Vermont Law Top 10 Environmental Watch List for 2020

Indian Country in 2020: Footsteps Worth Following

In 1953, famed Indian law scholar Felix Cohen wrote: “It is a pity that so many Americans today think of the Indian as a romantic or comic figure in American history without contemporary significance. In fact, the Indian plays much the same role in our society that the Jews played in Germany. Like the miner’s canary, the Indian marks the shift from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith.”

Given the Trump Administration’s views of Indian Country and of indigenous people generally, one might predict the fall of our democracy in 2020. Yet, amongst the smoky haze that is the current state of the environment throughout much of America, recent developments in Indian Country offer a breath of fresh air in the year to come. Tribes and tribal members have enacted or proposed numerous green energy developments, climate initiatives, and environmental policies of note. These include Navajo Nation shutting down Kayenta Coal Mine and the coal-fired Navajo Generating Station (NGS), the second-largest coal plant west of the Mississippi River, along with plans to close two other coal-fired power plants within the Nation’s boundaries by 2025, as well as proposed federal legislation to restore the original boundaries of the Bears Ears National Monument, established by President Obama, with the assistance of five regional tribes and indigenous members of Congress.

Navajo Generating Station

In 2017, Salt River Project (SRP), the owners of NGS, announced plans to close the plant at the end of 2019. Since 1974, NGS has employed more than 450 Navajo and Hopi tribal members and provided electricity to customers throughout Arizona and Nevada. NGS’s 2,250-megawatt capacity was fueled by coal from Peabody Western Coal Company’s Kayenta Mine, which is located on Black Mesa, in the Navajo Nation.

Navajo Nation could have assumed ownership of NGS and continued to run the plant, or sought a new owner or partner, but, instead, the tribal government decided to close NGS and Kayenta Mine. The closure decision was primarily due to operational costs increasing but was partly motivated by tribal concerns about the environmental impacts of mining and emissions from power plants. In addition, the tribe was concerned about the liability expenses associated with reclamation, which can reach hundreds of millions of dollars.

The Navajo Nation also considered a sale of NGS to Navajo Transitional Energy Corporation, a coal company organized under Navajo laws and owned by the Navajo Nation, but the tribe ultimately rejected NTEC’s bid. Instead, the Navajo Nation Council announced that its priorities were shifting away from fossil-fuel based energy systems and towards a healthier and more diverse economy based on tourism, alternative energy development, carbon credits, and governmental initiatives addressing climate change.

Federal Legislation

Meanwhile, in Washington, D.C., Representative Debra Haaland (NM-01), an enrolled member of Laguna Pueblo, has introduced two bills in 2019 that directly respond to President Trump’s executive order reducing the Bears Ears and Grand Staircase-Escalante national monuments, proposing to restore the Monuments to their pre-Trump size. Trump’s 2017 presidential proclamations had removed 2 million acres of protection, resulting in the largest rollback of protection for national monuments in U.S. history. The Bears Ears National Monument, as proposed by Navajo Nation, Hopi Tribe, Pueblo of Zuni, and two Ute tribes, which President Obama created in 2016, protected tribal ancestral lands and hundreds of thousands of culturally significant sites, including ancient dwellings, ceremonial sites, and natural and cultural resources used by the Coalition tribal members today.

Haaland describes President Trump’s 2017 executive orders as an unlawful attack on tribal and national cultural values and cites oil and gas drilling within the original monument boundaries as the likely reasoning behind Trump’s actions. Administration officials deny that the review of Bears Ears was connected to energy development, but according to The New York Times, and other news outlets, internal agency documents prove that fossil fuel interests weighed heavily into President Trump and the Department of Interior’s decision to reduce both Monuments.

The legal question of whether Trump had authority to reduce these Monuments has yet to be answered by the federal district court considering two consolidated lawsuits seeking to invalidate the Monument reductions. But that question, and the lawsuits, might be rendered moot through a congressional act to restore the original monument boundaries. Representative Haaland’s bill, the Bears Ears Expansion and Respect for Sovereignty (BEARS) Act, would reinstate the original boundaries of the monument and protect a total of 1.9 million acres of land, consistent with the tribes’ original request to President Obama. Further, the proposed legislation would require federal land managers to consult with tribal elected representatives, serving on a tribal advisory commission, to “ensure that management decisions affecting the monument reflect tribal expertise and traditional and historical knowledge.”  The litigation and the BEARS Act are significant legal developments to watch in 2020.

Rep. Haaland has also co-sponsored the America’s Natural Treasures of Immeasurable Quality Unite, Inspire, and Together Improve the Economies of States (ANTIQUITIES) Act of 2019, which clarifies that only Congress has the authority to modify a national monument. This bill would protect other monuments under threat, establish a fund to manage and enhance monuments, and designate new wilderness areas inside national monuments. Both the ANTIQUITIES and BEARS Acts are still in the initial legislative stages, working their way through committees as of this writing. The bills still need to come to a full floor vote in the House and Senate and be signed into law by the President. However, parts of Haaland’s bill were already enacted as law as part of the Public Lands Package that was signed by the President in March 2019.

Looking Forward

While predicting the overall course of 2020 is difficult given the current political climate in Washington, these developments in Indian Country offer a bright spot on the environmental horizon. They also demonstrate how tribes have, in some ways, flipped Cohen’s canary analogy on its head. Instead of waiting to see how and whether Washington will take steps to protect tribal lands, water quality, and support sustainable economic development in Indian Country, tribes are mapping the future on their own terms, using tribal and federal law to secure a future that reflects tribal environmental and economic values. These developments will certainly be worth tracking in 2020, and beyond.