FERC Revises Policy Statement On Consultation With Indian Tribes In Commission Proceedings

The Federal Energy Regulatory Commission (FERC) has announced amendments to its Policy Statement on Consultation with Indian Tribes in Commission Proceedings (Policy Statement). Revisions were published in the Federal Register on October 24, 2019. 84 FR 56940. The updated Policy Statement clarifies that FERC will use its environmental documents and agency decisional documents to communicate how tribal input has been considered; clarifies that tribal treaty rights are considered in agency decisionmaking; and adds corporations established under the Alaska Native Claims Settlement Act to the entities with whom FERC will consult pursuant to the Policy Statement.

The 2003 Policy Statement

FERC originally issued a Policy Statement on Consultation with Indian Tribes in Commission Proceedings in 2003. In that statement, codified at 18 C.F.R. 2.1c, FERC sets outs guidelines for its decisionmaking processes that may have implications for Indian tribes and acknowledges foundational principles concerning the unique relationship between the United States and Indian tribes as defined by treaties, statutes and case law, including:

Indian tribes have various sovereign authorities, including the power to make and enforce laws, administer justice, and manage and control their resources; Through several executive branch authorities, departments, and agencies are directed to consult with federally-recognized tribes; As a federal agency, FERC has trust responsibility to Indian tribes that requires it to adhere to certain fiduciary standards in its dealings with Indian tribes; Consultation should involve direct contact between agencies and tribes and should recognize the status of the tribes as governmental sovereigns; FERC will assure that tribal concerns and interests are considered whenever its actions or decisions have the potential to adversely affect tribes or Indian trust resources; FERC will seek to engage tribes in high-level meetings to discuss general matters of importance, such as those that uniquely affect the tribes; and Among FERC's goals will be an effort to develop working relationships with tribes and establish procedures to educateFERC staff about tribal governments and cultures and to educate tribes about FERC's various statutory functions and programs. The 2003 Policy Statement includes two other features worth noting. First, it gives special attention to FERC's hydroelectric licensing process - likely due in part to the fact that FERC issued regulations regarding the licensing of hydroelectric highlights concurrently with publication of the...