Welcoming Our New Honorary Member: John Echohawk

Posted on June 29, 2020 by Andrea Field

One of the perquisites of serving as President of the ACOEL is being able to select this year’s Honorary Fellow of the College.  When faced with a stack of nominating papers, I asked my predecessor, Allan Gates, for guidance on how to make my choice.  Our conversation was roughly as follows.

Me:  What are the criteria for choosing an Honorary Member? 

Allan:  You’ll know it when you see it.

Me:  That’s the standard Justice Stewart applied when determining whether certain material was obscene.  As I recall it, his reference point was something he had seen in Casablanca.  Could you be a bit more helpful in explaining how that standard applies here?

Allan:  You’ll know it when you see it.

It turns out that Allan’s advice was spot on.  When I saw the nomination papers for John Echohawk, I knew without a doubt that he was the person who should become an Honorary Fellow of the College this year.  Let me here share with you some of the information that I received from College members about John Echohawk, information that made it very easy for me to choose John as this year’s ACOEL Honorary Fellow. 

John Echohawk – the Executive Director of the Native American Rights Fund – is a giant in the field of Native-American sovereignty, Tribal natural resources and environmental rights, and Tribal water rights.  He was the first graduate of the University of New Mexico’s special program to train Indian lawyers and was a founding member of the American Indian Law Students Association while in law school.  John helped found NARF in 1970 (barely a year after he graduated from law school), and he has served continuously as NARF’s Executive Director since 1977.  Under John’s leadership, NARF has represented Tribal interests in numerous high-profile cases in which his clients have sought, among other things, to protect the Badger-Two Medicine Area, prevent the shrinkage of Bears Ears National Monument, challenge the Trump administration’s plan to open up the Arctic National Wildlife Refuge, and halt the Dakota Access pipeline and the Keystone XL pipeline.

John is now widely recognized as having distinctly shaped and enforced Tribal sovereign rights through his organization’s legal advocacy.  The National Law Journal has listed John as one of the 100 most influential lawyers in America, and he has received numerous service awards and other recognition for his leadership in the Indian law field.  According to a June 24, 1988 profile in the New York Times, John’s success in asserting Tribal interests is so well known that “many public and private interests now seek to negotiate disputes with tribes over energy, water and sovereignty rather than face off in court against [Mr. Echohawk and his NARF colleagues].”  Noting that John is more than just a skilled attorney, the Times quoted from several governors who had been on the opposite side of the negotiating table from him in contentious matters and who came away from their experiences praising John’s collaborative style.  Said former South Dakota Governor Bill Janklow, John “genuinely wants to seek a solution where everyone can live together afterwards.”  And former Arizona Governor Bruce Babbitt then added that “if there is a charisma that emanates from silence, [John Echohawk’s] got it.”

Having started this article with a reference to one Supreme Court Justice, let me close with a reference to another.  I do so with an anecdote shared by Ken Salazar, who – over three decades – worked directly with John Echohawk on environmental and natural resources matters.  “We were both active Presidential appointees to the National Water Policy Commission in the 1990s.  During my time as Secretary of the Interior, I often sought Mr. Echohawk’s advice as we resolved the most complex and significant water rights Tribal cases in the United States and resolved seminal land trust management litigation. . . . John Echohawk is the Thurgood Marshall of Native American law.”

When told about his election as an Honorary Member of the College, John expressed thanks for the recognition and noted that the “Native American Rights Fund has always believed that environmentalists have the same values as traditional Native Americans.”  He said he looks forward to joining us “virtually” at our October 2, 2020 Annual Meeting. 

In addition to asking John to join us for our virtual meeting in 2020, we plan to invite him to join us for our next in-person Annual Meeting program, which is being planned for 2021.  It is a great honor to have John Echohawk become part of the American College of Environmental Lawyers.    

Trump Greenlights Keystone and Dakota Access Pipelines, but the Battle is Far From Over

Posted on January 26, 2017 by Patrick A. Parenteau

President Trump wasted no time making good on his promise to reverse President Obama’s efforts to reduce greenhouse gas emissions and move U.S. energy policy towards cleaner energy sources.  On January 24 Trump signed two executive memoranda, one inviting TransCanada to resubmit its application to build the 800,000 barrel a day Keystone XL pipeline from the Canadian oil sands to the Gulf Coast; the other directing the Army Corps of Engineers to expedite the review and approval of the Dakota Access Pipeline (DAPL) to carry approximately 500,000 barrels per day of crude oil from the Bakken shale in North Dakota to oil markets in the United States. But a close reading raises some sticky legal and economic issues that will have to be resolved before the oil starts flowing.  [LINKS to Keystone and DAPL Memos]

In announcing the Keystone Memo, Trump said that approval was contingent on TransCanada’s  willingness to “renegotiate some of the terms” – including perhaps a commitment to use US steel and a share in any profits. The problem is that tar sands oil is not only the dirtiest fuel on the planet, it’s also the most expensive to extract. To be profitable oil prices need to be above $80 per barrel; today they sit around $52, and it is unlikely they will rise much higher in the foreseeable future given the competition from shale oil and the fracking boom that is flooding the market in the US. The break-even point for Bakken shale oil is $29 per barrel. Seventeen major oil sands projects were canceled after oil prices crashed in 2014, as companies took major losses. Major investors in the oil sands have begun to leave, including Norway-based Statoil, which pulled out of the oil sands in December 2016. So cutting a deal to the President’s liking may be harder than it looks.

Assuming the deal goes down, the Keystone Memo issues several directives to clear the way for the project. It directs the State Department to make a final decision within 60 days of the date TransCanada re-submits its application, and it further specifies that “to the maximum extent permitted by law” the final supplemental EIS issued in 2014 shall satisfy the requirements of NEPA as well as the consultation requirements of the Endangered Species Act, and “any other provision of law that requires executive department consultation or review.” The Keystone Memo also directs the Corps of Engineers to use Nationwide Permit 12 to summarily authorize the stream crossings needed to complete the project. These fast track measures are sure to be tested in court by the opponents who are not about to let their hard won victory be snatched away without a furious fight—in the courts as well as in the streets. While courts have ruled that the presidential permit itself is not reviewable, there is presumably no bar to challenging the decisions of the Corps and the Department of Interior that are necessary to complete the project.

The DAPL Memo directs the Secretary of the Army and the Chief of the Corps of Engineers to “review and approve in an expedited manner, to the extent permitted by law and as warranted, and with such conditions as are necessary or appropriate, requests for approvals to construct and operate the DAPL, including easements or rights-of-way to cross Federal areas under section 28 of the Mineral Leasing Act.” The Memo also instructs the Secretary to consider whether to rescind the memorandum issued by the Obama administration requiring preparation of an EIS on DAPL’s   request for an easement to cross Lake Oahe, and to deem the previously-issued Environmental Assessment sufficient to satisfy NEPA.

The Standing Rock protest over DAPL has become an historic confrontation that has united an Indigenous land-and-water movement and climate activism to confront a fossil-fuel corporation protected by a militarized police force.  At one point in December thousands of veterans arrived to provide a safe space for the protesters who call themselves “water protectors.” Litigation filed by the Standing Rock Tribe and other tribes challenging the Corps’ issuance of permits under the Clean Water Act and Rivers and Harbors Act is pending in federal district court in the District of Columbia.  Judge Boasberg denied a preliminary injunction but has yet to rule on the merits of the case. At the moment, the court is considering DAPL’s motion for summary judgment to declare that the project already has all of the approvals it needs and the Corps should not be able to reverse its earlier decision that an EIS was not required. Though the Justice Department has vigorously opposed this move, it will be interesting to see whether the Trump administration adopts a different posture. In any event, the Tribe has raised serious questions about whether the Corps properly evaluated threats to its water supply intake and alternative routes that would lessen the risk. One of the allegations invokes environmental justice concerns arguing that the project was re-routed away from Bismarck in response to concerns about threats to its water supply. The Tribe has also raised novel questions about whether granting the easement would violate treaty rights under the 1851 Treaty of Fort Laramie.

At the hearing on DAPL’s motion for summary judgment, Judge Boasberg acknowledged the uncertainty about what the new administration might do but observed that “It’s not my business to guess.” For now the rest of us will have to guess at what the final outcome of this epic confrontation that has galvanized indigenous peoples from all over the world will be.

The New Administration’s Initial Executive Order and Memoranda On Energy and Environmental Issues

Posted on January 26, 2017 by Theodore Garrett

The Trump administration has issued a key Executive Order and several memoranda relating to energy and the environment.  The goal of the Executive Order -- Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects – is to expedite environmental reviews and approvals.  It provides that action by the Chair of the Counsel of Environmental Quality to designate an infrastructure project as high priority would trigger an expedited review and approval process, as described in the memorandum Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing.

Two other memoranda – those addressing the construction of the Keystone Pipeline and construction of the Dakota Access Pipeline – are intended to clear the way for approval of these two controversial pipelines.  The President also stated that he wants pipe for U.S. pipelines to be made with American steel.     

Finally, the White House issued a memorandum providing for a regulatory freeze of regulations that have not taken effect and withdrawal of regulations that have not yet been published in the Federal Register. In accordance with this directive, EPA has issued a notice postponing to March 21, 2017 the effective date of 30 regulations that were published by EPA after October 28, 2016.  The delay is intended to provide further review of these regulations by the new Administration.

The Order and memoranda do not change the requirements of relevant environmental statutes.  It remains to be seen to what extent these policies will affect future permitting or regulatory decisions.  Interested parties will wish to carefully monitor how these developments unfold.