing back against perceptions (such as the Dublin Declaration in 1992) that water is an economic good.  Unfortunately a human right to a finite natural resource is easier to pronounce than operationalize, and few who advocate for a human right to water have come up with a policy that reconciles universal water rights with the realities of water scarcity.  The Pope offers one solution, at once obvious and elusive: wholesale lifestyle change and a rejection of practical relativism.  "A misguided anthropocentrism leads to a misguided lifestyle."  In other words, environmental change can happen only through self-change and a less consumerist way of life.

Contemporary notions of democracy are similarly challenged by the encyclical.  It is the short-term thinking of politicians and their constituents that prevents the long-term thinking prudent natural resources management requires in the first place.  Intergenerational equity is not a new concept, but receives little support from status quo institutions.  Here Laudito si' uses it not only to justify long-term thinking, but also to reject the cost-benefit paradigm that is prevalent in even liberal environmental circles:

Is it realistic to hope that those who are obsessed with maximizing profits will stop to reflect on the environmental damage which they will leave behind for future generations? Where profits alone count, there can be no thinking about the rhythms of nature, its phases of decay and regeneration, or the complexity of ecosystems which may be gravely upset by human intervention. Moreover, biodiversity is considered at most a deposit of economic resources available for exploitation, with no serious thought for the real value of things, their significance for persons and cultures, or the concerns and needs of the poor.

Here I think the Pope gives too little credit to the potential of market forces to internalize externalities.  Valuation of ecosystem services is challenging, to be sure, but methodologies are being improved upon every day.  At the end of the day, is internalizing external costs a more difficult undertaking than adopting wholesale lifestyle changes?  Certainly there is value in having a better understanding of the value ecosystems provide.

Ultimately the encyclical acknowledges the role and need for environmental laws, but remains deeply skeptical of the institutions in place to enforce them:

Whether in the administration of the state, the various levels of civil society, or relationships between individuals themselves, lack of respect for the law is becoming more common. Laws may be well framed yet remain a dead letter. Can we hope, then, that in such cases, legislation and regulations dealing with the environment will really prove effective? We know, for example, that countries which have clear legislation about the protection of forests continue to keep silent as they watch laws repeatedly being broken.

To me that's not a rejection of environmental law as much as an acknowledgement that environmental laws are a necessary but not sufficient condition for a healthy environment.  But the encyclical starts to contradict itself some by promoting the principle of subsidiarity (the idea that governance should be decentralized to take advantage of local knowledge and conditions) while at the same time rejecting policies that may be effective in one jurisdiction or another.  "There are no uniform recipes, because each country or region has its own problems and limitations." Yet the Pope rejects carbon credits because they "may simply become a ploy" for continued degradation.  They may, or they may not.  But it seems to me that local experimentation should be encouraged, and if political actors can compromise on a cap-and-trade program, well, let's see what they can do.  

At the end of the day, Laudito si' is a remarkable document for its scope and ambition.  Not only does it elevate "the environment" to a higher position on political priority lists around the world, it frames a wide variety of seemingly disparate global challenges through the lens of environmental degradation.  Laudito si' is being hailed as a climate change piece, but in his first major encyclical, Pope Francis has done much more than advocate for climate change action.  Laudito si' questions fundamental assumptions about human social order and our relationship with both the earth and ourselves.