Interpretation Restrictions must legally mandate a decrease in the quantity produced – regulations are distinct


The CP shifts the NEPA review process to explicitly prioritize tribal decisions---solves the entire case



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The CP shifts the NEPA review process to explicitly prioritize tribal decisions---solves the entire case


Judith V. Royster 8, Co-Director – Native American Law Center @ University of Tulsa, ‘8, 12 Lewis & Clark L. Rev. 1065

There is no question that the environmental review process under a TERA will be costly, and it will undeniably have the potential to delay implementation of tribal resource decisions. n150 Nonetheless, the TERA provisions for environmental review of specific tribal development decisions are not necessarily incompatible with practical sovereignty. n151 First, like NEPA, the environmental review provisions of ITEDSA mandate a process rather than a substantive outcome. n152 Tribes must identify and evaluate significant environmental effects, identify proposed mitigation measures, and include appropriate mitigation measures in specific instruments. n153 Nothing in this process contemplates a particular substantive decision, but rather that decisions are made in light of full environmental information. The intent, as with NEPA, is that more information leads to more informed, and therefore "better," decision making. n154 Second, public notice and comment on environmental matters has long been a feature of tribal mineral development decisions, by way of the NEPA process. Under current mineral development statutes other than ITEDSA - the Indian Mineral Development Act of 1982 and the Indian Mineral Leasing Act of 1938 - the Secretary must approve each specific lease or development agreement. The Secretary's approval, in turn, constitutes "major federal action," which triggers the environmental review process of NEPA if the action significantly affects the quality of the human environment. n155 Virtually all mineral development has significant enough effects to require an environmental impact statement. n156 An [*1092] environmental impact statement for tribal mineral development, whether undertaken by the Bureau of Indian Affairs or another federal agency, n157 is subject to public notice and comment in draft form, n158 and the federal agency is required to consider and respond to substantive comments in preparing the final statement. n159 There are at least two important differences between public notice and comment as part of the NEPA process and as part of the TERA process. Like other aspects of the TERA environmental review process, the costs of notice and comment will be borne by the tribe rather than the Bureau of Indian Affairs or other federal governmental agency. This cost-shifting places a significant burden on the tribes. On the other hand, the consideration of and response to comments will be undertaken by the tribe rather than a federal agency. Although tribes have substantial input at the NEPA comment stage, n160 the consideration of all comments and the response to them are matters for the federal agency. The shift to a tribal environmental review process ensures that comments will be reviewed in light of tribal values, priorities, and decisions, rather than filtered through a federal lens. Third, although the environmental review process introduces the requirement of public comment on the environmental effects of a proposed instrument, and the requirement that the tribe respond to relevant and substantive comments before it approves the instrument, this type of public participation can serve important tribal interests. n161 First, it allows input by tribal citizens; although tribal members have indirect influence through their voting powers for tribal government officials, public comment allows more direct participation in tribal government. In addition, the public comment provision allows nonmembers who may be affected by the tribe's decisions an opportunity to have their say, and to have the tribe respond directly to their substantive environmental concerns. Not only does that address legitimate interests of reservation residents and neighbors who have no direct say in tribal government, but it helps alleviate the often still-lingering perception that tribal governments are not responsive to valid [*1093] non-tribal concerns. n162 On the other hand, of course, there is little question that the public comment process also allows those who oppose or fear tribal actions generally to make their misgivings part of the record. Nonetheless, the values of public participation may outweigh the concerns those types of comments can pose. In addition, some tribes pursuing a TERA may already have a tribal environmental review process in place. Tribal environmental policy acts (TEPAs) have long been advocated, n163 and in 2000 the Tulalip Tribes published a guide for Indian tribes interested in developing TEPAs. n164 Tribes that have chosen to develop TEPAs generally cite the importance of "proper and meaningful consideration of environmental, cultural, historical, and ecological factors" before development occurs, n165 and the need "to protect and preserve" the reservation and "to provide a safe and habitable homeland" for the generations. n166 It is difficult to determine how many tribes have TEPAs currently in place, n167 but of those tribal TEPAs readily available online, at least some provide either a public notice and comment process or some method of public participation in [*1094] the environmental review process. n168 Although those tribes have chosen to include public participation in the environmental review process, and tribes entering into TERAs are required by federal law to do so, there is no indication that such provisions have proven problematic for the tribes that adopted them.




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