Impacts of Permitting Reform Proposal on Tribes and Indigenous Communities

Dr. Kyle Whyte · September 22, 2022

Impacts of Permitting Reform Proposal on Tribes and Indigenous Communities

This analysis and summary, co-authored by the NDN Collective Climate Justice Team alongside Dr. Kyle Whyte, organizer and Professor of Environment and Sustainability at the University of Michigan, captures the impacts of Sen. Joe Manchin’s (D-WV) permitting reform proposal and is based on the most recent draft text released on September 21, 2022. 

This analysis and summary, co-authored by the NDN Collective Climate Justice Team alongside Dr. Kyle Whyte, organizer and Professor of Environment and Sustainability at the University of Michigan, captures the impacts of Sen. Joe Manchin’s (D-WV) permitting reform proposal and is based on the most recent draft text released on September 21, 2022. 

Tribal Consultation:

  • The permitting reform deal guts public comment and Tribal consultations on damaging fossil fuel projects.
  • Backtracks efforts made to advance the Free Prior and Informed Consent framework
  • We need improved consultation, not less.
  • Tribal staff and Indigenous organizations – and the federal liaison staff – do not have the current capacities to manage speeded up consultative, review/assessment, and public participation activities. 
  • Tribal nations have also been making strides in orchestrating their own, self-directed, consultations with agencies, and new development that would be curtailed by the side-deal. The side deal does not provide new opportunities or capacities for Tribes to expand and empower their self-governance in permitting. It actually rolls back recent developments in this area.
  • If passed, Tribes must be thoroughly consulted for all fossil fuel and mining projects proposed in the permitting reform deal. 

Environmental Justice:

  • The leaked “permitting reform” deal undermines the reforms we need and perpetuates injustice for our communities.
  • The leaked bill greatly restricts access to the courts to enforce every federal environmental and public health law that we have; weakens public disclosure and public comment requirements.
  • The “permitting reform” deal helps advance proposed projects that will no doubt pollute EJ communities already overburdened with a disproportionate share of our nation’s pollution as the consequences of decades of environmental injustice, racism, and discrimination.

NEPA and the Clean Water Act: 

  • Currently, NEPA is not strong enough. Historically, Tribal Nations and Indigenous communities have struggled with federal agencies following regulations and laws within NEPA. What our communities need is not this type of “reform” but rather a strengthening of NEPA.
  • It already takes a tremendous amount of time, energy and resources, let alone technical assistance, for Tribes and Indigenous Peoples to participate in permit and regulatory processes for environmental reviews and assessments. It is unjust for these processes to become even more challenging. We need to make these processes more accessible and less intimidating to participate in, the permitting reform will move us backwards.
  • The proposed legislative text fast tracks fossil fuel development at the expense of frontline communities by undermining environmental reviews under the National Environmental Policy Act (NEPA) and the Clean Water Act (CWA).
  • Fast tracked permitting also makes it challenging for Tribes and Indigenous organizations to develop Justice40 approaches to any new infrastructure that a Tribal community may actually choose to accept or must grapple with in the first place, and hence seeks at least some benefit from even if the community/tribal government is against the project.
  • Dismantles critical laws and regulations that protect Indigenous peoples from harmful pollutants and toxin exposure.
  • The legislation undermines the CWA Section 401 certification process, which allows states to ensure pipelines and other projects will not harm the environment, by preventing states and Tribes from objecting to fossil fuel projects on broader climate and environmental grounds.

Mining

  • Mining-affected communities depend upon NEPA to learn more about mining company proposals and to suggest alternatives that will result in improved social and environmental outcomes.
  • At risk: Thacker Pass (NV), Mt. Taylor (NM), Palmer Campaign (AK), and many more.
  • The dirty side deal’s worst facet is that it allows the mining industry to tilt the scale of our governments’ NEPA decisions heavily in their favor. It is designed to manipulate NEPA’s democratic mechanisms to limit our access to information. As written in this side deal, mining companies would be able to request that federal agencies forgo NEPA compliance, and preemptively limit the time and scope of public review. – Earthworks

Traditional Ecological Knowledge:

In December of 2021, the White House released a proclamation announcing a commitment to elevating Indigenous Traditional Ecological Knowledge (ITEK) in federal scientific and policy processes. The “permitting reform bill” undermines this commitment as fast tracked permitting for fossil fuel projects will undoubtedly threaten ITEK. In fact, the permitting reform is contrary to policy respecting ITEK, especially given it will speed up permitting and reviews in ways that will make it hard for their to be meaningful inclusion of ITEK in regulatory processes.

Federal agencies, including EPA in some regions, are determining to respect ITEK. Those determinations will take time to develop, as they will involve interlinking diverse knowledge systems marked by cultural, social, and ethical differences, and that are exchanged in contexts where there can be high levels of distrust. The ramping up and speeding up of permitting and review will create distrust of these delicate plans being put in place for the first time to truly respect ITEK.

We need strengthened input and consultation because including the expertise of those most impacted by mining and fossil fuel extraction helps federal agencies embrace Indigenous Traditional Ecological Knowledge (ITEK) and respect Free, Prior, and Informed Consent (FPIC). 

Place Based Fights where NEPA and CWA protections are critical or where improved consultation is needed: 

DAPL:

  • This project currently violates NEPA. The permitting reform deal will create damaging road blocks for Tribes and Indigenous Groups to protect water, land, and people. 

“Willow Project” or Willow Master Development Plan:

Arctic Refuge:

  • The EIS for the Coastal Plain Oil and Gas Leasing Program states that the impacts resulting from the sale would include effects from “seismic and drilling exploration, development, and transportation of oil and gas in and from the Coastal Plain” and outlines the effects on local subsistence users as “impacts on subsistence species and from direct disturbance of hunts, displacement of resources from traditional harvest areas, and hunter avoidance of industrialized areas.” It also acknowledges mass extinctions due to climate change and drilling –  NC State University, College of Natural Resources News

Fracking and Drilling on Public Lands:

Line 5 in Michigan: (CWA aspects):

What justice-based permitting reform looks like for Indigenous communities:

  • Indigenous peoples want well articulated and trustworthy processes – fully in place – that ensure ITEK is treated with the same scientific authority as the studies, reviews, and assessments performed by the federal government or those organizations and individuals it contracts with.
  • Indigenous Peoples and EJ Communities want ample opportunity to consider, analyze, and comment on major federal actions under the National Environmental Policy Act, as Section 15 (as amended and reported out of the House Natural Resources Committee) of the Environmental Justice for All Act provides.
  • Indigenous Peoples EJ communities want to stop unlawful environmental discrimination by restoring the longstanding right to access the court to enforce the Civil Rights Act of 1964.
  • We want accountability from agencies charged with protecting our public health and environment.
  • There needs to be full transparency, and vetting that is inclusive of Indigenous peoples, on what contractors are selected and hired for studies, reviews, and assessments, whether professors, scientists, or professional researchers, and organizations providing such academic and scientific services.
  • There need to be protections of ITEK, data that poses risk for Tribes if the data is misused or mishandled, and Indigenous peoples’ intellectual property.
  • Trust lands, ancestral lands, treaty lands, and other lands of contemporary significance must be weighted significantly by agencies; if the extent of these lands/waters isn’t known, there must be meaningful involvement and consultation of persons and staff in Tribal nations who have this knowledge and the authority and community accountability to engage with federal agencies and industry.
  • Government staff should be trained in federal Indian law and legal systems pertaining to Native Hawaiians and other Indigenous peoples, Indigenous peoples’ human rights, honorable practices of consultation, including case studies from the U.S. and beyond; the ethics and protocols of knowledge exchange with ITEK and other forms of science that Indigenous educational institutions, governments, and organizations collect; the history of federal failures to protect Indigenous peoples through permitting and regulation; positive examples of how Tribal self-governance and sovereignty is a solution.
  • Meaningful recognition of Indigenous cultural heritage, including as expressed through language, Indigenous concepts (i.e. viewscapes), harvesting practices, etc. Concepts such as “biodiversity” or other ecological or environmental science should not be used in ways that erase or discount Indigenous practices, and the impacts on Indigenous practices.

Mining and Lithium Mining justice-based reform:

  • The 1872 mining law and its rules for hardrock mining have never been significantly revised. At the same time, modern mining uses energy-intensive methods that decimate landscapes with massive open pits, waste rock dumps, and tailings piles that extend over thousands of acres of land. Mining also may involve processing with toxic chemicals such as cyanide and sulfuric acid, which seep into nearby soil and water, significantly harming communities for decades. 
  • Establish meaningful Tribal consultation and Indigenous resource protections. On January 26, 2021, the Biden-Harris administration issued an EO on Tribal Consultation and Strengthening Nation-to-Nation Relationships. Consultations and regulations on mining should seek to achieve the Free, Prior, and Informed Consent (FPIC) of Indigenous communities; 
  • Require mining operators to use the best available technologies and meet strict operating standards throughout the mining process, including management of mine tailings. 
  • Prioritize safety and prevent, to the greatest extent possible, surface and groundwater contamination, and disturbance to wildlife, landscapes, and cultural resources; 
  • Require planning for climate impacts. Exploration, operations, infrastructure, reclamation, and closure must be designed and managed to account for the increased risks associated with climate change, such as increasing the capacity of wastewater containment ponds to prevent toxic spills during extreme storms;
  • Require adequate financial assurances to cover all costs, including long-term water treatment, so the public does not bear that financial burden should a mining company become insolvent. These assurances should prohibit risky financial instruments—such as corporate guarantees or their own property—as a form of bond; 
  • Commit to public transparency and accountability, including public involvement in decisions on permitting, bonding, inspections, and enforcement. All financial assurance agreements, mine operation and reclamation plans, monitoring results, and compliance records should be posted online and readily accessible by the public.

Ways You Can Take Action Now

*Tribes and Indigenous Peoples, please utilize this one pager toolkit and make calls to House and Senate members to “Stop Manchin’s Permitting Reform Deal”. This deal will weaken Tribal Consultation and is an attack on Free Prior Informed Consent. What’s more is this deal will threaten Indigenous Traditional Ecological Knowledge.

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