November 22, 2021
The Honorable Brenda Mallory
Chair, Council on Environmental Quality
730 Jackson Place, N.W.
Washington, D.C. 20503
RE: Comments on Proposed NEPA Regulations Revisions
CEQ-2021-0002
Dear Ms. Mallory:
Thank you for the opportunity to comment on the proposed revisions to the regulations implementing the National Environmental Policy Act (NEPA) issued by the Council on Environmental Quality (CEQ) in 2020. In our view the 2020 revisions are a move in the wrong direction because they reduce public input and analysis that is needed, especially for front line communities living near federal projects and energy development.
My name is Lisa DeVille. I am an enrolled citizen of the Mandan, Hidatsa, and Arikara nation. I and my family are lifelong residents of Mandaree on Fort Berthold Reservation in North Dakota. We live in the front lines of the Bakken oil and gas extraction where we witness the health, environment, and social impacts. I am co-founder of Fort Berthold Protectors of Water Earth Rights, an affiliate to Dakota Resource Council.
Dakota Resource Council was founded in 1978 to bring justice to farmers and ranchers adversely impacted by energy development. Dakota Resource Council’s mission is to promote sustainable use of North Dakota’s natural resources and family-owned and operated agriculture by building member-led local groups that empower people to influence the decision-making processes that affect their lives and communities. The main reason we are commenting is to highlight a North Dakota specific example that shows how problematic NEPA analysis under the 1978 NEPA regulations left a community irreparably harmed. We hope this example shows that any changes to NEPA need to be even stronger than the 1978 regulations to prevent situations like the one we will highlight in this comment.
I. Issues with the Fort Berthold Programmatic Mitigated Environmental Assessment
The specific example involves Fort Berthold Protectors of Water and Earth Rights (POWER) and the 2017 Mitigated Programmatic Environmental Assessment Oil and Gas Development on Trust and Minerals Fort Berthold Reservation (MPEA). The MPEA is the basis for unconventional oil and gas development on Fort Berthold Indian Reservation (FBIR) and as a result is a transformational document for the community, which opened the community up to fracking. Fort Berthold POWER was founded in 2015 by tribal citizens to combat the impacts of oil and gas development on FBIR. It is the result of the 2017 MPEA and the subsequent impacts from the massive oil boom that ensued that forced Fort Berthold POWER into action to work to reduce the impacts of oil and gas on our communities.
In our view, the NEPA analysis completed in the Fort Berthold MPEA, although extensive, is insufficient and downplayed many of the impacts now facing Fort Berthold. Members of Fort Berthold POWER contend that the Bureau of Indian Affairs should have completed a full Environmental Impact Statement (EIS) rather than taking the Environmental Assessment track, especially when it comes to allowing unconventional oil and gas development. Environmental Assessments are typically no more than 75 pages, unless given permission according to federal law The 2017 MPEA (which is a form of an Environmental Assessment) is more than 850 pages long containing hundreds of possible impacts, and despite all of the impacts in the document, somehow regulators signed off on a FONSI (finding of no significant impact) in 2018. Members of Fort Berthold POWER consider the fact that there was no Environmental Impact Statement for this an injustice to the people of Fort Berthold Reservation because it downplays the true impacts that the reservation faces every single day from oil and gas development. These impacts range from degraded air and water quality from spills and flares to human and drug trafficking from the black-market economies that often follow oil and gas development. Unfortunately, the only way to remedy this is to scrutinize the MPEA through costly litigation, which community members cannot afford. As a result, we propose that the CEQ consider an additional layer of review NEPA analysis for projects happening in traditionally marginalized communities like Fort Berthold.
II. Additional Layer of Review for Marginalized Communities Is Needed
To prevent more examples like the Fort Berthold MPEA from happening in the future there needs to be an additional layer of review added in the amendments to NEPA. Specifically, the new regulations should require the CEQ to further scrutinize NEPA analysis for projects or programs in traditionally marginalized communities like Native American communities. This is because marginalized communities have often been ignored by governmental processes and so have a distrust for governmental processes, and as a result, do not tend to participate as much as other communities.
To accomplish this much needed oversight, we propose the CEQ have a designated staffer that can further review NEPA analysis in traditionally marginalized communities by applying an “eye test” that allows the staffer to determine if on its face the analysis looks questionable. Examples like the Fort Berthold MPEA having a length of over 850 pages and associated FONSI, which likely should have required an Environmental Impact Statement (EIS), are great examples where additional review could have prevented or corrected the weaker NEPA analysis that occurred without additional review. The “eye test” should take into account both substantive (content of analysis, and if analysis takes into account all impacts) and quantitative (length of analysis and number of pages) elements in the analysis to determine whether further analysis needs to be completed or if the document is actually an Environmental Impact Statement disguised as an Environmental Assessment.
NEPA comment closed on 11-22-21.
More: Featured in USA Today article
Environmental activist Lisa Deville, a member of the Mandan, Hidatsa and Arikara tribes on the Fort Berthold Reservation in North Dakota, said she was happy to see agreements to reduce methanecome out of the global conference, but wants stricter methane emission policies at state and local levels that prioritize health.
Funding is needed, she said, for local research efforts to collect baseline pollution levels to guide such policy. Deville said she and her husband have had respiratory issues from the gas flares of oil wells connected to pipelines.
The Dakota Access Pipeline carries oil from Fort Berthold. The reservation is located on the oil-rich Bakken Formation, where a boom in oil and gas brought tribes new wealth – and concerns.
"We’ve been heavily extracted here," said Deville, who is president of the Fort Berthold Protectors of Water and Earth Rights and the EPA’s National Environmental Justice Advisory Council. "We live right next to flares surrounding our community."
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