‘Consultation does not equal consent’

Division of Coastal Resources Management acting director Rich Salas presents recommendations for a meaningful engagement with the community for federal agencies during the webinar on environmental justice considerations in National Environmental Policy Act reviews held last Sept. 23, for Pacific Islanders. The webinar also had officials from the U.S. Environmental Protection Agency discussing NEPA and environmental justice, and CNMI House Committee on Natural Resources chair Rep. Sheila Babauta for the CNMI perspective. Photo is a screenshot of the webinar. (CONTRIBUTED PHOTO)

The CNMI laid its stance on meaningful engagement in the Pacific before officials of the U.S. Environmental Protection Agency during a webinar on environmental justice considerations in National Environmental Policy Act reviews last Friday, Sept. 23, for Pacific Islanders.

House Committee on Natural Resources chair Rep. Sheila Babauta talked about environmental justice in the Marianas while Division of Coastal Resources Management acting director Rich Salas discussed the island’s experience on and recommendations to the NEPA process.

NEPA, signed into law back in 1970, is the “national charter for environmental responsibility,” crafted to ensure that federal agencies consider the significant environmental impact of their proposed actions, and that they inform the public about their decision making process. These actions include 1) actions by federal agencies (i.e., military training, federal facilities, forestry, National Parks), 2) federal permits (gas pipelines, offshore oil and gas), and 3) federal grants (water treatment, infrastructure).

While actions are explicitly identified on the NEPA, the impacts are a different story.

“We, as EPA, don’t tell the agency what a significant impact is,” USEPA Region 9’s Connell Dunning said. “The lead agency makes that decision, and then explains the rationale for those decisions [and] for what’s the significant effect. It’s important to consider. It’s the context or the setting of an effect that can have an impact on whether or not something is significant.”

The second part of understanding significance and how lead agencies think about it, Dunning added, is the degree or intensity of the effect, and considerations for what are the long- or short-term impacts, as well as impacts on public health and safety.

NEPA ties in with environmental justice as it allows for an avenue—a solid process for the public to review and assess actions that are being proposed by federal agencies and could affect the public and their environment.

Environmental justice

In 1994, then-President Bill Clinton issued Executive Order 12898, setting the stage for environmental justice in the country. It directed federal agencies to identify and address “the disproportionately high and adverse human health or environmental effects” of their programs, policies, and activities on minority and low-income populations.

It also directed the agencies to develop strategies toward environmental justice, as well as provide minority and low-income communities access to public information and public participation.

“Each person should enjoy a healthful environment. However, not everyone has been given that same opportunity,” USEPA Region 9’s Environmental Justice coordinator Alan Bacock said at the webinar. “In general, people who live, work, play, and pray in the most polluted environments are commonly people of color, indigenous, and/or low income. These communities suffer from disproportionate impacts of environmental burdens.”

Environmental justice, Bacock added, is about “moving to where we want to go”—and that is bound by two key principles—fair treatment and meaningful involvement.

The EPA official also said that earlier this year, President Joe Biden issued Executive Order 14008, one task of which is increases the government’s ability to address current and historic environmental injustices.

NEPA from the NMI’s perspective

In the CNMI, when it comes to NEPA, most of the documents that warrant a review are proposed military activities of the U.S. Department of Defense, typically associated with the proposed relocation of the military forces to the Marianas region, according to DCRM acting director Rich Salas.

CRM assesses NEPA documents as it relates to the enforceable policies of the Bureau of Environmental and Coastal Quality.

“Pursuant to the requirements of Section 307 of the Federal Coastal Zone Management Act, federal actions which have reasonably foreseeable effects on uses on resources within the coastal zone should be undertaken in a manner that is consistent with the enforceable policies of the Coastal Resource Management Program,” he said.

Salas, in particular, talked about the Mariana Islands Training and Testing, particularly the review of the supplemental Environmental Impact Statement. “It’s an extension of the military’s training range. They’d like to propose activities associated with terrestrial activities and marine activities. We saw that when we reviewed the documents, the activities that were proposed on land were minimal in terms of foreseeable coastal effects, but when it came to the activities that occurred at sea, we’ve determined that there were reasonably foreseeable effects.”

According to Salas, numerous consultations were held between both the CNMI government and the federal agency, which agreed to not include amphibious landings on the island of Tinian, where sea turtles nest.

From the initial release of the draft EIS in 2011 leading up to the final supplemental EIS in 2019, Salas said that the CNMI government strived to provide meaningful comments and collaborate closely with the Department of Defense.

“It took a lot of time and effort in our teams to build up to where we were, to reach a point to where we were able to express our concerns from the CNMI’s end and have the DOD consider the actions,” Salas said. “We always appreciate the opportunity to work with our federal counterparts, but despite that, at the end of the day, there were still a lot of unaddressed concerns. There are still many questions and data gaps that we had requested for them to provide to the CNMI.”

“We worked on that through this process, and it was great that the NEPA was able to support that process because we stuck to that. The procedural concerns was a big part of the response of the CNMI resource agencies,” he added.

In his presentation, Salas also threw in some recommendations for the federal agencies, particularly to develop more transparent and frequent means of information, and a knowledge exchange process, to meaningfully engage with the community.

“We do the best we can with the resources that we have out here, but at the same time, we are still left in the dark at times,” he said.

Meaningfully engage with the CNMI

“It is very important to engage with our people, share knowledge, and encourage youth participation, when plans are being proposed, ” said Babauta, who highlighted the intimate connection of the people of the Marianas to the environment, which she said is so profound that language was actually included in the CNMI Covenant agreement to ensure this connection was clear during negotiations with the United States.

Section 806 of the Covenant, which established the CNMI’s political union with the U.S., states that “the United States will continue to recognize and respect the scarcity and special importance of land in the Northern Mariana Islands.”

The legislator also referenced the very first public meeting she attended that was held by a federal agency, where she was “completely shocked” by the agency’s limited knowledge about the community, as she provided recommendations on how federal agencies can establish a more meaningful engagement.

“Community engagement is meaningful to us. We are pleased when the effort is made and we make the effort and return to attend. …We’ve really got to make an effort just to inform the community,” she said.

And for Babauta, effort is going all out in utilizing all forms of communication—newspaper ads, radio announcements in all three official languages, radio interviews, articles in newspaper, billboards erected and strategically placed—to inform the CNMI community of meetings related to proposed actions by federal agencies.

Effort is providing accessibility—in terms of time, location, how the meeting will be conducted, how comments will be accepted, the timelines—to ensure that members of the community get to participate.

The legislator also emphasized the importance for the federal agencies to recognize and accept oral comments during public meetings and hearings.

“I really want to emphasize how important that is to us because we are an indigenous community that passed information, stories, knowledge orally from generation to generation. Accepting oral comments was a really crucial part of community participation,” she said. “[Also,] consultation does not equal consent. To us, it is only the first part of the process.

At the webinar, the USEPA also pointed out that the Biden administration is focused on advancing environmental justice and climate justice and equity for all, and that underway are executive orders that will direct federal agencies to examine current practices, and figure out and overcome barriers to equity.