Accountability or Merely “Good Words”? An Analysis of Tribal Consultation Under the National Environmental Policy Act and the National Historic Preservation Act

Abstract

The Dakota Access Pipeline (DAPL) brought issues of environmental justice, energy development, and Native American sovereignty to worldwide attention. Central to this dispute was the definition of “meaningful” consultation within the context of the National Environmental Policy Act (1969) and the National Historic Preservation Act (1966). Many cases document the failure of the consultation process during NEPA and NHPA review, but this line of research does little to propose actions to mitigate these failures. This paper compares three projects involving Tribal governments that underwent NEPA and NHPA review and resulted in three different outcomes. Based on these projects, we find that a lack of transparency during the consultation process is a common factor among failed consultations. Additionally, we recognize that because the Administrative Procedure Act (APA) limits the court’s review power and provides agencies significant discretion in their interpretation of statutory consultation obligations, judicial review has not provided much satisfaction to Tribes. We propose that review mechanisms that grade levels of transparency and stakeholder participation in the review processes can improve accountability and the effectiveness of consultations. The Environmental Protection Agency (EPA) reviews Environmental Impact Statements (EISs) for the quality of the scientific research. Expanding this mechanism to include review of consultation and public participation would provide agencies with incentives to improve consultation practices. Ultimately, meaningful consultation conducted on a government-togovernment basis can balance development and preservation goals and help fulfill the noble intentions of NEPA and NHPA.