Breaching Barriers: The Fight for Indigenous Participation in Water Governance

Abstract

Indigenous peoples worldwide face barriers to participation in water governance, which includes planning and permitting of infrastructure that may affect water in their territories. In the United States, the extent to which Indigenous voices are heard—let alone incorporated into decision-making—depends heavily on whether or not Native nations are recognized by the federal government. In the southeastern United States, non-federally recognized Indigenous peoples continue to occupy their homelands along rivers, floodplains, and wetlands. These peoples, and the Tribal governments that represent them, rarely enter environmental decision-making spaces as sovereign nations and experts in their own right. Nevertheless, plans to construct the Atlantic Coast Pipeline prompted non-federally recognized Tribes to demand treatment as Tribal nations during permitting. Actions by the Tribes, which are recognized by the state of North Carolina, expose barriers to participation in environmental governance faced by Indigenous peoples throughout the United States, and particularly daunting challenges faced by state-recognized Tribes. After reviewing the legal and political landscapes that Native nations in the United States must navigate, we present a case study focused on Atlantic Coast Pipeline planning and permitting. We deliberately center Native voices and perspectives, often overlooked in non-Indigenous narratives, to emphasize Indigenous actions and illuminate participatory barriers. Although the Atlantic Coast Pipeline was cancelled in 2020, the case study reveals four enduring barriers to Tribal participation: adherence to minimum standards, power asymmetries, procedural narrowing, and “color-blind” planning. We conclude by highlighting opportunities for federal and state governments, developers, and Indigenous peoples to breach these barriers.

Natural Gas Gathering and Transmission Pipelines and Social Vulnerability in the United States

“…These assessments describe how pipeline construction and operation may disrupt, for example, the ability of indigenous peoples to maintain place‐based food traditions or cultural practices. They also highlight the ways in which regulatory proceedings renew or exacerbate longstanding ethical and legal issues surrounding the participation of indigenous peoples in decision‐making about their own lands and communities (Emanuel & Wilkins, 2020; Honor the Earth, 2020; Tsleil‐Waututh Nation, 2015; Whyte, 2017). Occasionally, these assessments lead to agreements to provide redress for impacts to indigenous communities, or they serve to outline co‐management strategies (e.g., Vypovska et al., 2018).…”

“…In the US, federal EJ policy requires inclusion of socioeconomic analyses in pipeline regulatory reviews to help identify and address adverse environmental and other impacts that could fall disproportionately on vulnerable populations, as a result of permitted activities (e.g., Emanuel & Wilkins, 2020). For natural gas pipelines, federal regulators are also charged with determining whether projects are in the public interest (Kalen & Hsu, 2020).…”

“…Regulators and corporations must commit to early, good‐faith efforts to incorporate community perspectives into decision‐making. At present, however, power asymmetries between corporations and regulators on one hand and socially vulnerable communities on the other sometimes prevent timely and meaningful efforts to incorporate these perspectives into decision‐making about pipelines (e.g., Emanuel & Wilkins, 2020). Structural changes to the regulatory system may be required to overcome this particular barrier.…”

“…Nations oppose these projects not only because of concerns over pollution or risks to human health, but also because of the pipelines' potential to cause irreparable cultural harm by damaging or destroying present-day or ancestral territories with religious, historical, or cultural significance (e.g., Chen, 2020;Emanuel & Wilkins, 2020;Estes, 2019;Vypovska et al, 2018).…”

“…In particular, there is a pressing need to understand the extent to which large‐scale (e.g., regional or national) distribution of midstream pipelines may create or exacerbate societal inequities in environmental degradation, exposure to health risks, and other harms. Although individual pipeline projects can place disproportionately high and adverse burdens on racially marginalized and low‐wealth communities relative to reference populations in the regions surrounding these projects (e.g., Emanuel, 2017; Emanuel & Wilkins, 2020; Whyte, 2017; Wraight et al., 2018), there is no research on social inequities associated with the geographic distribution of the networks comprising many different pipeline projects.…”