20140957 Ver 2_Public Notice Comments_20170819 (160)

Strickland, Bev
From:Ryan Emanuel <[e-mail]>
Sent:Saturday, August 19, 2017 4:59 PM
To:SVC_DENR.publiccomments
Cc:Burdette, Jennifer a; Nicholson, John A.
Subject:ACP Comments
Attachments:Emanuel_ACP_Comment.pdf

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Comments of Ryan E. Emanuel, Ph.D. on the Atlantic Coast Pipeline*
The Atlantic Coast Pipeline is a 36"-42" diameter natural gas pipeline proposed to extend
approximately 600 miles from West Virginia's Marcellus Shale to endpoints in Virginia and
North Carolina (1). The developer, a partnership of utility corporations, contends that the project
is needed to meet the region's growing energy needs and estimates that nearly 80% of the
pipeline's capacity would be used to generate electricity for the utilities (1), which have reduced
their dependence on coal in recent years. The remaining 20% of the pipeline's capacity would
be split between commercial, residential and other purposes (1).
The North Carolina Department of Environmental Quality has been tasked with evaluating the
discrete and cumulative water quality impacts of the project under Section 401 of the Clean
Water Act. The state has the authority to grant, grant with conditions, deny, or waive its
certification of a project based on its review of the application and other relevant materials. My
written comments focus on two areas of the developer's Pre -construction Notification to the
USACE, and it also summarizes broader concerns that I have spoken and written about before.
Cumulative Impacts
The unusual size and scope of this project requires an appropriately heightened level of scrutiny
and oversight by state regulators. This is especially true for linear energy projects, which have
relatively small direct footprints but, by their very nature, are designed to have outsized
cumulative impacts. In the case of the Atlantic Coast Pipeline, these impacts are best
summarized by the primary project purpose, as stated in the final environmental impact
statement (1):
to serve the growing energy needs of multiple public utilities and local distribution
companies in Virginia and North Carolina by using the natural gas to generate
electricity for industrial, commercial, and residential uses. (emphasis added)
Thus, even though the Atlantic Coast Pipeline directly impacts a narrow corridor through eastern
North Carolina, the purpose for which the developer seeks approval (i.e., meeting regional
energy needs) implies significant indirect impacts to the region. Moreover, the developer has
conducted a multi-year advertising and public relations campaign promoting future economic
growth and development along the proposed pipeline corridor fueled by the Atlantic Coast
Pipeline (2). Both federal filings (e.g., environmental impact statements) and the developer's
advertising and public relations campaign suggest that the cumulative impacts of the Atlantic
Coast Pipeline include new development and infrastructure that extend well beyond the linear
project corridor.
The developer's claims of industrial and commercial growth are not unrealistic. With no major
natural gas pipeline presently crossing eastern North Carolina, it is likely that the Atlantic Coast
* [e-mail]. Dr. Emanuel is an Associate Professor and University Faculty
Scholar in the College of Natural Resources at NC State University. He is an enrolled member of
the Lumbee Tribe. His comments do not reflect official views of NC State University or the
Lumbee Tribe.

Pipeline would spur new development. Even though direct natural gas consumption by non-
utility consumers is expected to use only 9% of the pipeline's capacity, this still leaves a
potential for 135 million cubic feet per day of gas available for industries in Virginia and North
Carolina.
The developer has provided no specific information about industry sectors that would be
attracted by utility -scale natural gas, but the recent (20-30 year) trend toward industrialized meat
production in eastern North Carolina suggests this is a logical sector to leverage natural gas.
Indeed, Sanderson Farms recent decision to locate their St. Pauls poultry facility - a heat and
energy intensive operation - directly along the Atlantic Coast Pipeline corridor is evidence that
the project will continue to attract meat processing facilities and accompanying wastewater land
application systems and networks of industrial -scale animal sheds. Land application systems and
animal sheds bring distinct water quality issues (3). Other industries, including advanced
manufacturing bring concerns related to stormwater, emerging contaminants, and more.
Nevertheless, the developer's formal Pre -Construction Notification to the USACE states that
there would be no anticipated future impacts associated with the project that have water quality
implications. Specifically, the developer responds "No" to question F3A: "Will this project
(based on past and reasonably anticipated future impacts) result in additional development,
which could impact nearby downstream water quality?" The developer's supplemental materials
do not elaborate on any impacts related to regional economic stimulus alluded to in their federal
filings or in their advertising and public relations campaigns.
The apparent contradiction is striking. If there are no cumulative impacts associated with
development spurred by the pipeline, then why has the developer's advertising and public
relations campaign focused so intensively on potential economic development in rural and
underserved regions of North Carolina? If the pipeline is expected to spur economic
development, particularly with respect to industrialized agriculture, then these cumulative
impacts should be discussed in the Clean Water Act filings and evaluated by regulators.
Given the expected impact of the Atlantic Coast Pipeline on economic development in eastern
North Carolina, the Department of Environmental Quality should not make a decision on Section
401 Certification until these cumulative impacts have been evaluated in greater detail.
Cultural Resources
Section Fla of the Pre -Construction Notification asks "Will the project occur in or near an area
that the state, federal, or tribal governments have designated as having historic or cultural
preservation status?" The developer responded "No" to this question, and supplemental
information provides vague statements about coordination with SHPOs and federally -recognized
tribes to comply with Section 106 of the National Historic Preservation Act.
As stated during a state government-sponsored meeting of tribal leaders on August 9, 2017 in
Hollister, NC (report from NC Commission of Indian Affairs forthcoming), tribes do not have
strong relationships with NC SHPO, and tribes lack resources to seek National Register of
Historic Preservation listing for their own cultural and sacred sites. This does not mean such
sites do not exist. As stated during the meeting of tribal leaders, the developer's utter failure to
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engage tribes in the early stages of the planning process has now placed tribes in an "emergency
response" situation where tribal leaders are forced to react immediately to comply with state and
federal permitting timelines.
For under -resourced tribal communities dealing with chronic poverty, poor health, and the
lingering effects of Hurricane Matthew, these timelines represent completely unreasonable
expectations for documenting cultural and historic sites. The refusal of federal regulators to
acknowledge demonstrated disproportionate impacts on tribes (4) only exacerbates this situation,
because it allows federal and state regulators to assume that few if any tribal communities are
impacted by the project. In reality, no demographic group will be affected as greatly as Native
Americans; they represent 1.2% of North Carolina's population, but make up over 13% of those
living within one mile of the proposed route through the state. With 30,000 Native Americans,
25% of North Carolina's indigenous population, affected by the pipeline, there is no other
infrastructure project in review in the US today that would have as great an impact on Native
Americans as the Atlantic Coast Pipeline.
The Department of Environmental Quality should not make a decision on Section 401
Certification until (1) the disproportionate impacts are formally acknowledged by federal and
state regulators, and (2) meaningful consultation occurs between government agencies, tribal
governments, and other parties regarding the impacts of this project on Native American
populations and on cultural and sacred resources of North Carolina's tribes.
Avoidance
The developer states in Supplement Section D1 that federal environmental review includes
treatment of project alternatives. However, the final environmental impact statement published
by FERC does not include a meaningful discussion of major alternatives, including the no action
alternative. The federal review summarily dismissed the no action alternative and alternative
energy solutions because it claims to be incompatible with the purpose of transporting natural
gas (1). However, as shown in the quoted text above, the executive summary of the
environmental impact statement declares that the primary purpose of the Atlantic Coast Pipeline,
and the reason why it seems a certificate of public convenience and necessity, is to generate
electricity.
While the pipeline is, indeed, designed to transport natural gas, it is an over -simplification to
claim that this is the primary purpose of the project, when the stated motivation for the project is
to generate electricity. Existing contracts showing 80% electricity production confirm that the
main purpose of the project is to generate electricity. For this reason, the federal environmental
review's dismissal of alternative energy solutions seems highly suspect.
The developer's certificate of public convenience and necessity may hinge on the fact that most
of the gas will be used for electricity generation. The federal environmental review's curt
dismissal of alternatives that do not "transport natural gas" are disingenuous and need to be
revisited. The Department of Environmental Quality should not make a decision on Section 401
Certification until a thorough, independent evaluation of alternative energy solutions has been
conducted. For example, what would a $4.513 investment (i.e., the cost of the Atlantic Coast
Pipeline) in renewable energy look like for North Carolina, Virginia, and West Virginia?
3

In lieu of a detailed evaluation of alternative ways to meet electricity needs, the federal
environmental impact statement should be revised to reflect the developer's actual project
objectives, including transporting natural gas from shale formations to power plants and other
facilities owned primarily by the developing partners.
Other Considerations
Finally, I wish to raise additional considerations that involve the Department of Environmental
Quality but are broader in scope too, and include the Department of Commerce, the NC
Commission of Indian Affairs, and the NC Attorney General's office.
As I mentioned during the public listening session in Lumberton on August 17, 2017, The
Atlantic Coast Pipeline's expected economic benefits will be dwarfed by the climate impacts of
"business as usual" fossil fuel development (S). This development includes construction of
projects such as the Atlantic Coast Pipeline. Health, economic, and other damages associated
with climate change under the "business as usual" scenario are expected to cost North Carolina
approximately $18B per year by the end of this century (6). The developer's economic analyses
and these climate -related analyses cover different time periods, but it is unlikely that the
economic benefits of this project or other fossil fuel infrastructure projects will offset multi-
billion dollar annual losses to the state expected from un -checked climate change. North
Carolina agencies should weigh the cost of climate change in their evaluation of the
environmental and economic impacts of this proposed pipeline.
While reviewing the developer's proposal, state officials should also weigh reports of unethical
easement acquisition practices by agencies representing the pipeline developer. On April 20,
2017, I attended a meeting with the NC Attorney General's staff in Raleigh to hear from
landowners along the pipeline route. I would encourage DEQ officials to consult with the
Attorney General's staff who attended this meeting as the state of North Carolina seeks to
answer the broader question of the extent to which this project serves the public trust.
I am also available for consultation on matters related to water, climate, and environmental
justice. I am one of North Carolina's leading scientific experts when it comes to the intersection
of these three areas. I am also submitting, for the written record, other documentation that I have
provided to FERC and published recently related to the Atlantic Coast Pipeline. They follow the
references and notes of this document.
References and Notes:
1. Final Environmental Impact Statement for the Atlantic Coast Pipeline, Federal Energy
Regulatory Commission. (December 30, 2016).
2. The Energy Sure Coalition: How was EnergySure created? http://energysure.com/the-
coalition/default.aspx; Atlantic Coast Pipeline FaceBook public relations site:
https://www.facebook.com/acpipeline/; Atlantic Coast Pipeline: Economic Benefits: New
Industries and Manufacturing Jobs htips:Hatlanticcoastpipeline.com/about/economic-
benefits.asp
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3. Surface-Water Quality in Agricultural Watersheds of the North Carolina Coastal Plain
Associated with Concentrated Animal Feeding Operations, US Geological Survey
https://pubs.usgs.gov/sir/2015/5080/; Hydrologic Impacts of Municipal Wastewater
Application to a Temperate, Forested Watershed
https://dl.sciencesocieties.org//publications/jed/abstracts/45/4/ 1303?access=0&view=pdf
4. Emanuel RE (2017) Flawed Environmental Justice Analyses, Science
http://science.sciencemag.org/content/357/6348/260.1
5. Estimating economic damage from climate change in the United States, Science
http://science.sciencemag.org/content/356/6345/1362.full
5

Comments to the Federal Energy Regulatory Commission on the Draft Environmental
Impact Statement for the Atlantic Coast Pipeline, LLC, Dominion Transmission, Inc. and
Atlantic and Piedmont Natural Gas. Co., Inc. (Docket Nos. CP15-554-000, -001; CP15-555-
000; and CP15-556-000)
By: Ryan E. Emanuel, Ph.D.
Date: April 6, 2017
1. Introduction
My name is Ryan E. Emanuel, and these are my comments on the draft environmental
impacts statement for the Atlantic Coast Pipeline. I hold a Ph.D. in Environmental Sciences, and
I am an Associate Professor and University Faculty Scholar in the Department of Forestry and
Environmental Resources at North Carolina State University (NC State). NC State is the largest
academic institution in the state, and it is one of our two land grant institutions. I lead a research
program that focuses on hydrology, ecology, atmospheric science, geoscience and integrated
topics, including climate change, socio -ecological systems, and indigenous knowledge. My
research program spans North Carolina and extends to other parts of the US and Latin America.
I am an enrolled member of the Lumbee Tribe, and I serve the broader American Indian
community in various ways, including as an ex officio member of the North Carolina
Commission of Indian Affairs' Environmental Justice committee. You can find my curriculum
vitae and other information on my website: go.ncsu.edu/water. These comments constitute my
professional opinions and do not necessarily reflect the views of NC State, the Lumbee Tribe, or
the Commission of Indian Affairs.
My comments principally concern environmental justice, but I also raise issues related to
the no -action alternative and attribution of climate change impacts. Of these comments, the
environmental justice concerns are most serious; the analysis is fatally flawed and has led to
false conclusions regarding disproportionate impacts, particularly concerning American Indians.
Section 2 exposes the conceptual and mathematical details of these flaws and discusses the
implications. I also provide a basic, but mathematically and conceptually sound analysis of
impacts on American Indians, which I offer to regulators as a starting point for new analyses. In
it, I reveal that the pipeline stands to impact nearly 30,000 American Indians, representing one
quarter of the state's indigenous population and I% of the US indigenous population. No
pending infrastructure project stands to affect as many American Indians as the ACP. In light of
these impacts, I explain the importance of tribal consultation. I show that federal and
international guidance documents recommend such consultation, even when tribes are not
federally recognized.
Section 3 shows that ignoring alternative energy and conservation practices amounts to
selective acknowledgement of electricity production as a key purpose of the ACP; electricity
production is a widely -touted purpose where it benefits the pipeline, yet it ignored at key
junctures in the DEIS. This section also raises systematic issues with absolution of responsibility
for climate change impacts during the environmental review process. Ignorance of an effect's
magnitude does excuse responsibility, particularly when the direction of the impact (here, a net
increase in greenhouse gas emissions) is known. In total, my comments focus on what I believe
are at once the weakest but most critical parts of this environmental review. These are the big -
picture issues that federal regulators should be best equipped (and most qualified) to handle.
Ironically, these seem to be the sections of the DEIS that have received the least attention. There
R. Emanuel: ACP Comments, Docket Nos. CP15-554-000,-001; CP15-555-000; CP 15-556-000

are no easy fixes to the systemic issues that I raise. Nor should there be; environmental justice
and climate change are major challenges of our time. If regulators move forward without
acknowledging, remedying, and weighing the implications of (1) fundamental errors in their
environmental justice analyses and associated conclusions, (2) selective acknowledgement of
electricity production as a valid purpose for some parts of environmental review but not others,
or (3) ignoring climate change impacts because the ACP is only one small contributor of
greenhouse gases out of many under federal oversight, then they do so with full knowledge that
their review is flawed in design and logic, and that present and future generations of poor and
minority citizens will suffer because of their oversight. I hope, instead, that regulators choose to
revisit these analyses and conclusions, draw additional insight and advice from experts in
relevant fields, and produce a clearer, more accurate accounting of the environmental impacts of
this project.
2. Environmental Justice Analysis
2.1 Overview
Environmental justice analyses are mandatory in federal Environmental Impact
Statements, but there is no standard method for computing disproportionate impacts 1-4. As such,
researchers have raised concerns for many years about potential misapplication of methods or
tailoring of methods to support a predetermined outcome 2'3. The environmental justice section of
the Atlantic Coast Pipeline's draft Environmental Impact Statement (DEIS) appears to be an
example of such misapplication. The DEIS concludes there will be no disproportionate impacts
on poor or minority communities along the preferred route. However, when the data in
Appendix U are analyzed in a statistically appropriate manner, they reveal large disproportionate
impacts on American Indians. The failure of the analysis reported in Section 4.9.9 to detect such
disproportionate impacts on one particular minority population calls into question its conclusions
related to other populations, and it undermines the rigor of environmental justice analysis as a
whole.
2.2 Description of Major Flaws
The environmental justice analysis in the DEIS concludes that the preferred route has no
disproportionate impacts on minority communities. It draws this conclusion by counting up the
number of census tracts with "meaningfully greater" minority populations than the reference
populations of the counties in which it they are located. According to the DEIS, this analysis is
grounded in guidance from Executive Order 12898 and the EPA; however, this particular
approach to analyzing environmental justice impacts has fatal flaws in numerical analysis and
overall design that render results un -interpretable and prevent regulators from drawing
meaningful (or correct) conclusions about impacts on vulnerable populations.
2.2.1 Mathematically inappropriate comparisons among census tracts
The process of counting census tracts with "meaningfully greater" minority populations
fails to account for large differences in population and racial makeup among census tracts and
also among counties serving as reference populations. These large differences are described in on
p. 4-412 and tabulated in Appendix U of the DEIS. Because the census tracts vary widely in
population, one cannot simply compare the number of blocks with "meaningfully greater"
minority populations to the number of blocks with smaller minority populations and draw
' The DEIS mistakenly refers to Appendix V when referring to results presented in Appendix U.
R. Emanuel: ACP Comments, Docket Nos. CPI 5-554-000,-001; CP15-555-000; CP 15-556-000

conclusions about disproportionate impacts. This approach assumes all census tracts carry the
same weight in the analysis, but this is not the case in terms of population, area, and many other
statistics associated with these census tracts. Such an approach would conclude that a census
tract with a population of 1186 predominantly white residents (e.g., WV CT 9601.01) would
exactly counterbalance another census tract of 7167 predominantly minority residents (e.g., NC
CT 9603). This comparison is mathematically incorrect, and it drastically increases the odds of
arriving at false conclusions for the ACP study area, a region where large minority populations in
one area can be completely masked out by small, predominantly white populations elsewhere.
Additionally, the process of counting up the number of census tracts with "meaningfully
greater" minority populations and comparing this to the total number of census tracts along the
proposed route fails to account mathematically for the effects of changing baseline conditions
from one county to the next. County -level data certainly provide valuable comparison statistics
for census tracts, but when the baseline data change for each county (as is the case here), one
loses the ability to draw meaningful mathematical comparisons across county lines. For example,
the DEIS states on p. 4-412 for North Carolina, "In 13 of the 42 census tracts, the minority
population is meaningfully greater than that of the county in which it is located." The implied
interpretation here is that since the number of census tracts with large minority populations is
smaller than the number of census tracts with few minority residents, there must be no
disproportionate impact on minorities. However, this interpretation is only valid if the baseline
demographics used to compute "meaningfully greater" populations are the same for each county.
In this case, the 42 census tracts within North Carolina use eight different reference populations
to determine "meaningfully greater." If the baseline demographic data change from county to
county (and they do, based on Appendix Table U1), any attempt to draw conclusions about the
proportion of census tracts with large minority populations is invalid outside of a single county.
However, this is exactly what the present environmental justice analysis attempts to do.
Moreover, as differences in baseline data increase among counties, the risk of under -predicting
(or over -predicting) impacts on minority populations increases. Because county -level
demographics vary widely over the proposed pipeline route, the environmental justice
conclusions of the DEIS cannot be supported by the current analysis in section 4.9.9.
The existing environmental justice analysis hinges on assumptions that census tracts are
uniform in population sizes and that reference areas are uniform in demographic characteristics.
These assumptions are not stated in the DEIS; rather, the mathematical method chosen for this
analysis demands that these assumptions be met. In fact, these assumptions are simply untrue,
and this has led to invalid comparisons of census tracts in the environmental justice section of the
DEIS. At face value, it may seem that census tracts are similar units that can be compared side
by side. However, the census tract statistics that have been chosen for comparison cannot be
tallied up, because they ignore both the weighting effects of actual population sizes and the
mathematical constraints of shifting baselines.
The design of the existing analysis, which involves simply comparing the number of
census tracts above or below a threshold, fails to provide a means to evaluate statistical
significance of the results. A statistically robust analysis would, minimally, involve pooling all of
the impacted census tracts for each state, and comparing this test population with a suitable
reference population drawn from each state. This method would allow regulators to (1) compute
disproportionality rates from the demographic profiles of test and reference populations and (2)
determine whether these rates are statistically significant using tests such as the Wilcoxon Rank -
R. Emanuel: ACP Comments, Docket Nos. CP15-554-000,-001; CP15-555-000; CP15-556-000

Sum test or the T-test. This method can be conducted for minority population as a whole and for
specific racial or ethnic categories.
2.2.2 Ambiguous definition of "meaningfully greater"
The method for determining "meaningfully greater" poses mathematical problems for
comparing census tracts. Footnote 20 (p. 4-412) defines "meaningfully greater" as ten
percentage points higher than the comparison group. By defining differences in terms of
percentage points, the analysis masks relevant information in areas where minority (or poor)
populations are either very small or very large. At the small end of the scale, a reference
population that comprises, say, 2% minority individuals would require that the test population be
at least 12% minority in order to identify a disproportionate impact. In this example, the
proportion of minority residents of a census tract would have to be six times greater than the
reference proportion before the tract registers as "meaningfully greater." This places an
unusually high (6x) detection threshold on the census tract, and it increases the risk of
overlooking a disproportionate impact in predominantly white areas of a study region.
At the other end of the spectrum, regions with predominantly minority (or poor)
populations include census tracts that are already surrounded by large minority (or poor)
populations. If a reference population is already, say, 65% minority, then the present analysis
requires a census tract to have a minority population of 75% before it is classified as
disproportionately impacted. Here, the analysis forces a strange proposition — census tracts with
some of the highest minority populations along the entire route are excluded from the
"meaningfully greater" category in the broader analysis simply because they are situated in a
majority -minority county. Indeed, Table U1 reveals census tracts in North Carolina with
minority populations in excess of 75% that do not count towards the disproportionate impacts of
the project as whole because they are situated a county with a disproportionately large minority
population (70%) compared to the rest of the study area. This example highlights a key problem
with the present environmental justice analysis. Whether the analysis uses a fixed percentage
point exceedance or some other metric, correct identification of a reference population is crucial
for determining the scale at which the analysis may be interpreted.
In the case of the ACP, use of county -level reference populations in the "meaningfully
greater" computation means that counties cannot be compared directly with one another. More
specifically, the definition of "meaningfully greater" must be further defined as "meaningfully
greater than the county in which the census tract is located." Given this mathematically
constrained definition, the present analysis is incapable of determining disproportionalities for
the project as a whole; it simply answers a series of county -by -county questions about
disproportionate impacts on minority populations. One purpose of federal oversight on projects
of this scale is to ensure that the project as a whole does not place disproportionate impacts on
vulnerable populations. This purpose simply cannot be achieved by the present analysis.
2.3 Implications of Flaws
The inability of the environmental justice analysis to evaluate disproportionate impacts
for the project as a whole raises serious concerns about its utility. Given that a key purpose of an
environmental justice analysis is to reveal the extent to which poor and minority populations may
bear a disproportionate share of a project's environmental cost, an analysis that concludes no
impacts for a project traversing large regions with substantial minority populations (e.g., Halifax,
Northampton, Robeson Counties, NC) and poor populations (e.g., Brunswick, Buckingham
R. Emanuel: ACP Comments, Docket Nos. CPI 5-554-000,-001; CP15-555-000; CP 15-556-000

Counties, VA) while skirting adjacent whiter, wealthier areas (e.g., Albemarle, VA; Wake, NC)
should raise serious concerns among regulators. In the case of the ACP, this is not a hypothetical
scenario. Not only does the project cross areas of high poverty in rural Appalachia, but it also
runs through the so-called "Black Belt 599 of Virginia and North Carolina. Both regions have
borne disproportionate shares of environmental burdens throughout US history, and their local
populations live with an unfortunate legacy of past environmental decision making in which they
have had little or no part. These are, quite literally, the textbook study regions for environmental
justice. Federal regulators should be first to acknowledge these large-scale, multi -state patterns
of inequity and to hold petitioners accountable for their activities in these regions. Instead, the
environmental justice conclusions of this DEIS hinge on what is essentially a series of county -
level calculations, combined in a mathematically indefensible fashion, and hard -wired to ignore
important regional demographic patterns that frame the project as a whole.
2.4 Realistic Environmental Justice Analysis
In the previous sections, I offered technical suggestions for remediating the flawed design
of the current environmental justice analysis. Here I provide an example of a more realistic
environmental justice analysis that pools census tract data in a statistically appropriate manner.
This example analysis could be expanded and applied to other demographics throughout the
study area as a whole. Data from Appendix U show that in North Carolina alone, approximately
30,000 American Indians live in census tracts along the route. To place this number in a larger
demographic context, it represents one quarter of the state's American Indian population and 1%
of the entire American Indian population of the US. To put this in qualitative terms, there is no
other energy project currently under federal review that stands to impacts as many American
Indians as the ACP.
When populations are summed for census tracts along the North Carolina portion of the
pipeline route, I find that 13.2% of the total population of these census tracts identifies as
American Indian. For the North Carolina counties in which these census tracts are located,
American Indians constitute 6.2% of the population. American Indians constitute 1.2% of the
entire population of the state of North Carolina. Figure 1 compares aggregate census tract,
county, and state -level statistics.
Using either the county -level
data or the state -level data as a
baseline, we find that the proposed
route impacts American Indian
populations at disproportionate rates.
Within the affected counties, the
proposed route is 2.1 times as likely to
impact American Indians as expected
based on the appropriate reference
population. In this case, the
appropriate reference is the total
population of the selected counties.
Within the state of North Carolina, the
proposed route is I I times as likely to
impact American Indians as expected
based on the appropriate reference
Figure 1: Statewide American Indian population of North
Carolina compared to populations of counties and census
blocks impacted by the proposed Atlantic Coast Pipeline
State, 1.2% American Indian
Non -Indian
Impacted Counties,
6.2
Impacted Census
Tracts, 13.2
R. Emanuel: ACP Comments, Docket Nos. CP15-554-000,-001; CP 15-555-000; CP 15-556-000

population. Here, the appropriate reference is the state -level population.
When data from Table U are properly aggregated, and when appropriate reference
populations are selected, we find that the proposed route undoubtedly imposes disproportionate
impacts on American Indians. By comparing the state -level, county -level, and tract -level results
further, we can begin to understand the underlying reasons. Specifically, comparing state -level
data to the impacted counties reveals the large-scale route of the pipeline through North
Carolina's "Black Belt," where many of the state's American Indians have maintained
continuous settlements for centuries. The Meherrin, Haliwa-Saponi, Coharie, and Lumbee tribes
in particular claim ancestral territories in North Carolina's Coastal Plain", and the proposed
pipeline route passes, preferentially, though their ancestral territories relative to other regions of
the state. Hence, it is no surprise that a pipeline through this region of the state would impact
American Indians disproportionately.
At a finer scale, the data show that the pipeline would still impact American Indians
disproportionately, even in a region of the state where their populations are already high relative
to the state as a whole. Many of these census tracts surround the historic Lumbee community of
Prospect. This community is situated within a larger cultural landscape of historical and spiritual
importance to many Lumbee people. This community is also the southern terminus of the
proposed pipeline. Why the developers would plan to route the project through this community
or locate its terminus here is unknown. Nevertheless, the choice to route the pipeline through this
culturally significant landscape and through other areas of significance to other tribes explains, in
part, why American Indians, who continue to live in and around these culturally significant
landscapes, are impacted disproportionately by this project. In providing this analysis, I hope to
demonstrate to regulators how an appropriate choice of reference population, combined with
culturally relevant knowledge about the pipeline route can provide a more accurate view of
environmental justice concerns related to American Indians.
2.5 Tribal Consultation and Environmental Justice
Given the disproportionate impacts on American Indians revealed in the previous section,
I recommend that the regulatory agency engage in formal consultations with governments of the
Meherrin, Haliwa-Saponi, Coharie, and Lumbee Tribes in North Carolina and with tribal
governments in Virginia as well"' The four tribes listed above are recognized by the state of
North Carolina, and the pipeline crosses each tribe's ancestral territory. Tribes have lived in
these areas for many centuries, and they maintain unique cultural and religious attachments to
specific lands and waters of their ancestral homelands. Given relatively weak relationships
between North Carolina tribes and the state's Historic Preservation Office, and given lack of
resources available to tribal governments, little information is publicly available about cultural or
religious sites of importance to these tribes. Thus, regulators should be proactive in approaching
these tribes to learn, firsthand, about their needs and priorities.
" The Waccamaw Siouan tribe also inhabits the Coastal Plain, but the proposed route does not appear to
pass through their territory. It would be safest to contact them as well as all Virginia tribes.
"' The list of tribes is not exhaustive. North Carolina recognizes four additional tribes, and it is possible
that members of these tribes or members of other federal or non-federal tribes may be among those
impacted. Several tribes are currently based in Virginia as well.
R. Emanuel: ACP Comments, Docket Nos. CP15-554-000,-001; CP15-555-000; CP 15-556-000

Regulators are not compelled by law to enter into high-level consultations with state
recognized (i.e., non-federal) tribes, but NEPA and NHPA guidance documents iv advise
regulators to engage non-federal tribes in formal consultation in light of the unique, place -based
relationships that indigenous peoples hold with their traditional landscapes and natural resources.
In the case of the ACP, regulators have already set a precedent for offering consultation status to
entities other than federally recognized tribes when they granted consultation status to the Nelson
County (VA) Board of Supervisors under Section 106 of the NHPA. If a non -indigenous group
can receive consultation status under a federal law that protects cultural landscapes, surely
indigenous tribes, regardless of their federal status, can receive similar consideration.
In addition to federal law, the United Nations Declaration on the Rights of Indigenous
Peoples affirms the right of all indigenous peoples to give "free, prior, and informed consent" to
governments before they undertake activities that affect indigenous lands and life ways. The
Declaration provides additional guidance on the nature of consultation with indigenous peoples,
and the US has endorsed the Declaration since 2010. Earlier this year, a UN Special Rapporteur
on the rights of indigenous peoples visited the US to document issues surrounding energy
development, tribes, and consultation. Her initial report' highlights deficiencies in federal policy
surrounding tribal consultation and points to larger structural problem in federal -tribal
relations. In particular, the rapporteur notes:
"The goal of tribal consultation is not simply to check a box, or to merely give tribes a
chance to be heard. Rather, the core objective is to provide federal decision makers with
context, information, and perspectives needed to support informed decisions that actually
protect tribal interests."
I urge regulators to take the rapporteur's advice seriously and engage in meaningful
consultation that surpasses form letters or emails. Even a basic environmental justice analysis
that handles data appropriately (e.g. Section 2.4 above) reveals disproportionate impacts of the
ACP on indigenous peoples. The impacted tribes of North Carolina and Virginia, regardless of
their federal recognition status, deserve appropriate high-level consultation with regulators given
the fact that their ancestors once owned most of the region under discussion. Through a long
history of war, dishonest dealings, disenfranchisement, segregation, and environmental racism,
their land holdings were diminished and degraded to the small fractions that remain today. Yet
their spirits and voices have not been so diminished. Engage in meaningful discussion to learn
about the cultural landscapes, sensitive ecosystems, and historical contexts that underlie tribal
interests and concerns related to this project. Recognize the vast asymmetry that exists between
federal resources and tribal resources in areas of finance, personnel, and information. Send
FERC tribal liaison, Elizabeth Molloy to meet with individual tribal governments and with the
North Carolina Commission of Indian Affairs — the state -authorized body dealing with issues of
concern to all American Indian tribes within North Carolina.
1° Advisory Council on Historic Preservation, Consultation with Indian Tribes in the Section 106 Review
Process: A Handbook, June 2012; National Environmental Justice Advisory Council, Guide on
Consultation and Collaboration with Indian tribal governments and the public participation of indigenous
groups and tribal members in environmental decision making, November 2000.
End of Mission Statement by the United Nations Special Rapporteur on the rights of indigenous peoples,
Victoria Tauli-Corpuz of her visit to the United States of America, March 2017.
R. Emanuel: ACP Comments, Docket Nos. CP15-554-000,-001; CP 15-555-000; CP 15-556-000

Engagement and consultation between regulators and tribes should take place in a way
that is fundamentally different from outreach efforts that have occurred to date. Here I refer to
efforts led primarily by pipeline developers. Their in-person efforts to engage tribal communities
through open houses and other presentations might best be classified as marketing activities. Far
from high-level discussions with tribal leaders and elders, activities occurring since 2014 in and
around tribal communities could be described as marketing efforts by pipeline developers aimed
at emphasizing potential advantages of the project while downplaying risks. One key objective of
these efforts appears to be the collection and dissemination of endorsements from communities
along the pipeline. The ever-growing body of online advertisements leveraging endorsements
from individuals, local governments, and other groups suggests that pipeline developers treat
community interactions as opportunities to fuel public relations and advertising campaigns. A list
of endorsers on Dominion's website'' points to this mindset as well. Interestingly, as of April 6,
2017, the website still lists the Haliwa-Saponi Tribe of North Carolina among "ACP Supporters"
even though the tribe formally revoked it support months ago after learning about pipeline
impacts not revealed by corporate representatives during outreach activities.
Developers have every right to pursue outreach and public relations activities that
portray their projects favorably, but these activities are not consultation as defined by the
Advisory Council on Historic Preservation, the National Environmental Justice Advisory
Council or the United Nations. Dissemination of information and material in tribal communities
that deliberately highlights advantages and downplays risks of a project while simultaneously
seeking to leverage public endorsements for future advertising cannot be construed as
consultation by any definition. These activities, together with developers' strategic gift giving in
communities along the pipeline route, could be described more accurately as asymmetric power
plays by corporations that made decisions long ago without input from vulnerable communities.
Now these corporations seek to check the proverbial box of consultation in the exact manner that
UN Special Rapporteur Tauli-Corpuz warned against. Such one-sided corporate engagement
efforts together with untenable analytics have now placed pipeline developers and regulators in a
difficult position to defend: On one hand the DEIS claims no disproportionate impacts on
minority communities, but on the other hand the project would impact a substantial fraction of
the largest indigenous population of the eastern United States.
The stark disconnect between the environmental justice analysis and reality not only
reflects major flaws in the present study, but it also bears resemblance to some of the factors
underlying indigenous resistance to the Dakota Access Pipeline (DAPL). In that case, Energy
Transfer Partners pursued public relations -oriented outreach with the Standing Rock Sioux Tribe,
but the proposed route was strongly criticized by tribal leaders in 2014. Federal regulators (here,
USACE) missed important opportunities to understand and weigh tribal priorities and concerns
pertaining to NHPA Section 106 and other regulations. Had meaningful consultation occurred,
ideally during the route -planning portion of the project, changes could have been made to
address tribal concerns. Mass demonstrations, protests, and public outcry against DAPL may not
have occurred. In this respect, DAPL serves as a cautionary tale to developers and regulators
who may view consultation as an obstacle to overcome rather than an opportunity to learn more
about the communities being asked to shoulder the cultural and environmental burdens of such
projects.
There are important distinctions between DAPL and ACP related to indigenous peoples,
including the fact that most indigenous peoples along the ACP route belong to non-federal tribes
https://www.dom.com/about-us/news-center/natural-gas-proj ects-and-initiatives/atlantic-coast-pipeline
R. Emanuel: ACP Comments, Docket Nos. CP15-554-000,-001; CP15-555-000; CP15-556-000

and are not entitled to consultation by law. However, federal agency guidance and federally
endorsed international guidance (Footnotes iv and v) advise consultation with indigenous
peoples regardless of recognition status. The social, political, and historical reasons explaining
why tribes lack federal recognition are many and complex, but tribes' claims to their ancestral
territories are demonstrable and significant. Given that the indigenous population along the ACP
is more than double the combined population of the Standing Rock Sioux Tribe and Cheyenne
River Sioux Tribe (the two tribes leading legal opposition to the DAPL), a prudent approach for
ACP developers and regulators would involve immediate and meaningful consultation with
governments of all tribes whose citizens stand to be affected by this project.
3. Alternative Energy and Climate Change
Alternative energy sources are not considered in the no -action alternative (Section 5.1.15)
because regulators claim that generation of electricity is beyond the scope of the proposed
project. Specifically, the DEIS states that "the purpose of ACP and SHP is to transport natural
gas" (p. ES -13, 5-26). However, this statement does not accurately reflect the primary purpose of
the project, as defined by the petitioner. According to Section 1. 1, the primary purpose for the
project is electricity generation (p. 1-2). Indeed, most of the gas (79%) is intended for electricity
generation. That the petitioner adds "by using the natural gas to generate electricity" to its
purpose statement does not negate the fact that the principal motivation for this project is
electricity generation. The DEIS contains numerous discussions that emphasize the project's
intended purpose of generating electricity. The DEIS highlights the growing need for electricity
in the region (p. ES -2), the economic advantages of gas -derived electricity (p. 3-3, 4-408), the
greenhouse gas advantages of gas -derived electricity over coal (4-512), and improvements to
regional air quality as electricity production shifts from coal to gas (ES -13). The principle
petitioners, Duke Energy and Dominion Power, are mainly in the business of producing
electricity. According to Duke Energy's most recent annual investor report"", the company's
electricity entities — Duke Energy Carolinas and Duke Energy Progress — will be the pipeline's
principle customers.
A reasonable reading of the DEIS alone or in combination with corporate materials
reveals that electricity generation is, unquestionably, the overarching motivation for this project
and the principle counterbalance for all of the environmental and socioeconomic impacts
identified during the review. With this in mind, to claim that conservation and alternative energy
cannot be considered in the environmental review because the purpose of the project "is to
transport natural gas" is, at best, disingenuous. If the scope of this environmental review is
limited to transporting natural gas, then all of the aforementioned benefits of gas -derived
electricity should be struck from the DEIS. If these benefits remain in the review, then
regulators implicitly acknowledge that the purpose of the project is to generate electricity, and
they are obliged to carefully consider both alternative energy and conservation measures
throughout the review. Either acknowledge electricity generation consistently in the DEIS, or
ignore it altogether. Selective ignorance is indefensible.
Including alternative energy in the environmental review is important given North
Carolina's emerging role as a national leader in solar and wind energy. Utility -scale and smaller
initiatives are underway across the state, and a major influx of new natural gas supplies has the
potential to serve as a double-edged sword. On one hand, as developers will correctly argue,
https://www.duke-energy.com/_/media/pdfs/our-company/investors/de-annual-
reports/2016/2016annualreport.pdf
R. Emanuel: ACP Comments, Docket Nos. CPI 5-554-000,-001; CP15-555-000; CP 15-556-000

natural gas may serve as a steady -load complement to less predictable inputs of wind and solar
projects. On the other hand, new pipeline infrastructure will lock the region into decades of
continued dependence on an unsustainable and, ultimately, dangerous source of energy in terms
of its climate change potential.
The best available science suggests that greenhouse gas emissions need to be curtailed
significantly and immediately. Replacing coal with natural gas may result in a relative decrease
in greenhouse gas emissions, but when fugitive methane emissions are considered together with
the added combustion capacity described in the DEIS, the ACP still results in a net increase in
greenhouse gas emissions over 2017 and moves us toward the worst-case scenario of climate
change"'. The DEIS acknowledges that greenhouse gas emissions associated with the ACP will
contribute incrementally to climate change, but it fails to assign the project any responsibility for
those incremental changes (p. 4-511). Although we may not be able to determine the magnitude
of climate change assignable to the ACP, we know the sign of its impacts. In other words, the
ACP will unquestionably sustain the release of carbon dioxide and methane into the atmosphere
over the project's lifetime. Inability to quantify the degree of change attributable to a particular
project does not absolve the project from any responsibility whatsoever, particularly when the
direction of change is unquestionable.
Federal regulators are fully aware of the greenhouse gas implications of natural gas
development, including the development of shale gas from central Appalachia6'7, and I will not
provide a detailed review of those implications here. Instead, I point out that ignoring all climate
change implications simply because we cannot assess the degree of contribution is unsustainable
and irresponsible policy. If each fossil fuel infrastructure project is reviewed by this standard,
then the federal agency responsible for reviewing and authorizing such projects will never have
an opportunity to weigh in on the most serious, cumulative impact of the totality of such projects.
4. Conclusions and Recommendations
The DEIS contains a thorough review of many topics of environmental concern to
stakeholders along the pipeline route. However, the review process, in its current form, has
failed to ensure that its environmental justice obligations have been met. A poor environmental
justice analysis failed to detect important demographic patterns that manifest as disproportionate
impacts on poor and minority communities (particularly American Indian communities) at
multiple spatial scales. In terms of consultation with American Indian tribes, regulators and
petitioners have been demonstrably active, but the activities described in the DEIS are strongly
geared toward public relations and marketing by petitioners and should not be misconstrued as
consultation. Although regulators are not bound by law to consult with most of these tribes
because of their non-federal status, federal and international guidance documents recommend
doing so.
The broader question of whether the review of this project has satisfied its environmental
justice obligations demands that American Indian tribes and other vulnerable communities along
the pipeline route have a seat at the decision making table. A seat at the table means that these
Globally, we are tracking the RCP8.5 emissions scenario from the latest round of general circulation
model projections. The scenario shows that human greenhouse gas emissions will drive warming
globally, and this will manifest as climate change (e.g., warmer summers in the Southeast, declining
snowpacks in the American West, more extreme weather globally, etc.) RCP8.5 is commonly referred to
as the "worst case scenario" and is generally accepted by scientists and most of the world's decision
makers as an unsustainable trajectory.
R. Emanuel: ACP Comments, Docket Nos. CPI 5-554-000,-001; CP15-555-000; CP 15-556-000

communities' perspectives matter, not only on the back end (i.e., after the route has been
determined) but on the front end as well. Whether regulators acknowledge it or not, these
communities are the least equipped to deal with either guaranteed or probably impacts of climate
change. Along the ACP, these impacts include, most notably, a significant increase in summer
peak -load electricity usage due to increasing summer temperatures$.
To remedy issues raised with the DEIS, I recommend that regulators first create a new
environmental justice analysis, ideally in partnership with federal staff or academic researchers
who are familiar with common challenges of such analyses. The National Environmental Justice
Advisory Council would be a logical place to begin the search for a partner. Once the new
analysis has been performed, I encourage regulators to grapple with tough questions that will
likely arise due to disproportionate impacts on poor and minority populations along the route,
particularly in North Carolina. While it is true that the petitioners have already worked for years
to secure easements along the proposed route, their ignorance of environmental justice
obligations or reliance on flawed methodologies does not excuse the requirement to perform the
analysis correctly and take the results seriously.
Furthermore, I recommend that the FERC immediately set up in-person meetings
between its tribal liaison and governing bodies of impacted tribes along the proposed route. This
issue is too important to relegate to emails or form letters (ask the USACE or the Standing Rock
Sioux Tribe). During meetings, the liaison should inquire about prior interaction between tribes
and petitioners, including open houses, informational meetings, and gift giving activities in and
around indigenous communities. This information will provide valuable context and help
regulators understand the status of relationships and interactions between tribes and petitioners.
In addition to meeting with tribes, I recommend the liaison attend an upcoming quarterly
meeting the North Carolina Commission of Indian Affairs. This body informs and advises the
state government on all issues of concern to tribes, including issues related to environment,
economic development, and public health.
I also advise regulators to correct the logical inconsistency in the DEIS dealing with the
selective failure to consider electricity production as the main purpose of the ACP. The
petitioners themselves promote this purpose, and DEIS states that this is the purpose in many
instances where it promotes a benefit or offsets an impact. Please also reconsider the failure to
weigh climate change impacts simply because the magnitude of impact cannot be determined.
This is shortsighted policy and logically inconsistent. If this practice continues in environmental
reviews, global society will pay a heavy toll due to our unwillingness to count the cost of our
continued reliance on fossil fuels.
References and Notes
1 Rose, L., Davila, N. A., Tzoumis, K. A. & Doenges, D. J. Environmental Justice
Analysis: How Has It Been Implemented in Draft Environmental Impact Statements?
Environmental Practice 7, 235-245 (2005).
2 Hartell, A. Methodological challenges of environmental justice assessments for
transportation projects. Transportation Research Record: Journal of the Transportation
Research Board, 21-29 (2007).
3 Holifield, R. Environmental Reviews and Case Studies: Accounting for Diversity in
Environmental Justice Screening Tools: Toward Multiple Indices of Disproportionate
Impact. Environmental Practice 16, 77-86 (2014).
R. Emanuel: ACP Comments, Docket Nos. CP15-554-000,-001; CP 15-555-000; CP 15-556-000

4 Liang, J. Defining Environmental Justice Communities for Regulatory Enforcement:
Implications from a Block - Group - Level Analysis of New York State. Review of
Policy Research 33, 666-685 (2016).
5 Glaser, J. M. Back to the black belt: Racial environment and white racial attitudes in the
South. The Journal of Politics 56, 21-41 (1994).
6 Howarth, R. W., Santoro, R. & Ingraffea, A. Methane and the greenhouse -gas footprint
of natural gas from shale formations. Climatic Change 106, 679 (2011).
7 Caulton, D. R. et al. Toward a better understanding and quantification of methane
emissions from shale gas development. Proceedings of the National Academy of Sciences
111, 6237-6242 (2014).
8 Auffhammer, M., Baylis, P. & Hausman, C. H. Climate change is projected to have
severe impacts on the frequency and intensity of peak electricity demand across the
United States. Proceedings of the National Academy of Sciences, 201613193 (2017).
Professional Contact Information:
Ryan E. Emanuel, Ph.D.
Ryan_ emanuelAnc su. edu
Ph. 919-513-2511
R. Emanuel: ACP Comments, Docket Nos. CP15-554-000,-001; CP15-555-000; CP15-556-000

Environmental Justice for American Indian Communities in North Carolina: What is it,
and why does it matter to us? — Ryan E. Emanuel, Ph.D. (NC Indian Unity Conference,
March 10, 2017, Charlotte, NC)
http://nativeenvironment.weebly.comlblog/environmental justice-and-tribal-consultation-at-the-
north-carolina-indian-unity-conferenc e3 005 3 76
1. Introduction
American Indians have made great strides in promoting wellness, education, and
economic development for our people here in North Carolina. For me, the Unity Conference is a
place to celebrate our successes in these areas, and it is also a place to build strategies for future
success in other areas. Today, I'd like to speak about one area where I see opportunities for
tribes to step forward and lead in ways that benefit not only Indian people, but also all North
Carolinians. In particular, I want to discuss the landscapes that make up our tribal territories,
sacred lands, and waters. These landscapes are critical parts of our cultures and tribal identities.
Think, for example, about the ways in which we identify our tribes. My tribe, the
Lumbee, draws its name from the river. We are sometimes known as "people of the dark
water*." The Meherrin call themselves "people of the water*," in reference to the expansive
rivers, wetlands, and sounds. The Eastern Band of Cherokee are known as "people of Kituwa," a
sacred, mother town*. From the "people of the falling star*" (Waccamaw Siouan) to the "people
of the Coharie River*," (Coharie), North Carolina tribes identify themselves by the landscapes

where they live or once lived. We are our sacred places. To be sure, we are more than these
places alone, but we are not the same without them.
Envisioning Sacred Space
Close your eyes for a moment and envision the place that you come from. It may not be
the place where you currently reside, and it might be a place that you have not visited for a long,
long time. Reach back into your mind and call up that place. Maybe you see forests, rolling
hills, and farmland. Perhaps you see dense swamps where river birches form an arching canopy
over an intimate stream, or perhaps you see a powerful river with stately cypress trees guarding
its banks. Do you see craggy mountain peaks fading into intimate hollows of laurel and
rhododendron, or do you see the endless rows of your grandparents' tobacco field or their
vegetable garden? Immerse yourself in the environment as you think of the sights, the sounds,
and the smells of these places.
With your eyes still shut, think about the surroundings, close by and far away. No stream
exists without its valley, no river without its headwaters. No homestead exists apart from
surrounding fields, forests, paths, or driveways. Whatever you envision, all of the elements -
land, water, homes, sky - make up a landscape. Those landscapes help define who we are as
individuals and who we are, collectively, as members of tribes. Over countless generations, we
came to know the lands and waters as we know our family. We named the places, plants, and
creatures, and they became our relatives. We became part of them, and we learned from them.
Our ancestors' bones mingled with soil and water, and the places became sacred. Sacred places
— sacred landscapes — are what I hope you envisioned in your mind's eye, and I also hope that

you recognized the things that make them sacred. Those of us who live away from home do not
joke when we tell others that we are visiting the "Holy Land." Please open your eyes.
Federal Agencies and Sacred Space
Government agencies like to categorize things, and it turns out they even have categories
and labels for sacred places. The US Department of Interior calls these "cultural landscapes*"
and defines them as areas made up of natural and cultural features, including wildlife, geological
formations, and a host of natural and human elements. The Department also notes that these
landscapes have historic, cultural, aesthetic, religious, or ceremonial value. The federal
Advisory Council on Historic Preservation takes this idea further, stating for indigenous peoples,
sacred, cultural landscapes* contain the memory of generations of people interacting with the
environment. The Advisory Council informs agencies that cultural landscapes include sights and
sounds as well, noting that impeded views or loud noises can interrupt the ceremonial nature of a
cultural landscape.
I point out the federal government's attention to cultural landscapes for a couple of
reasons. First, I find it encouraging that our government recognizes sacred places as more than a
single grave, tree, rock, or structure; a sacred, cultural landscape is an entire area in which these
things are embedded. In other words, a sacred space is more than the sum of individual
components; a place can be sacred to indigenous peoples because of the larger environment in
which it exists, and because of the cultural history that has become ingrained in that
environment. Disrupting this environment, even indirectly through the sounds of traffic noise or
through disrupting a scenic view, can desecrate a cultural landscape.

Second, I want to point out some very real implications that flow from the government's
attention to cultural landscapes. Whenever the federal government is involved in funding or
permitting activities on public or private lands, federal laws require government agencies to
consider impacts on cultural landscapes — including sacred landscapes of indigenous peoples. I
want to point out two federal laws that support this requirement. The first law is the National
Historic Preservation Act*, which placed the federal government in a position of responsibility
and leadership to protect and steward places of historical significance within the United States.
The National Register of Historic Places* is the best-known list of sites protected by the act. The
second law is the National Environmental Policy Act*, which gave the federal government
responsibility for protecting and enhancing the environment nationwide. This law also laid the
groundwork for ensuring that no community bears a disproportionate share of pollution or other
environmental burdens*. Both of these laws require that federal agencies consider how new
highways, dams, pipelines, and other jurisdictional projects impact the surrounding environment,
and this includes impacts to sacred, indigenous landscapes.
This raises an important question — How does the federal government identify cultural
landscapes? Do they only consider sites on the National Register of Historic Places? Simply
put, no. The National Register is one source of information for federal agencies, but not the only
one. Agencies also rely on state historic preservation offices* to report on historic places,
including cultural landscapes. When a jurisdictional project like a highway or a pipeline is
proposed, state historic preservation offices can inform the federal government about sites that
could be impacted. Reports from this office help federal agencies decide whether or not to

permit those activities. Corporations and other permittees can hire their own consultants to
conduct surveys and collect data for supplemental reports on cultural resources. These kinds of
reports are often the only resources that let federal agencies know if a project places any sacred,
cultural landscapes at risk. With that in mind, I have a follow up question— How many people in
this room have a good working relationship with the state historic preservation office? Do your
tribal officials have relationships with this office? Do you have a tribal historic preservation
office? If not, are you comfortable with the state reporting on landscapes and spaces considered
sacred by your tribe? Can the state office adequately convey the sacred nature of the
landscapes that you envisioned when I asked you to close your eyes earlier? We are our
sacred places. Think about that for a moment.
For projects involving federal oversight, agencies have other obligations besides
evaluating impacts on cultural landscapes. The federal government is charged with ensuring that
all people are protected equally from environmental hazards, including health hazards. Federal
agencies are also responsible for ensuring that everyone has equal access to environmental
decision-making. Together, equal protection from environmental hazards and equal access to
environmental decision-making are known as "environmental justice." The modern concept of
environmental justice was actually born here in North Carolina, under unfortunate circumstances
that involve a grave injustice to our Haliwa-Saponi brothers and sisters.
Environmental Justice
In the 1970s, a Raleigh -based corporation deliberately dumped thousands of gallons of
chemicals called PCBs along roadside ditches in eastern North Carolina, including roadsides

surrounding Hollister*. PCBs are highly toxic and can cause cancer, neurological issues,
respiratory ailments, and other health problems*. After the crime was revealed and the extent of
the pollution documented, the state excavated contaminated soil from roadsides and disposed of
it in a new landfill located in Warren County. The site of the landfill was a nearby African
American community. The original crime and the subsequent decision about siting the landfill
revealed deep racism in environmental decision-making, because poor and minority communities
bore all of the environmental risk, yet they were excluded from the decision-making process.
Today's environmental justice movement rose in response to the Warren County tragedy and
similar events elsewhere.
Environmental justice is now encoded into federal policy. Whenever federal funding or
permits are involved in projects that have environmental impacts, agencies are required to
consider whether the project places disproportionate risks on vulnerable communities, including
poor and minority communities. Federal agencies must also ensure that the voices of these
communities are incorporated into the decision-making process. Environmental justice measures
take on a range of formats across federal agencies and can include listening sessions, public
meetings, and the like*.
For indigenous peoples, the National Environmental Justice Advisory Committee has set
a higher bar for environmental justice. The committee's guidance to federal agencies* reminds
government officials that all of the United States once belonged to sovereign indigenous nations;
over time, tribal sovereignty and land ownership eroded, but the government still has an
obligation to consult with tribes on activities that impact their modern or ancestral lands. The
committee points out that tribal needs and priorities are distinctly different from those of
stakeholders or the general public. Federal agencies are required to consult with federally

recognized tribes before approving activities that may impact tribal lands, but the committee also
recommends consultation with non-federal tribes on these activities. In particular, the
committee's guidance on consultation and collaboration with non-federal tribes states:
"Although such groups lack recognition as sovereigns, they may have environmental and
public health concerns that are different from other groups or from the general public.
These differences may exist due to a subsistence lifestyle and/or unique cultural
practices. Agencies should seek to identify such groups and to include them in the
decision-making processes." — National Environmental Justice Advisory Council*
The take-home message here is that federal policy acknowledges that tribes, regardless of
recognition status, are not typical stakeholders. The environmental concerns of tribes demand
special attention, and that attention comes in the form of tribal consultation. The Advisory
Council on Historic Preservation also recognizes the special concerns of all tribes when it comes
to cultural landscapes, and it has issued similar guidance for consulting federal as well as non-
federal tribes*.
Consultation
This raises one last set of questions: What is consultation? Who consults with whom? Is
it an email from the federal agency? Is it a form letter from the company pursuing the project?
Formally, consultation is a process that takes place between the federal government and a tribal
government*. A key activity of consultation is relationship building between these governments.
(The radio show Native America Calling hosted an excellent discussion of consultation recently,
and it is well worth the listen.) The goal of the tribe is to protect its interests, and the goal of the

federal government is to understand and respect tribal interests. These can be sacred or religious
interests, environmental or economic interests. Remember that federally recognized tribes are
already acknowledged as sovereign governments in this process, but state -recognized tribal
governments may also receive consulting status on a project -by -project basis. (Virginia has put
together an FAQ that includes consultation with state recognized tribes.*)
Unfortunately, there is a long history of failed consultation between the federal
government and tribes. The events at Standing Rock surrounding the Dakota Access Pipeline*
stem largely from failed consultations. The recent court battle hinges partly on what the tribe
views as the Corps of Engineer's failure to hold high level, government -to -government
discussions at an early stage in the planning process. In 2011, several years before the events at
Standing Rock, the Advisory Council on Historic Preservation recommended that agencies
consult with Indian tribes in a timely fashion to identify sacred sites and landscapes*. The
Council advised that doing so would minimize the chances of desecrating cultural landscapes,
and it would also avoid unnecessary delays to the permitted project. It seems that the federal
government may not have taken its own advice in this case, and we have seen indigenous people
suffer as a result.
Without consultation, the federal government cannot know the needs and interests of
tribes. Your tribe may oppose or support a particular project, but consultation is an act of
sovereignty that tribes should take seriously. Tribes can use their consultation status to ensure
environmental justice for their communities — in other words, to ensure that our people do not
receive a disproportionate share of pollution or other environmental burdens. Consultation status

also places tribes at the table should the project disturb cultural artifacts or the graves of our
ancestors*. Tribal citizens can and should provide input as individuals, but consultation status is
reserved for the interests of a tribe as a whole. History has taught us that if we don't speak up for
consultation status, and if we don't guard it vigilantly, we cannot expect to be heard, and we
cannot expect a seat at the table when it comes to environmental decision-making. After the
Unity Conference, I will post a link to key resources on my website*.
Conclusion
I want to wrap up by taking a moment to talk about a representative of the United Nations
who spent the past several months visiting tribal communities in the United States. During her
visit*, Special Rapporteur Victoria Tauli-Corpuz documented breakdowns in consultation
between tribes and the federal government on a range of projects with environmental impacts. In
her initial statement*, she noted that:
"The goal of tribal consultation is not simply to check a box, or to merely give tribes a
chance to be heard. Rather, the core objective is to provide federal decision makers with
context, information, and perspectives needed to support informed decisions that actually
protect tribal interests." — United Nations Special Rapporteur Tauli-Corpuz, 2017*
I leave you today with this message — tribal leaders, protect the interests of your people
by seeking consultation status on projects that impact your sacred landscapes. Collect and weigh
the scientific and cultural evidence of potential impacts, and take a position on issues of
importance to your tribe. Tribal members, submit your own comments as public citizens, but
also encourage and support your leaders in efforts to engage in consultation. Commission of

Indian Affairs, consider your ability to shape state policy on consultation for projects with
implications for the indigenous people of North Carolina.
Today, the issue for some tribes is the Atlantic Coast Pipeline*, especially given its
proposed path through eastern North Carolina. There is still time for tribes to receive
consultation status on this project and for tribal members to submit comments on the draft
Environmental Impact Statement*. Other projects will emerge, and they will inevitably have
impacts on our sacred places, and they will have implications for our citizens. We have the
ability to speak on behalf of our sacred landscapes, ensuring environmental justice for our tribal
communities, and becoming good ancestors for those who come after us.
Thank you.

Edited by Jennifer Sills
Flawed environmental
justice analyses
In December 2016, the Federal Energy
Regulatory Commission (FERC) issued
a draft environmental impact statement
(DEIS) for the Atlantic Coast Pipeline,
a natural gas pipeline proposed to run
approximately 1000 km from West Virginia
to end points in Virginia and North
Carolina (1). The developer, a partner-
ship of utility corporations, contends that
the project is needed to meet the region's
growing energy needs.
The proposed route crosses territories
of four Native American tribes in North
Carolina. Because poor and minority
communities have long been excluded
from environmental decision-making (2),
all federal agencies must now identify
and address environmental justice issues
during formal assessments and reviews of
projects such as the Atlantic Coast Pipeline
(3). Such projects can have wide-ranging
impacts on human communities associ-
ated with land rights and property values,
public safety in the event of leaks and
explosions, and regional climate change
exacerbated by fugitive methane emissions
(4) and combustion of natural gas.
In addition to these issues, Native
American tribes have unique concerns
deriving from their status as indigenous
peoples. Tribes have deep connections to
ancestral and modern-day territories, and
these connections are often important to
tribal concepts of identity, history, culture,
spirituality, and governance. Sacred sites,
archaeological resources, and natural
260 21 JULY 2017 • VOL 357 ISSUE 6348
features integrate to form cultural land-
scapes that are unique to each tribe.
The Atlantic Coast Pipeline developer's
preferred route disproportionately affects
indigenous peoples in North Carolina. The
nearly 30,000 Native Americans who live
within 1.6 km of the proposed pipeline
make up 13.2% of the impacted population
in North Carolina, where only 1.2% of the
population is Native American [Appendix
U in (1)]. Yet, the DEIS reported that fewer
than half of the areas along the proposed
route had minority populations higher than
county -level baseline proportions (1). The
discrepancy stems from the DEIS's failure
to account for large differences in popula-
tion size in the studied areas; large minority
populations in some places were masked
by much smaller nonminority popula-
tions elsewhere. The analysis also failed to
account for large differences in baseline
demographics among counties, where
minority populations range from less than
1% to nearly 70% [Appendix U in (1)]. These
large differences prevented meaningful
comparisons among areas in different coun-
ties. Together, these flaws rendered FERC's
analysis incapable of detecting large Native
American populations along the route, lead-
ing to false conclusions about the project's
impacts. Notably, the analysis conformed to
the generic guidelines prescribed by the U.S.
Environmental Protection Agency (1).
Environmental justice analyses are meant
to help regulators and developers identify
and address disparate impacts on vulner-
able populations at an early stage in the
decision-making process (3, 5, 6). Analyses
unable to detect such impacts are essentially
faulty instruments that fail to warn decision -
makers about potential problems ahead.
In the case of the Atlantic Coast Pipeline, a
Published byAAAS
Members of North Carolina's Lumbee tribe prepare
to perform a traditional dance in 2004. Their lands lie
in the path of the planned Atlantic Coast Pipeline.
more thorough analysis might have alerted
regulators to large Native American popula-
tions along the proposed route and the need
to consult with tribal governments.
The Dakota Access Pipeline controversy
(7) demonstrates that all parties suffer when
environmental justice analyses and tribal
consultation are treated as meaningless rote
exercises. Tribes suffer erosion of sover-
eignty and damage to cultural landscapes,
federal -tribal relations deteriorate, and
developers incur setbacks.
Developers and regulators of the Atlantic
Coast Pipeline still have a window of
opportunity to take these lessons to heart.
Regulators can consult with tribes before
making a final decision on the project
later this year, and they can acknowledge
the project's true impacts on vulnerable
populations by addressing the flawed envi-
ronmental justice analysis. Scientists can
help by sharing rigorous methods, providing
oversight, and partnering with vulnerable
communities. It is not too late to work
toward environmental justice for all.
Ryan E. Emanuel
Department of Forestry and Environmental Resources, North
Carolina State University, Raleigh, NC 27695, USA.
Email: [e-mail]
REFERENCES
1. Draft Environmental Impact Statement for the Atlantic
Coast Pipeline, Federal Energy Regulatory Commission
(2016); www.ferc.gov/industries/gas/enviro/
eis/2016/12-30-16-DEIS.asp.
2. P. Mohai, D. Pellow,J.T. Roberts,Annu. Rev. Environ.
Resour. 34,405 (2009).
3. Executive Order Number 12898: Federal Actions to
Address Environmental Justice in Minority Populations
and Low -Income Populations (1994).
4. D. R. Caulton etal., Proc. Nati. Acad. Sci. U.S.A.111, 6237
(2014).
5. L. Rose, N. A. Davila, K. A.Tzoumis, D. J. Doenges,Environ.
Pract.7,235 (2005).
6. A. Hartell,J. Transport. Res. Board 2013,21 (2007).
7. K. P. Whyte, Red Ink 19,154 (2017).
10.1126/sci ence. aao2684
Mexico's basic science
funding falls short
During his inauguration address in
December 2012, Mexico's President Enrique
Pena Nieto vowed to move the country
forward by investing in education as well
as in science and technology (S&T). In two
government documents (1, 2), he pledged
to increase the S&T federal expenditure
(which had been lingering for years at about
0.4% of the gross domestic product) up
to a minimum of 1% by 2018 (2, 3). A few
months earlier, the National Autonomous
University of Mexico, together with the
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