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EcoRobeson Joins Enviro Groups in Challenging Pipeline Decision
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environmental justice
Fletcher: “New Divisions in Indian Country over Energy Justice”
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New Divisions In Indian Country Over Energy Justice
By Matthew Fletcher, Michigan State University College of LawMay 2, 2017, 11:35 AM EDT
| Matthew L.M. Fletcher |
The new administration’s undoing of the Obama administration’s clean environment rules, especially hydraulic fracking regulations and the Clean Power Plan, portend great division in Indian country as the few dozen energy tribes, whether they like it or not, stand apart from the remaining tribes.
Energy tribes, such as the Southern Ute Indian Tribe, had sued the government to undo the Obama Administration’s fracking regulations on the clever and unifying claim that the government pushed through the regulations without consultation with Indian tribes required under various federal statutes and the general trust relationship. Virtually every Indian tribe can support that claim. In fact, a key legal argument against the Dakota Access pipeline, for example, involved a lack of consultation, a claim backed by the Obama administration’s January 2017 tribal consultation report.
Secretary of the Interior Ryan Zinke quickly acted after the president’s momentous rollback of environmental protections. A new initiative creates a Royalty Policy Committee consisting of federal, state, industry, public interest and tribal representatives to advise the secretary on the fair market value of mineral and energy resources. That tribal representatives are included in this committee may salve some tribal leaders who worried the new administration would not continue the federal government’s consultation practices.
But most Indian tribes are not energy tribes, and most Indian people are not supportive of natural resources extraction. Energy tribes such as Navajo and Hopi are intensely split over resources extraction, with influential organizations such as Diné CARE (Citizens Against Ruining our Environment) organizing and litigating against reservation resource extraction. Other tribal communities have been all but ruined by intense resource extraction, exemplified by the Mandan, Hidatsa and Arikara Nation on the Fort Berthold Reservation (MHA nation). Just a decade ago, as prices soured, fracking exploded on the reservation. So did drug and violent crimes, human trafficking and horrific impacts on sacred lands. The New York Times strongly suggested that the tribal council was wracked with corruption once inundated with cash.
And, of course, Indian tribes in the Great Plains, the Great Lakes and the Pacific Northwest are leading the charge against pipeline construction, fish habitat destruction and other threats to water and the environment. Indian people and their allies have formed nonprofit groups like Honor the Earth to challenge any threats to reservation environments.
With so many tribes, groups and Indian people aligned in favor of environmental justice, the national organizations that normally lead the charge of a unified Indian country against attacks on tribal sovereignty, especially the National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF), are hamstrung because they cannot side against any one Indian tribe against another. In the event Congress and the Administration champion a significant alteration in the federal trust relationship that would benefit energy tribes’ ability to extract resources, as has been contemplated in recent years, NCAI and NARF would likely have to sit out the debate if non-energy tribes objected to the proposals. Imagine if the MHA nation or another energy tribe intervened in the in the Dakota Access pipeline litigation on the side of the federal government or the pipeline construction company, for example. Both organizations might have to step aside on the political and legal fronts.
Energy tribes have a compelling argument about their untapped resources. Navajo, Hopi, Crow, Southern Ute and many others have been the victims of decades, if not centuries, of exploitation by the United States and private enterprise. For more than a century, the U.S. Department of the Interior stripped Indian reservations of coal, timber and other resources with little or benefit to Indian tribes or Indian people. Supreme Court cases like Tee-Hit-Ton Indians v. United States, United States v. Sioux Nation, and United States v. Navajo Nation arose from either the straight out confiscation of Indian resources or the exploitation of those resources for pennies on the dollar of their fair market value. It is only natural that energy tribes desire to profit from their own resources rather than others after being exploited for so long.
But the bitter internal struggled permeating some energy tribes now could easily expand to national intertribal conflicts. The Native Village of Kivalina’s failed federal court suit seeking damages from major fossil fuel extraction businesses portends those greater conflicts. Kivalina is one of many Indian communities in Alaska and elsewhere severely impacted by climate change — it is literally falling into the sea as ocean levels rise and winter storms become more dangerous. Other tribes are seeing fewer fish and game habitats due to climate change impacts. If energy tribes become ever greater players in resource extraction, it is merely a matter of time before environmentally oriented tribes begin to challenge them in court and in politics.
If so, then we might see a terrible battle over competing claims to tribal sovereignty — tribal energy against tribal environments. The opening shots in that battle are already being fired in Congress. In February, Rep. Markwayne Mullin, a Cherokee Nation member representing Oklahoma District 2, berated Standing Rock Sioux Tribe council member Chad Harrison over the tribe’s opposition to the Dakota Access pipeline. In March, Raul Grijalva, representing Arizona District 3, asserted that the Trump administration’s energy policies stoke the energy industry’s “fundamental lust” for tribal and public resources and lands. It may be just a matter of time before congressional rhetoric turns more to action, and tribal communities line up against each other.
Matthew L.M. Fletcher is a professor of law at Michigan State University College of Law. Fletcher is the primary editor and author of the leading law blog on American Indian law and policy, Turtle Talk.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Press Release: National Wildlife Federation Notice of Intent to Sue
National Wildlife Federation to Sue Pipeline Safety Administration to Protect Communities, Wildlife from Oil Spill in the Great Lakes
ANN ABOR, MICH. (February 22, 2016)—The National Wildlife Federation today officially sent a notice of intent to sue the federal agency largely responsible for overseeing oil pipeline safety. The notice asserts that the Pipeline and Hazardous Materials Safety Administration (PHMSA) had no authority to authorize the transport of oil through pipelines that run through the Straits of Mackinac and navigable waters in Michigan’s Upper and Lower Peninsulas. PHMSA also incorrectly authorized the transport of oil through pipelines on land without assessing the impacts on the environment, fish, and wildlife, including the impacts on endangered and threatened species, such as the Piping Plover and Kirtland’s Warbler.
The National Wildlife Federation is asking PHMSA to comply with the law within 60 days by fully assessing and publicly disclosing the environmental impacts of the terrestrial sections of the controversial pipelines, known as Line 5, in consultation with the U.S. Fish and Wildlife Service. The National Wildlife Federation is further asking PHMSA to revoke its approval of oil spill response plans for the sections of Line 5 where it runs beneath the Straits of Mackinac and other navigable waters in Michigan’s Upper and Lower Peninsulas on its pathway from Superior, Wisconsin to Sarnia, Ontario.
The legal action is the latest effort by conservation groups, businesses, and communities to protect the state’s environment and economy from another oil spill disaster. Enbridge Energy, the company which operates Line 5, is responsible for the 2010 oil disaster near Marshall, Mich., which dumped more than 800,000 gallons of oil into the Kalamazoo River. That catastrophe remains the largest inland oil spill in U.S. history.
“We are taking action today to help protect people, communities, wildlife, and the Great Lakes from an oil disaster,” said Mike Shriberg, the National Wildlife Federation’s Great Lakes regional executive director. “Michigan is home to the largest inland oil disaster in U.S. history, and we need to make sure that we never experience that again.”
Read the National Wildlife Federation’s Notice of Intent to Sue at: http://bit.ly/24mrSQ8
By law, pipeline operators can transport oil only if they have oil spill response plans that are approved by the authorized federal official or agency. PHMSA violated several laws in approving Enbridge Energy’s oil spill response plans for Line 5 including:
- The National Environmental Policy Act, which requires PHMSA to assess impacts on the environment, including shorelines, beaches, fish, and wildlife. The agency failed to conduct an environmental impact assessment.
- The Endangered Species Act, which mandates that PHMSA assess impacts on endangered or threatened fish and wildlife. The agency failed to consult with the U.S. Fish and Wildlife Service in assessing impacts to these species.
- The Oil Pollution Act, because PHMSA lacked the authority to approve oil spill response plans for sections of Line 5 where it runs through the Straits of Mackinac and other navigable waters in Michigan’s Upper and Lower Peninsulas. Under the Oil Pollution Act of 1990, only the Secretary of the U.S. Department of Transportation is authorized to approve oil spill response plans for pipelines running in, on, or under inland navigable waters—not PHMSA.
“An oil spill, and a worst-case discharge of oil in particular, may significantly harm if not destroy the unique cultural and natural resources in the shadow of Line 5,” the National Wildlife Federation’s filing states. “So, too, a spill may significantly impact or destroy the bountiful fish and wildlife, as well as the recreation and tourism the ecological resources in the area support.”
Call for Papers – Indigenous Environmental Rights and Tribal Environmental Regulation
William Mitchell Law Review, Vol. 41, Issue 2 (Spring 2015)
The William Mitchell Law Review is dedicating an issue to environmental justice issues, with a focus on indigenous rights to land and natural resources. The issue will be published in March 2015. Confirmed article topics so far cover tribal groundwater rights, EPA jurisdiction over off-reservation Indian lands, and mechanisms for tribal adaptation to climate change. The law review invites submissions that would support this overall theme of indigenous environmental justice and tribal environmental regulation.
Founded in 1974, the William Mitchell Law Review publishes timely articles of regional, national and international interest for legal practitioners, scholars, and lawmakers. Judges throughout the United States regularly cite the Law Review in their opinions. Academic journals, textbooks, and treatises frequently cite the Law Review as well. Due to the rising prominence of William Mitchell’s Indian law program, the Law Review is increasingly becoming a resource for articles relevant to Indian country.
Submissions may take the form of short commentaries or full-length law review articles. If you are interested in submitting an article, please email your submission to melissa.lorentz@wmitchell.edu by Friday, September 12th.
Environmental Justice Memorandum of Understanding Announced
From the EPA’s press release, issued August 4 (link here):
Building on its commitment to ensuring strong protection from environmental and health hazards for all Americans, the Obama Administration today announced Federal agencies have agreed to develop environmental justice strategies to protect the health of people living in communities overburdened by pollution and provide the public with annual progress reports on their efforts. Environmental Protection Agency Administrator Lisa P. Jackson, White House Council on Environmental Quality Chair Nancy Sutley and U.S. Attorney General Eric Holder were joined by agency heads across the Administration in signing the “Memorandum of Understanding on Environmental Justice and Executive Order 12898” (EJ MOU).
“All too often, low-income, minority and Native Americans live in the shadows of our society’s worst pollution, facing disproportionate health impacts and greater obstacles to economic growth in communities that can’t attract businesses and new jobs. Expanding the conversation on environmentalism and working for environmental justice are some of my top priorities for the work of the EPA, and we’re glad to have President Obama’s leadership and the help of our federal partners in this important effort,” said EPA Administrator Lisa P. Jackson. “Every agency has a unique and important role to play in ensuring that all communities receive the health and environmental protections they deserve. Our broad collaboration will mean real progress for overburdened communities.”
Here’s the summary description of the MOU provided by the Federal Interagency Working Group on Environmental Justice website (link here):
The EJ MOU broadens the EJ IWG, to include:
- Agencies not named in Executive Order 12898 as participants
- An EJ IWG Charter (PDF) (4 pp, 33K) to add more structure and efficiency to the Workgroup
- Formal environmental justice commitments that agencies have made over the past year
- A roadmap for agencies to better coordinate their efforts
- Processes and procedures to help communities more efficiently
- Effective engagement of agencies as they make decisions
Also, under the EJ MOU, each agency will be responsible for meeting various commitments, including:
- Finalizing and publicizing an environmental justice strategy;
- Providing the pubic with annual implementation reports that discuss progress in carrying out the Agency’s EJ commitments and responsibilities; and
- Focusing on, when appropriate, the implementation of the National Environmental Policy Act, implementation of Title VI of the Civil Rights Act of 1964, impacts from climate change, and impacts from commercial transportation and supporting infrastructure, or goods movement.
Rebecca Tsosie on Environmental Justice
Rebecca Tsosie has published “Indigenous People and Environmental Justice: The Impact of Climate Change” with the University of Colorado Law Review. Here is the abstract:
The international dialogue on climate change is currently focused on a strategy of adaptation that includes the projected removal of entire communities, if necessary. Not surprisingly, many of the geographical regions that are most vulnerable to the effects of climate change are also the traditional lands of indigenous communities. This article takes the position that the adaptation strategy will prove genocidal for many groups of indigenous people, and instead argues for recognition of an indigenous right to environmental self-determination, which would allow indigenous peoples to maintain their cultural and political status upon their traditional lands. In the context of climate change policy, such a right would impose affirmative requirements on nation-states to engage in a mitigation strategy in order to avoid catastrophic harm to indigenous peoples. This article argues for a new conception of rights to address the unique harms of climate change. An indigenous right to environmental self-determination would be based on human rights norms in recognition that ‘sovereignty claims‘ by indigenous groups are not a sufficient basis to protect traditional ways of life and the rich and unique cultural norms of such groups. Similarly, tort-based theories of compensation for the harms of climate change have only limited capacity to address the concerns of indigenous peoples.
Turtle Talk 