Posted on October 11, 2021 by Steve Chester
On September 30, 2021, U.S. Environmental Protection Agency (EPA) Administrator Michael Regan issued a memorandum to all EPA employees reaffirming the Agency’s 1984 Indian Policy, entitled “EPA Policy for the Administration of Environmental Programs on Indian Reservations.” That very same day, he attended the annual meeting of the National Tribal Operations Committee (NTOC) where he committed to improving and strengthening EPA’s consultation and coordination process with federally recognized tribes.
EPA’s current policy on tribal consultation is set forth in the May 4, 2011 “EPA Policy on Consultation and Coordination with Indian Tribes.” Administrator Regan’s pledge to improve the consultation process suggests substantive changes to EPA’s 2011 Consultation Policy may be in the works. That certainly would be an important development worthy of a future ACOEL posting. Yet, as a former state director of an environmental agency, I’m curious about government-to-government consultations between states and tribes. Recent changes to Michigan’s tribal consultation process may be useful for states considering improvements to state/tribal engagement.
At the federal level, consultation between executive departments and tribal governments is grounded on the government’s trust responsibility to tribes as confirmed by the U.S. Constitution, treaties, laws and court opinions. The legal relationship between states and tribes, however, tends not to be so well-defined. Some states have enacted laws describing the tribal consultation relationship, while others have looked to the Executive Branch to adopt policies requiring tribal consultation under specified circumstances. Not surprisingly, states have taken varied approaches in scope and breadth to tribal engagement and consultation.
Let’s consider recent changes to Michigan’s tribal consultation process that may significantly alter the way the Michigan Department of Environment, Great Lakes and Energy (EGLE) interacts and communicates with the twelve federally recognized tribes in Michigan.
As background, in October 2002, Michigan entered into a Government-to-Government Accord with the tribes located in Michigan. The Accord, however, defined the scope of “consultation” between the state and tribes narrowly to state actions or proposed actions that significantly affect or may significantly affect the governmental interests of the other party. The Accord further limited state actions to regulations or legislation or other policy statements or actions of executive departments, that have or may have substantial direct effects on one or more tribes. The Accord did not identify specific actions, such as issuance of licenses and permits, as subject to the consultation process.
Not surprisingly, the Accord led to confusion and criticism as to what state agency actions were – or were not – subject to consultation. In 2019, Michigan Governor Gretchen Whitmer issued Executive Directive 2019-17 with the clear intent of clarifying and expanding the consultation process. In contrast to the Accord, the Executive Directive states that consultation between state departments and tribes will apply to all matters of shared concern. The Directive then provides a non-exclusive laundry list of agency actions subject to consultation, including actions or decisions on regulations, rules and policies, permits, civil enforcement and compliance monitoring, and emergency preparedness and response. It is worth noting that the actions listed in the Executive Directive largely mirror those specified in EPA’s 2011 Consultation Policy,
In July 2020, EGLE issued Department Policy and Procedure 09-031 “Consultation and Coordination with Indian Tribal Governments.” The EGLE Policy requires a robust government-to-government consultation process with tribes and identifies as its ultimate goal “strengthening the consultation, communication, coordination, and collaboration between tribal governments and EGLE.” To achieve this goal, the Policy commits EGLE to broadly applying the consultation standard to department activities and, importantly, includes a commitment by the department to coordinate with tribes on information about culturally significant resources that may be sensitive and/or confidential in nature. The Policy sends a clear signal – to senior officials and line-level staff – that engagement with tribes is an essential aspect of EGLE’s work.
Governor Whitmer’s Executive Directive and EGLE’s Consultation Policy clearly are meant to improve the state tribal consultation process and encourage a meaningful dialogue between the state and tribes on myriad environmental, economic and social issues. The changes anticipated by the Governor’s Directive and the EGLE Policy also should better align Michigan with the existing EPA tribal consultation process and any likely near-term improvements to that process by EPA. Lastly, Michigan’s efforts to clarify and strengthen the state tribal consultation relationship may serve as a suitable model for other states seeking to establish and formalize a framework for tribal engagement on matters of shared concern.