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Tribal Knowledge Brings Both Community, Complexity to Permitting

Nov. 19, 2021, 11:00 AM

The White House’s new push to include traditional indigenous knowledge in federal decisions will let the public benefit from a wealth of practices that have long been proven to work—even if it raises some complications in permitting, regulatory experts say.

Under a Nov. 15 memo, the Council on Environmental Quality and the Office of Science and Technology Policy will stand up an interagency working group before the end of the year to determine how traditional knowledge “can and should inform federal decision making along with scientific inquiry.” The working group will deliver a guidance document in 2022.

The move parallels the administration’s focus on environmental justice and its desire to include input from impacted communities. But it also carries the risk of a longer, more drawn-out permitting process, just as a national infrastructure initiative is getting off the ground.

Any new guidance that touches on permitting has the potential to slow down the permitting process, according to Brian Israel, a partner with Arnold & Porter Kaye Scholer LLP who leads the firm’s environmental practice group. That could clash with the infrastructure bill that President Joe Biden signed into law on Nov. 15 containing large pots of money for roads, bridges, and water projects.

“It’ll be interesting to see how the administration navigates the potentially competing imperatives of incorporating indigenous knowledge, interaction, and consultation with impacted communities on one hand, and ensuring projects are built on the other,” said Israel.

At the same time, any new guidance that takes a wider range of voices into account could also help projects move forward more smoothly by enhancing community buy-in, Israel said.

“If you can make it through an enhanced consultation process on the front end, you may be less likely to have to deal with litigation and delays on the back end after receiving a permit,” he said. “It’s analogous to the environmental justice dilemma, because a major part of EJ is process-oriented—communicating with communities, consulting with communities, getting input.”

Unique Knowledge

Tribal members said the administration’s bid will help policy makers access more complete, often untapped information to guide their decisions.

“For far too long, this type of knowledge has been downplayed or excluded intentionally by western scientists, researchers, policy makers, and lawmakers because it doesn’t have numbers or graphs attached to it,” said Nikki Cooley, co-manager of the tribal climate change program at Northern Arizona University’s Institute for Tribal Environmental Professionals. “It’s a form of science that is not accepted widely by western non-native communities. People say, ‘That’s not real, that’s not true.’”

Plenty of evidence exists that traditional indigenous knowledge does work, in fields such as wildfire management and salmon stream upkeep, said Adam Crepelle, director of the Tribal Law and Economics Project at George Mason University’s Law and Economics Center and a citizen of the United Houma Nation.

People in Native American communities also don’t always feel they are listened to, said Cary Coglianese, a regulatory law professor at the University of Pennsylvania Law School.

“If this task force will make more salient the need for active listening to and engagement with indigenous people and their ways of understanding the world, this will make a positive step forward in ensuring the federal government treats all people with dignity and respect,” he said.

The White House memo also documents some examples of agencies using tribal knowledge to inform their decisions, including the National Oceanic and Atmospheric Administration drawing on Cowlitz oral histories to identify key spawning habitat of a species of smelt, and the National Parks Service using Wabanaki philosophy to enhance the growth of sweetgrass.

As the working group digs into ways of incorporating tribal knowledge, it should also consider the treatment of culturally sensitive information that shouldn’t be shared with people outside a tribe, said Cooley, who is also a member of the Navajo Nation. Some examples include the locations of culturally significant areas or plants that are important to a ceremony, prayer, or way of life.

A White House official told Bloomberg Law that the memo is intended to “convey that we view indigenous traditional ecological knowledge as an important source of knowledge about the world that can support our collective interests in supporting people and the planet.”

The memo describes indigenous tribal knowledge as “a body of observations, oral and written knowledge, practices, and beliefs that promote environmental sustainability,” which is “applied to phenomena across biological, physical, cultural, and spiritual systems.”

No New Legal Rights?

James Broughel, a senior research fellow at George Mason University’s Mercatus Center, said the working group’s guidance will not create new legal rights, though it could trigger new requirements regulators will have to follow.

As a result, any guidance “should be viewed as recommendations that may or may not be adhered to consistently by agencies,” said Broughel. “It will be up to whatever administration is in charge to enforce the guidelines to give them teeth. Otherwise, agencies are likely to comply with the guidance when it is convenient to them and ignore the guidance when its recommendations are not convenient.”

Many agencies already have tribal consultation policies in place, which “don’t force departments to take unscientific views seriously,” he said.

Moreover, if existing policies were strengthened, the new guidance wouldn’t invalidate other requirements that compel regulatory agencies to incorporate economic or other technical analysis into rulemaking procedures, according to Broughel.

He also said it’s unlikely that any new policy will lower the current bar for regulations being based on science. There are few consequences for violating either the Data Quality Act—which requires agencies to publish guidelines for the quality and objectivity of the information it uses—or executive orders mandating that economic analysis must accompany some regulations, Broughel said.

George Mason’s Crepelle said, “Not everything’s going to be perfect, but just giving tribal knowledge a voice is worth something.”

To contact the reporter on this story: Stephen Lee in Washington at stephenlee@bloombergindustry.com

To contact the editors responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com; Tom P. Taylor at ttaylor@bloomberglaw.com

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