National Monuments, Arctic drilling, DAPL highlight final acts of Obama administration

The Road Canyon Citadel in the 1.35 million-acre Bears Ears National Monument in southeastern Utah.  Photo: BLM.

As expected, the final "lame-duck" months of the Obama administration provided several bombshell announcements regarding American public lands and natural resources.  First, the US Army Corps of Engineers denied the permit needed to complete the Dakota Access Pipeline (DAPL).  The denial comes on the heels of the federal government's Sep 2016 announcement that it would be withdrawing the permit in order to consult with affected tribal groups.  Apparently, the consultation was effective in convincing the Corps to deny the permit (though skeptics claim the meetings were pretext for a political decision) and initiate another round of environmental review instead.  There is a good-to-very good chance that the Trump administration will instruct the Corps to issue the permit, but even if that is the case, the permit denial sets precedent for tribal consultation in a more meaningful way.  Perhaps more importantly, the victory for tribes and environmental groups will almost surely inspire and encourage more pipeline protests in the future, having been successful in blocking two consecutive high-profile pipeline projects (DAPL and Keystone XL).  

Second, the Obama administration invoked the Outer Continental Shelf Lands Act of 1953 to set aside wide swaths of the Arctic off-limits for off-shore drilling.  The American portion of the Chukchi Sea will be entirely off-limits, while most of the Beaufort Sea will be as well.  In a corresponding move, Canada declared a freeze on drilling in its portion of the Artic seas.  The OCSLA allows a President to declare portions of the continental shelf off-limits for oil and gas exploration, though up to this point presidents had put a timetable on a drilling moratorium.  Obama's declaration puts these portions of the Artic off-limits "indefinitely."  Trump has appointed notable oil and gas industry supporters to his cabinet (including the Secretaries of State and Energy, as well as the Administrator of the EPA), and it seems clear his administration will not be fond of these drilling withdrawals. But there's not much precedent to reverse a decision of this nature, or at least not unilaterally (the Republican-controlled Congress could always amend the OCSLA).  If reversed, the decision would almost surely be forced to defend itself in the federal courts.

Finally, President Obama established two new National Monuments.  The 1.35 million-acre Bears Ears National Monument in Utah, and the 300,000-acre Gold Butte National Monument in Nevada.  The Antiquities Act of 1906 authorizes the President of the United States to establish National Monuments as part of the federal public lands system.  Devil's Tower in Wyoming was the first such monument established.  Over time, the Act has been used by presidents to establish substantial areas of land as federally protected.  In total, President Obama has established 29 National Monuments, of which Bears Ears and Gold Butte are his final two.  The move was met with praise and celebration from environmentalists, and scorn and disdain from drilling/grazing interest groups.  Like the OCSLA drilling withdrawals, there is little authority for a president to reverse a National Monument designation (in fact it has never been done before).  But, with a Republican-controlled Congress, several of whom are outraged by the new monuments, there is talk of amending the Antiquities Act or repealing it altogether.  That would be a drastic move, but not altogether surprising if Congress wants to consolidate power over disposition of public lands.

All of this brings us now to the Trump Administration.  President Trump (sworn into office today) will oversee America's public lands and natural resources at a very interesting time.  Climate change continues to dominate debate and negotiations within the international community, the fracking boom is continuing apace domestically, and tensions between public vs. private land supporters remain high.  Meanwhile, with a Republican-controlled Congress and White House, the stage is set for their agenda to dictate the terms of these conflicts.  Already Congress is considering bills that would overhaul the balance of power between Congress and administrative agencies.  It is clear, however, that Obama-era activists will not be backing down from these political and legal battles.  

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.  

Federal Pipeline Policy pivots toward tribal and environmental interests

Sacred Stone Camp in North Dakota and the Standing Rock Sioux Reservation have become the staging area for protests along the proposed Dakota Access Pipeline route.  Photo: Joe Brusky.

Last November, the Obama Administration denied federal approval of the Keystone XL pipeline, finding that approval of the pipeline was not in the US' interests.  It largely did so because Keystone XL had become THE symbol of environmental resistance.  Previously, energy infrastructure projects had not been particularly controversial.  Even Keystone XL's impacts (both environmental and economic) were overblown by vehement opponents and supporters of the project.  I wrote then that the federal government's rejection signaled a pivot toward environmental protection, especially as the timing of the rejection came just before world leaders met in Paris to negotiate a major climate agreement.  It also represented a major victory for environmentalists, and the power of environmental protests.

The history of Keystone XL has become more salient in recent weeks, as protests over the proposed Dakota Access Pipeline (DAPL) intensified.  DAPL would carry oil from western North Dakota oil fields to an existing pipeline network in Illinois.  Along the way, however, the proposed route crosses federally controlled waterways, as well as sacred tribal lands and burial sites.  The Standing Rock Sioux Tribe, in particular, is also concerned that an oil spill might contaminate their water supplies.  But protests over the pipeline have evolved into a larger battle regarding tribal and environmental interests, on the one hand, and energy security on the other hand.  Other tribes are standing in support of the Standing Rock Sioux, as are scores of celebrities, politicians, environmentalists, and other activists.  Protests have taken place all over the country.  It is possible that these protests and shows of support for blocking the pipeline would have taken place regardless, but it seems more likely that the anti-Keystone XL movement has provided a model for citizens to use political pressure to block pipeline construction.

The legal process took an interesting turn this week, as the D.C. District Court rejected the Standing Rock Sioux Tribe's request for an injunction.  The tribe claimed that, because it was not consulted about the DAPL (as is required by the National Historic Preservation Act), construction of the pipeline would lead the tribe to suffer irreparable harm worthy of a preliminary injunction.  The court appeared sympathetic to the tribe's concerns, opening its decision thusly: "Since the founding of this nation, the United States’ relationship with the Indian tribes has been contentious and tragic."  But ultimately the standard one must meet to be granted a preliminary injunction is a very high one.  As the court noted, "'[I]njunctive relief' is 'an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief'" [citing Winter v. Nat. Res. Def. Advisory Council].  The tribe didn't meet that standard, according to the court, and the injunction was denied.

The legal defeat notwithstanding, pipeline protesters received a significant victory immediately after the court's decision was released.  The US Department of the Interior, Department of Justice, and Army Corps of Engineers issued a joint statement that federal approval of the DAPL would be suspended pending further review.  In addition, the federal government invited tribes and the general public to participate in consultations regarding tribal lands and resources, and the potential need for new legislation.  The joint statement calls into question the viability of the DAPL moving forward - without federal approval, the pipeline will not be able to cross major waterways blocking its path.  The statement represents a remarkable victory for tribes, environmentalists, and pipeline protestors.

This is, therefore, the second major pipeline protest breakthrough in less than one year.  One of three developments is likely true: either the federal administration is pivoting toward tribal and environmental interests, or the political pressure mounted by pipeline protestors is increasingly influential, or both.  The administration's support for tribal and environmental interests can be measured in other ways over the past few years, and that support is likely a factor in this case as well.  But the influence of protest movements in shaping energy politics is undoubtedly a major factor as well.  As mentioned, these types of infrastructure projects rarely took center stage in the past.  Now, they are doing so with regularity.  It will be interesting to see how the DAPL legal and political processes play out.  It will also be interesting to see if more pipeline protests emerge in the near future.  If the Keystone XL and Dakota Access Pipelines are any indication, high-profile pipeline protests may become the new normal.