Introduction
Since the early 1970s, US federal agencies have been required under the National Environmental Policy Act (NEPA) to prepare environmental impact statements (EISs) for any “major Federal action significantly affecting the quality of the human environment.”Footnote 1 These impact statements are designed to inform federal agencies on how their actions may harm the environment and how such harm can be avoided.Footnote 2 The larger policy context of NEPA is that Congress aimed to enable the protection of the environment while maintaining other economic goals.Footnote 3
Critically, Congress hoped to use NEPA to protect the environment from “degradation, risk to health or safety, or other undesirable and unintended consequences.”Footnote 4 Additionally, they aimed to “preserve important historic, cultural, and natural aspects of our national heritage.”Footnote 5 However, Congress measures these goals against “achiev[ing] a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities.”Footnote 6 These three goals are among several other goals listed by Congress that are intended to balance environmental and cultural heritage protection against economic growth and stability.
The recent District of Columia (DC) Circuit Court of Appeals case Oglala Sioux Tribe v. United States Nuclear Regulatory Commission showcases the conflict between these competing values. Like other prominent cases in recent years, the case regards a challenge by a Native American community against a US federal agency over that agency’s permitting of a project damaging to that community’s environment and cultural heritage. At issue specifically in this case is the adequacy of the agency’s EIS. The court ruled in favor of the federal agency and found that the agency’s permit to allow uranium mining had followed necessary EIS requirements. This case, alongside others, highlights the serious limitations of NEPA in the protection of the environment and cultural heritage.
Oglala Sioux Tribe v. United States Nuclear Regulatory Commission
The case Oglala Sioux Tribe v. United States Nuclear Regulatory Commission decides a conflict between the Oglala Sioux Tribe and a US federal agency, the US Nuclear Regulatory Commission (NRC). The NRC regulates, among other things, uranium mining and transportation of mined uranium.Footnote 7 In this case, the NRC granted a license to a uranium mining company, Powertech, to mine for uranium in South Dakota.Footnote 8
After the NRC granted the mining permit to Powertech, the Oglala Sioux brought a case to the DC Circuit Court for review of the permit.Footnote 9 Specifically, the Oglala Sioux argued that the NRC failed to complete its “obligations under the National Environmental Policy Act and the National Historic Preservation Act.”Footnote 10 Those statutes require federal agencies, when making decisions like permitting uranium mines, to prepare an EIS to determine what effects the proposed action will have on the environment.Footnote 11
Critically, the Oglala Sioux argued that the NRC failed to follow correct EIS procedures and that the EIS was inadequate in several ways.Footnote 12 In regard to procedure, the Oglala Sioux argued that the NRC did not “conduct a formal scoping of the project’s impact.”Footnote 13 In regard to EIS adequacy, the Oglala Sioux argued that the EIS did not sufficiently address “the Tribe’s cultural resources, the hydrogeologic effects of the project, the disposal of byproduct material, and mitigation strategies.”Footnote 14 For these reasons, the Oglala Sioux argued that the NRC had not completed its EIS obligations such that the agency could validly grant a permit to Powertech to mine uranium.
The court rejected all five of the Oglala Sioux’s arguments (one on EIS procedure and four on EIS adequacy).Footnote 15 The court also rejected all three of the Oglala Sioux’s additional related claims under the National Historic Preservation Act (NHPA).Footnote 16 As such, the court ruled in favor of the NRC and found that the EIS was sufficiently created.Footnote 17 The following analysis will consider each of the court’s arguments in turn.
First, the Oglala Sioux claimed that the NRC did not conduct necessary “scoping” measures in crafting the EIS.Footnote 18 Scoping is a step that federal agencies must take toward the start of the EIS. In the scoping process, the agency must determine the “significant issues and … those that are peripheral.”Footnote 19 Additionally, the agency must reach out to Native American tribes that may be affected by the project for consultation, and the agency must provide them “a summary of its conclusions” after scoping.Footnote 20 The Oglala Sioux tribe argued that the NRC did not conduct the formal scoping procedures required by law.Footnote 21 The court acknowledged that the NRC did not “formally engage in scoping nor provided a summary of its findings.”Footnote 22 However, the court found that the NRC’s error in not following formal scoping procedures was “harmless” and not enough to invalidate the NRC’s informal scoping process.Footnote 23 The court pointed out that the NRC “placed notices in local papers, received comments from those notices, and met with various interested parties – including tribal authorities – to gather information on the [project] before drafting an EIS.”Footnote 24 The court found that the existence of these informal procedures was enough to provide an exemption to formal scoping.Footnote 25
Second, the Oglala Sioux argued that the EIS did not sufficiently “address the Tribe’s cultural resources.”Footnote 26 Specifically, the Oglala Sioux pointed out that the EIS did not contain information on the tribe’s cultural resources that uranium mining endangered nor explain why that information was missing.Footnote 27 The court noted that the agency did have a responsibility to include information in the EIS regarding the Oglala Sioux’s cultural sources and, if not, explain its unavailability.Footnote 28 However, the court said that an exception can be provided to federal agencies that allows them to skip explaining the unavailability of information in an EIS; the exception applies if the federal agency has published the unavailability explanation in another “publicly accessible decision.”Footnote 29 Here, the court found that the agency explained the unavailability of the information “in publicly accessible decisions after on-the-record hearings.”Footnote 30 In those earlier hearings, the NRC found that the Oglala Sioux’s cultural resource “information was effectively unavailable because of the Tribe’s intransigence.”Footnote 31 Particularly, the NRC had argued that the Oglala Sioux were uncooperative with the agency in the determination of survey methodologies that would identify cultural resource information needed for the EIS.Footnote 32
Third, the Oglala Sioux argued that the NRC’s EIS did not sufficiently address “hydrogeologic data.”Footnote 33 The Oglala Sioux argued specifically that the agency granted Powertech the license to mine without a full analysis of the hydrogeologic data.Footnote 34 However, the court rejected the Oglala Sioux’s argument because the EIS contained some hydrogeologic data and because full hydrogeologic data could only be created following the start of mining.Footnote 35 The court found that deferring full collection of hydrogeologic data until after the issuance of the license was warranted in this case.Footnote 36
Fourth, the Oglala Sioux argued that that agency’s EIS insufficiently discussed “the disposal of byproduct material generated from uranium extraction,” so the NRC should have granted the Oglala Sioux a hearing on the disposal of byproduct material.Footnote 37 The Oglala Sioux made several arguments, but the court rejected all of their arguments and found that the Oglala Sioux did not “raise[] a genuine dispute of law,” so a hearing was not warranted.Footnote 38
Fifth, the Oglala Sioux argued that the agency’s discussion of mitigation measures in the EIS was not sufficient.Footnote 39 The court rejected this argument by finding that the EIS discussed mitigation measures in detail and argued that the Oglala Sioux “ignore[d]” these discussions in their petition.Footnote 40
Finally, the Oglala Sioux raised three arguments under the NHPA, all of which the court rejected.Footnote 41 First, the Oglala Sioux argued that the NRC “did not adequately consult with the” Oglala Sioux.Footnote 42 However, the court found that NRC’s invitation to the Oglala Sioux, and subsequent “refusal to participate” and “challenges to the agency’s methodology do not vitiate the reasonable opportunity” that the agency was required by law to provide.Footnote 43 Second, the Oglala Sioux argued that the NRC should have conducted a survey of the proposed mining area.Footnote 44 The court rejected this argument and said that regulations do not require a survey, but permit them.Footnote 45 Third, the Oglala Sioux argued that “the agency impermissibly postponed identifying historical properties until after Powertech had begun operations.”Footnote 46 The court rejected this argument in finding that applicable regulations could allow for postponement of identifying historical properties.Footnote 47
For all of the foregoing reasons, the DC Circuit Court ruled in favor of the NRC and against the Oglala Sioux. As such, the court found that, pursuant to NEPA and NHPA requirements, the agency had sufficiently complied with the requirements of producing an EIS. Therefore, the court decided that Powertech’s permit to mine uranium was lawfully granted.
The Limitations of Environmental Impact Statements
NEPA is one of the United States’s most important environmental laws. Legal scholar William Rodgers once “described [NEPA] as the Magna Carta of US environmental law.”Footnote 48 Passed by Congress in 1970, NEPA was the world’s “first statute” that required the production of environmental impact statements.Footnote 49 Since then, nation-states (and their political subdivisions) around the world have passed similar legislation requiring the production of environmental impact statements for certain projects.Footnote 50
In the United States, “NEPA requires all federal agencies”Footnote 51 to produce an EIS for “major Federal actions significantly affecting the quality of the human environment.”Footnote 52 While such a command from Congress may appear consequential in deciding whether or not federal agencies will go through with a project, the US Supreme Court has interpreted NEPA narrowly to only require federal agencies to follow certain procedures.Footnote 53 Therefore, even if a federal agency finds in an EIS that one of their projects will have damaging effects on the environment, NEPA itself does not require that agency to abandon the project. The agency can decide that other priorities (such as economic growth) outweigh the environmental concerns.
Therefore, NEPA has a major limitation in protecting the environment: As long as federal agencies follow the correct procedures in producing an EIS, that agency can follow through with a project that damages the environment (as long as no other laws are violated in the process). For litigators like the Oglala Sioux, this limitation makes it so that the plaintiff must prove, not that the EIS shows the project will be damaging, but that the agency did not follow protocol in producing the report. Such a reality may put plaintiffs at a disadvantage in attempting to stop a federal project that damages the environment, for as long as the agency follows the correct procedural steps in crafting an EIS, a court will rule in favor of the agency.
However, Oglala Sioux Tribe v. United States Nuclear Regulatory Commission highlights another limitation of US EIS law: A court may rule in favor of an agency even if it does not follow all of the requisite procedures. In this case, the Oglala Sioux lost in part because the court applied several exemptions to EIS law that allowed the NRC’s EIS to stand. For example, the court ruled that the agency did not require a formal scoping process because the lack of formal scoping was “harmless” due to the existence of informal scoping procedures.Footnote 54 Similarly, the court ruled that the agency was excused from explaining why they did not include information on the Oglala Sioux’s cultural resources in the EIS because the agency had previously disclosed that explanation in a previous hearing.Footnote 55
Therefore, Oglala Sioux highlights how high the burden for plaintiffs can be when raising a challenge under NEPA that a federal agency’s EIS is not sufficient. If the agency can show that they completed all the necessary procedural steps (such as scoping) for an EIS, then a court will likely find that the EIS is sufficient. This is true even when the agency chooses to go forward with a plan that will damage the environment because NEPA is a procedural statute. Additionally, even if a plaintiff can show that the agency did not follow certain proper procedures, the agency can still win in court if they can prove that certain exemptions apply to those procedures and the exemptions are applicable to the agency. In short, even though federal agencies can comply with EIS requirements by following the required procedures, agencies can even ignore certain procedures if they can prove an exemption applies.
Furthermore, in 2025, the US Supreme Court intervened in NEPA doctrine and decided to limit the ability of federal courts to question whether an agency’s EIS is sufficiently adequate. The court argued that an EIS “deficiency may not necessarily require a court to vacate the agency’s ultimate approval of a project, at least absent reason to believe that the agency might disapprove the project if it added more to the EIS.”Footnote 56 Instead, a reviewing federal court should largely defer to an agency’s EIS as long as the agency’s decisions “fall within a broad zone of reasonableness.”Footnote 57 This intervention into NEPA doctrine by the US Supreme Court appears likely to streamline the proposal and approval of new projects, such as mining or infrastructure construction.
Additionally, even if plaintiffs win in court and prove that a federal agency insufficiently crafted an EIS, the federal agency may still ultimately win. For instance, consider the high-profile 2021 case Standing Rock Sioux Tribe v. United States Army Corps of Engineers. Standing Rock, similar to Oglala Sioux, was a conflict between a Native American tribe and a US federal agency, this time the US Army Corps of Engineers, over an EIS issue. In Standing Rock, Standing Rock sued the US Army Corps of Engineers because it granted an easement for the Dakota Access Pipeline under Lake Oahe, a body of water that provided the tribe “with water for drinking, industry, and sacred cultural practices.”Footnote 58 The court ruled that, in not completing an EIS in granting the easement, the Army Corps of Engineers violated NEPA, and the court vacated the easement.Footnote 59 However, the court stopped short of shutting down the pipeline that was transferring oil through that vacated easement.Footnote 60
As such, the court’s decision in Standing Rock was not sufficient to actually stop the pipeline, as oil has continued to be transmitted through it.Footnote 61 In the years since the Standing Rock decision, the Army Corps of Engineers has released a draft EIS that, according to the environmental group the Natural Resources Defense Council, “largely shrugs off climate impacts.”Footnote 62 Additionally, the environmental group argued that “[t]he Corps even went so far as to say that removing the pipeline would cause more climate damage than keeping it running, which flies in the face of common sense.”Footnote 63 The group highlights that the draft EIS was actually prepared by an outside firm “Environmental Resources Management, which has ties to the petroleum industry.”Footnote 64 In highlighting this recent draft EIS, the group aims to argue that the draft EIS is greatly deficient in addressing the environmental and climate consequences of the project.
For these three reasons stated previously, NEPA and EIS law can be insufficient in protecting the environment and therefore the cultural heritage of US communities in general and Indigenous Americans in particular. First, NEPA is a procedural statute, so if a federal agency follows the correct procedures in producing an EIS, a court will likely uphold the EIS. Second, even if a federal agency fails to follow all the required procedures, a court may apply certain exemptions that will keep the EIS in place. Third, even if a plaintiff wins in court and proves that an EIS is insufficient and exceptions do not apply, the federal agencies may still be able to follow through with the project and simply conduct a new EIS.
For decades, human rights practitioners and advocates have acknowledged that environmental protection can also be protection of cultural heritage. For instance, the United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention Concerning the Protection of the World Cultural and Natural Heritage, adopted in 1972, explicitly aims to protect “cultural and natural heritage.”Footnote 65 The convention, in its definition of “cultural heritage” and “natural heritage,” explicitly refers to environmental or natural sites as being worthy of international protection.Footnote 66 More recently, the UN General Assembly adopted the United Nations Declaration on the Rights of Indigenous People in 2007, which similarly explicitly aims to protect the natural heritage of Indigenous people around the world.Footnote 67 The United States originally voted against adopting this declaration, but later accepted it.Footnote 68 Nonetheless, since the declaration was passed by the UN General Assembly, it is not binding international law that would bind the actions of the United States.Footnote 69
Furthermore, despite widespread international recognition of the importance of preserving natural and cultural heritage, recent scholarship indicates that environmental laws can contribute to settler-colonial repression of Indigenous people. Generally, colonial legal frameworks can lead to the “total appropriation of Indigenous life and land.”Footnote 70 These frameworks can sever Indigenous connections to their land, deny or discredit Indigenous knowledge as incongruent with settler knowledge production, and transform Indigenous land into commodifiable property.Footnote 71 Scholars have also argued that such frameworks can emerge in contemporary environmental laws like NEPA. For instance, a recent study of Native American comments on proposals to “streamline” and “modernize” NEPA argued that the proposed regulatory changes contained settler-colonial strategies that jeopardized Native American control over tribal land and resources.Footnote 72
NEPA and EIS law in general may ultimately be an insufficient protector of environmental and cultural heritage. Congress may need to pass stronger environmental protection laws or amend NEPA to require agencies to do more than simply follow EIS procedures (like requiring agencies to reject projects if an EIS finds that environmental and cultural consequences are too severe). Until then, US communities will likely continue to petition courts to review the adequacy of an EIS, but those plaintiffs will be burdened by the serious limitations of NEPA: It only imposes procedural requirements on agencies in completing an EIS, and even if those agencies do not follow procedures correctly, a court may uphold the EIS anyway.
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