National Tribal Environmental Council

The U.S. Environmental Protection Agency (EPA) published its consultation policy in the Federal Register on December 15, 2010, opening a 60-day comment period that ended on February 16, 2011. The EPA first adopted its Indian Policy in 1984 and EPA Administrators through the succession of presidential administrations have reaffirmed this policy. EPA has a well-established tribal program infrastructure, and built its new policy on that existing framework.

Noteworthy provisions of the proposed EPA tribal consultation policy

1. The definition of Indian tribe is focused on the sovereign tribal entities specifically identified in the Federally Recognized Tribes List Act of 1994;
2. In the notification phase of consultation, EPA will notify tribes early in the process to allow for meaningful input that can be considered prior to EPA deciding whether, how, or when to act on the matter under consideration;
3. Tribal officials may request consultation in addition to activities that EPA may determine are appropriate for consultation;
4. EPA will provide formal, written feedback to tribes on consultation to explain how their input was considered in the final action;
5. Tribal consultation advisors, serving as points-of-contact, will be designated for the national program offices and regional offices;
6. Each national program office and each region will prepare a semi-annual agenda for matters appropriate for consultation and a brief summary of consultation that has occurred; and
7. EPA will submit an annual progress report to the Office of Management and Budget on the status of the consultation process and actions, and provide any updates to the Policy.

Clarifications needed

First, the provision for a periodic national consultation meeting lacks sufficient detail. EPA should consider more explanation, and possibly outline issues that might trigger a national meeting, and include relevant factors, such as location and accessibility for tribal participation. A national meeting after the consultation policy becomes final would be a prime time to convene. In lieu of a national meeting, regional meetings may be appropriate and might encourage more participation from tribal officials. Second, in the guiding principles, EPA “recognizes the need to be responsive to the environmental justice concerns of non-federally recognized tribes, individual tribal members, tribal community-based/grassroots organizations and other indigenous stakeholders.” This principle may seem to be consistent with the Indian Policy, but there could be unforeseen ramifications. One scenario is that EPA could be drawn into internal tribal conflicts if individual tribal members oppose tribal government actions. What would EPA do? EPA also expressed in another guiding principle that it “recognizes and works directly with federally recognized tribes as sovereign entities with primary authority and responsibility for each tribe’s land and membership…”

Conclusion

Overall, the Proposed Final Policy on Consultation and Coordination with Indian Tribes is a good framework. EPA struck a good balance with sufficient detail and guidance, yet also acknowledges that it is not possible to have one single formula for consultation with sovereign tribal entities. In the final round of comments, EPA may make revisions, but at this point, substantial changes are not anticipated. Policy implementation will be the next phase, and EPA will be expected to make tribal consultation advisor designations, develop semi-annual consultation agendas, and perhaps announce a national consultation meeting. In the next year, we will have time to work with EPA as it rolls out the new consultation process.w