Environmental Justice is the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, Tribal affiliation, or disability, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. As well as in agency decision-making and other Federal activities that affect human health and the environment.
To address Environmental Justice and Equity in hydropower licensing, you should seek to protect the environment and health of overburdened communities and provide them access to the decision-making process. Giving a voice to historically underserved communities invites opportunities to ensure that the spaces impacted by hydropower operations remain safe and healthy places to live, learn, work and play for all.
It is important to understand the fundamental aspects of Environmental Justice (EJ) and Equity as a platform for community engagement during your licensing process. By utilizing EJ & Equity principles, you will be able to identify historically underserved communities, help to reduce potential negative impacts to overburdened communities, and advocate for potential project benefits in communities near the project area. By helping those who carry the most burden, you help everyone else along the way.
To effectively utilize the principles of EJ & Equity in licensing, practitioners will need to:
Understand your organization and other licensing participants’ policies and practices endorsing Environmental Justice & Diversity, Equity, Inclusion, and Accessibility (DEIA) policy and initiatives.
FERC’s mission is to “assist consumers in obtaining reliable, safe, secure, and economically efficient energy services at a reasonable cost through appropriate regulatory market means, and collaborative efforts.” In addition, two of the Commission’s guiding principles are: 1) to be open and fair to all participants, and 2) to ensure that stakeholders can contribute to the performance of the Commission’s responsibilities through “regular outreach.”
The Commission’s 2022 Equity Action Plan (EAP) promotes equity and removal of barriers in its operations and decision-making processes and policies in focus areas. One is the Office of Public Participation (OPP) which encourages public engagement in Commission proceedings, particularly among underserved communities. Other focus areas include Tribal government consultation and engagement, hydropower project licensing processes and FERC staff equity readiness.
Incorporate and align policies and resources developed for your organization’s mission and practices that will help you incorporate the principles of Environmental Justice and Diversity, Equity, Inclusions and Justice into your hydropower licensing process.
Understand how historically underserved communities may be affected by the project.
Identify communities that could be potentially impacted by a project. The Climate and Economic Justice Screening Tool, an interactive web map developed by the Council on Environmental Quality (CEQ) and United States Digital Service (USDS), can help you identify historically underserved and overburdened communities in/near your project area. Another similar tool is the Environmental Protection Agency’s EJScreen, an environmental justice mapping and screening tool.
Identify the Tribes and indigenous communities that may have a cultural significance on the land being impacted by the project. The Tribal Directory Assessment Tool (TDAT), developed by the US Department of Housing and Urban Development’s (HUD) Office of Environment and Energy (OEE), can help you identify tribes that may have an interest in the project location and provide contact information to help initiate tribal engagement.
A project may have the potential to provide new recreation opportunities near the proposed project: for an example, please refer to the case studies provided in the next section. In order to determine new recreation opportunities, understand the demographics of recreationists using the recreational resources in and near the project area. Incorporate accessibility considerations through principles of universal design in project designs to ensure that people with disabilities can have equal access to both the river access site and amenities offered on the project campus.
Reduce negative impacts and create benefits for overburdened and/or underserved communities.
Consider historically underserved communities while making study requests and commenting on study plans.
Consider historically underserved communities when making recommendations and conditions in the licensing process.
Invite community leaders to have a voice in the process and outcome of the project.
Ensure that no group bears a disproportionate share of negative environmental consequences resulting from industrial, governmental, and commercial operations or policies. To this end, include the following in your provess of stakeholder involvement:
Encourage their participation in decision-making about activities that may affect their environment and/or health;
Include input you receive from them that can be reflected in regulatory agency’s decisions; and
Ensure that decision-makers seek out and facilitate their involvement.
Hydropower projects may be located on the traditional lands of tribes and Indigenous communities who have unique rights, knowledge and opportunities for engagement in the licensing process. FERC, as well as other Federal agencies, have tribal trust and consultation responsibilities with Tribes interested in your project.
Reach out and build relationships with Tribal governments and Indigenous communities. All tribes are different and the issues that each tribe cares about for each license will depend on the tribe and the project.
Understand EJ and equity principles to establish early and meaningful involvement opportunities for Tribes and Indigenous peoples at all stages of the process. This engagement will help practitioners understand definitions of human health and the environment from their perspective; allow for the integration of Traditional Ecological Knowledge into the science, policy, and decision-making of the process; and help practitioners better understand cultural and communication differences of and between Tribes and Indigenous peoples.
Case Studies
Mohawk River, Cohoes, NY
The School Street hydroelectric plant is at the base of Cohoes Falls, the second largest falls in the eastern US after Niagara Falls. Online since 1915, the project incorporates elements of the original Erie Canal and the upper portions of an extensive six-level power canal system first developed during the 1830s. The entire project is within the boundaries of the Harmony Mills National Historic Landmark District, and the dam, headgate house, and power canal are listed as contributing elements to that district. It is also at the intersection of the Erie Canalway National Heritage Corridor (ERIE) and the Hudson River Valley National Heritage Area.
Starting in 2002, the Licensee, Brookfield Renewable Power, engaged in settlement negotiations with the NPS, USFWS, New York State Department of Environmental Conservation (NYSDEC), the New York Power Authority, the City of Cohoes, NY, the Adirondack Mountain Club, American Rivers, New York Rivers United, and the New York State Conservation Council. The parties signed the Settlement Agreement and submitted it to FERC in March 2005; FERC incorporated the agreement verbatim in the February 15, 2007, license order.
Cohoes Falls. Photo courtesy of the National Park Service.
The School Street Hydroelectric Plant is a great example of successful tribal engagement, just treatment, and meaningful involvement in a licensing process. Cohoes Falls is a sacred site to the six nations of the Haudenosaunee (Iroquois) Confederacy. During and after the licensing process, the Licensee and its partners worked with representatives of the Mohawk, Oneida, Onondaga, Cayuga, Seneca, and Tuscarora nations to provide access to the falls for ceremonial activities while limiting conflicts with recreational users. Furthermore, in 2011 the Licensee donated 100 acres on the river's opposite bank to the Hiawatha Institute for Indigenous Knowledge.
The Settlement Agreement required the licensee to construct new facilities to enhance the downstream passage of American Eels and Blueback Herring; new recreational facilities including "Fallsview Park" at a previously inaccessible location above the lip of Cohoes Falls, stairs and trails leading to the base of the falls, tailrace fishing access, wheelchair-accessible fishing piers on the power canal, and wayside exhibits, all accessible by way of a new 192' pedestrian bridge spanning the power canal. Other enhancements included a new visitor parking area and tour bus pull-out spaces, and improvements to the existing Overlook Park. The settlement also required minimum flows in the mile-long bypass reach and over Cohoes Falls to improve aquatic habitat and return the falls to their pre-1915 grandeur.
The licensee asked for NPS assistance developing interpretive media required under the license order, contributing funds that allowed Erie Canal National Heritage Area to contract with Harpers Ferry Center to design and fabricate five upright and five low-profile panels that focused on the geology behind Cohoes Falls, fish, 19th century tourism and waterpower development, hydropower, and floodplain safety. The licensee installed the panels in 2008.
Kootenai River, Montana
In the Summer of 2017, six bands of the Kootenai (“Ktunaxa”) Nation gathered on the banks of the Kootenai Falls in northwest Montana to recognize the anniversary of a hard-won legal victory and to honor a powerful spiritual tradition. June of 2017 marked the 30-year anniversary of the tribes’ successful court battle to protect the spectacular and sacred Kootenai Falls.
Kootenai Falls is described as the last great waterfall in the Northern Rockies. The impressive Kootenai River drops 75 feet in less than a mile and thousands of cubic feet of water flow through every second. It was not surprising that in 1978, a group of western Montana electric cooperatives applied to the Federal Energy Regulatory Commission (FERC) for a construction license for a dam and hydroelectric facility at the Falls. The project was slated to flood some areas, to dewater about a mile of the river below the dam during low flows, and to create a four-mile reservoir that would swallow the Falls and several popular fishing and recreational spots. Expectedly, conservation groups in the area submitted an appeal to FERC to stop the project.
Kootenai Falls. Photo courtesy of Montana Fish Wildlife and Parks.
However, beyond the spectacular nature and energy potential of the falls, there was more to the area than many realized. The Kootenai Falls area serves as a sacred center for the Ktunaxa people, the region is sacrosanct, and the building of a dam would desecrate the sacred nature of the Falls and surrounding area. So, when the hydroelectric project applied for a license in 1978, Native American Rights Fund (NARF) Attorneys represented the Kootenai people of Montana, Idaho, and British Columbia and petitioned that the dam’s license application should be denied for two reasons: (1) the project would not serve the public interest under the Federal Power Act, and (2) it would impair free exercise of the Kootenai religion in violation of the First Amendment of the U.S. Constitution and the American Indian Religious Freedom Act of 1978.
NARF’s prime interest was in protecting Kootenai Indian religious worship in the Kootenai Falls area. The religious beliefs and practices of Native Americans, like all Americans, are supposedly protected by the First Amendment to the U.S. Constitution. Yet the unique qualities of many traditional Indian religions, such as the Kootenai, have made traditional First Amendment arguments ineffectual. Through enactment of the American Indian Religious Freedom Act in 1978, Congress found Indian religion to be an indispensable and irreplaceable part of the nation’s heritage and declared a national policy of preserving the free exercise of Indian religion.
In April 1984, following a 13-week trial, a FERC judge recommended denying the license. The applicants appealed the decision to the full Commission. Although, on June 25, 1987, almost ten years after the initial application, the Commission unanimously denied the construction license. The opinion held that the proposed area for construction would indeed infringe upon the religious customs and beliefs of the Ktunaxa people and that the development would change Kootenai Falls significantly and permanently.
Over thirty years later, we can only imagine what might have happened if the Kootenai and conservationists hadn’t fought the hydroelectric project.
Kootenai Falls. Photo courtesy of Montana Fish Wildlife and Parks.
