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8 Ariz. J. Envtl. L. & Pol'y 1 (2017-2018)
Accountability or Merely "Good Words"? An Analysis of Tribal Consultation under the National Environmental Policy Act and the National Historic Preservation Act

handle is hein.journals/arijel8 and id is 125 raw text is: Accountability or merely good words? An analysis of tribal consultation under the National Environmental Policy Act and the National Historic Preservation Act Matthew J. Rowe, Judson Byrd Finley, and Elizabeth Baldwini 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-to- government basis can balance development and preservation goals and help fulfill the noble intentions of NEPA and NHPA. 1 Dr. Matthew J. Rowe, RPA#33599753, is a Curatorial Assistant at the Arizona State Museum and a Lecturer in the School of Anthropology at the University of Arizona. Rowe originally presented a version of this work at the Environmental Justice in the Anthropocene conference, at Colorado State University in Fort Collins, Colorado on April 25, 2017. Dr. Judson B. Finley is an Assistant Professor, Co-Director of Graduate Program, and Program Coordinator of Native American Studies Minor in the School of Sociology, Social Work and Anthropology at Utah State University. Dr. Elizabeth Baldwin, J.D., is an Assistant Professor at the University of Arizona's School of Government and Public Policy. 1

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