On October 17, 2019, FERC amended its Policy Statement on Consultation with Indian Tribes in Commission Proceedings (“Policy Statement”) by adding a specific reference to treaty rights, noting that the Commission addresses input from tribes in its National Environmental Policy Act (“NEPA”) documents, and adding consultation with Alaska Native Corporations to the Policy Statement.
FERC issued its Policy Statement in 2003 to recognize the unique relationship between the Federal government and Indian tribes pursuant to treaties, statutes, and judicial decisions and to acknowledge the Commission’s federal trust responsibilities. It provides that the Commission will work with tribes on a “government-to-government” basis and will seek to address the effects of proposed projects on tribal rights through consultation and in the Commission’s decisional documents. With respect to hydroelectric projects, the Policy Statement provides that FERC will notify tribes before or at the time a potential license applicant files a notice of intent to file a license application and will consider comprehensive plans prepared by tribes or intertribal organizations. Following FERC’s issuance of its Policy Statement, Congress directed that “[t]he Director of the Office of Management and Budget [and all Federal agencies] shall hereafter consult with Alaska Native corporations on the same basis as Indian tribes under Executive Order No. 13175.”
In March 2017, the U.S. Government Accountability Office (“GAO”) initiated an effort to review the tribal consultation practices of 21 federal agencies engaged in permitting, review, or funding of infrastructure projects. The effort focused on, among other things, agencies’ compliance with government-to-government consultation responsibilities under Executive Order 13175, the consistent application of “meaningful tribal consultations” by agencies, and opportunities for tribal input on contiguous, off-reservation developments that may impact tribal land. In March 2019, GAO issued its final report, which recommended that FERC “should document in its tribal consultation policy how agency officials are to communicate with tribes about how their input from consultation was considered in agency decisions on infrastructure projects.”
In FERC’s October 17 order, it noted that its policy has been to address tribal input and concerns, including treaty rights, in its environmental documents and decisions but acknowledged that its Policy Statement has not previously included specific language to that effect. Specifically, FERC stated that it is now amending its Policy Statement to explicitly state that it will consider the effect of actions on treaty rights in its NEPA and decision documents.
Similarly, while the Policy Statement addresses consultation with federally-recognized Indian tribes, it has not previously addressed consultation with corporations established pursuant to the Alaska Native Claims Settlement Act (“ANCSA Corporations”). FERC is now updating its Policy Statement to explicitly include consultation with those corporations and to recognize the “distinct, unique, and individual cultural traditions and values of Alaska Native peoples and the statutory relationship between ANCSA Corporations and the Federal Government.”
A copy of FERC’s order is available here.