Tribal Legal Code Project: Environmental Review Codes

What is the purpose of an environmental review code?

Environmental review codes can facilitate tribal protection of members’ health and safety and ensure suitable land, clean water and air for future generations, and preserve a traditional land based way of life. To these ends environmental review codes:

provide information thorough data collection and dissemination of information to the tribe about development projects to inform decision making by the tribe on specific projects;
coordinate new development with ongoing land use planning by the tribe;
coordinate related tribal programs and clarify areas where codes overlap or leave gaps that affect the environment e.g. land use plans, water quality regulations, fish and wildlife protections, building codes, solid waste codes, preservation o historic sites, preservation of spiritual sites, cemetery preservation;
facilitate public participation in planning and development decisions through public hearings and comments on proposed projects;
provide procedures for tribes to monitor ongoing development projects for consistency with permits and plans;
coordinate tribal compliance with federal environmental laws as they apply to tribal lands, e.g. under NEPA, ESA, and CWA § 404, and provide a framework for compliance with both federal and tribal environmental requirements.

Why may Tribes want to develop tribal environmental review codes when NEPA and other federal environmental laws already apply to many projects on reservation lands?

Although many actions on reservations are subject to federal NEPA requirements NEPA is limit in several ways:

NEPA guidelines do not always account for issues of concern to tribes including greater priority for natural resource protection and spiritual/ cultural values of natural resources.
NEPA is limited to procedural requirements and does not impose substantive limits on environmental effects.
fee lands within reservations and off reservation non-federal lands where tribes legal rights and interests (e.g. hunting and fishing rights in particular) are not subject to NEPA (but may be subject to state environmental review procedures or state environmental quality acts SEQA’s).

While the Endangered Species Act (ESA) requires habitat conservation plans (HCP’s) in areas with endangered species these plans may not adequately protect some species on which tribes depend for subsistence, e.g. salmon, or which have cultural/spiritual value for tribes. Further, the ESA is only triggered once species are threatened or endangered and do nothing to maintain relatively healthy species at current levels or recover species to sustainable levels.

Clean Water Act §404 permit requirements are aimed at preserving wetlands and prioritizes the preservation of existing wetlands, but where "unavoidable" loss is caused by development, guidelines allow for reclamation of degraded wetlands or construction of manmade wetlands as mitigation. However, loss of natural wetlands my be of more concern to tribes who rely on natural systems for subsistence gathering, e.g. wild rice lakes and fish spawning areas, or tribes who value native wetlands preservation to protect medicinal plants and animals sacred the tribe.

What types of environmental review codes are there?

Environmental review codes can be used to coordinate existing tribal codes’ permit requirements or add additional formational or substantive permitting requirements.

Environmental codes can be either:

comprehensive review codes that are triggered by any actions affecting the environment on the reservation, including repairs of existing structures and upgrades of existing roads, or
limited in scope so that they are only triggered by major projects or by certain types of projects, including mining proposals, timber sales, new housing development, new water and sewage systems, or only for projects that affect particular resources or designated environmentally sensitive areas.

Environmental review codes may require either purely procedural codes or both procedural and substantive:

procedural codes require only that applicants provide certain information and analysis of environmental effects of a project and fulfill procedural requirements in order to receive a permit or
require that projects meet substantive requirements including choosing the alternative which will have the least effect on the environment, or mitigating any substantial effects by scaling back the project, or providing funds for reclamation of other sites.

What issues should tribes consider before developing environmental review codes?

Prioritizing environmental issues within the reservation, particularly focusing on the most sensitive resources and those most central to tribal health and safety, e.g. groundwater quality, air quality, open space preservation, range preservation, reclamation of existing sites with environmental problems, sacred site preservation, salmon preservation, forest preservation.

Prioritizing development needs of the tribe, e.g. need for modern housing stock, need for revenue and jobs, transportation needs.
Funding for a environmental review committees or tribal staff time to review applications.
Funding for data collection for tribal projects, or coordinating the procedure with NEPA procedures for tribal projects.
Funding for tribal staff training in administering and enforcing environmental review codes and coordinating tribal agencies in administering the codes consistently.
Involvement of the affected community in prioritizing issues and developing codes that are not unnecessarily bureaucratic or confusing.

For more in depth analysis of the role of tribal environmental review codes see, Dean B. Suagee & Patrick A. Parenteau, "Fashioning a Comprehensive Environmental Review Code for Tribal Governments: Institutions and Processes," 21 American Indian Law Review 297 (1997). For a useful model of an environmental review code see, Oglala Sioux.

The following Tribal Environmental Laws and Codes can be found at the EnviroText website.

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Tribal Legal Code Project

Overview: Tribal Legal Code Project

Part One: Tribal Legal Infrastructure for Housing and Community Development in Indian Country

Part Two: Bibliography

Part Three: Tribal Housing Code

Part Four: Land Use and Planning

Part Five: Tribal Zoning Codes

Part Six: Tribal Building Codes

Part Seven: Commercial Codes

Part Eight: Tribal Corporations Codes

Part Nine: Environmental Review Codes

Part Ten: Tribal Probate Codes