Effective Tribal Consultation on Energy and Infrastructure Projects

Federal departments and agencies have a legal obligation to consult with Native American and Alaska Native tribes on a government-to-government basis whenever projects require federal approval. Pipelines, transmission lines, fiberoptic and telecommunications systems, wind and solar generation facilities, mines, dams and highways – if a proposed project requires a federal permit, certificate, or other permission of some kind, that federal decision will trigger tribal consultation under the National Historic Preservation Act, the National Environmental Policy Act, and other statutes.  As sovereigns pre-dating the U.S. Constitution, tribes retain their own inherent powers of self-government.  A series of Presidential executive orders and policies, which tribes may enforce against agencies through federal court litigation, require that such consultation be "meaningful" in order to be legally adequate. Moreover, many state governments have likewise adopted their own tribal consultation policies, which often apply to projects that do not require any federal approval. In this presentation, the Honorable Troy A. Eid of Greenberg Traurig, LLP – co-chair of the firm's American Indian Law Practice Group; former United States Attorney for Colorado under President George W. Bush; and former Chairman of the Indian Law and Order Commission under President Barack Obama – will discuss practical steps that project proponents can take to support federal and state consultation with tribes, thereby reducing risk to their own projects.   

Learning Objectives:

1. Define "meaningful" Native American and Alaska Native tribal consultation under Federal law

2. Determine when lack of meaningful consultation enables tribes to sue federal agencies in order to stop or delay projects

3. Identify what steps project proponents can take to support the tribal consultation process and reduce risk