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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.


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