Explainer: Tribal Nations Criticize FCC’s Tribal Consultation Efforts on Proposed NEPA and NHPA Rule Updates

Background

On August 14, 2025, the Federal Communications Commission (FCC) released a Notice of Proposed Rulemaking (NPRM) titled “Modernizing the Commission’s National Environmental Policy Act Rules.” The National Environmental Policy Act (NEPA), originally enacted in 1970, requires federal agencies to evaluate the environmental impacts of “Major Federal Actions” (MFAs), and to incorporate environmental considerations into agency decision making.  

The NPRM was initiated in response to a petition for rulemaking submitted by the Wireless Association (CTIA), which argued that recent statutory amendments and executive actions required the FCC to reevaluate its NEPA rules and regulations. The FCC sought public comment on its NPRM, and Tribal Nations and other stakeholders have since expressed concerns regarding both the substance of the NPRM and the FCC’s efforts to engage in meaningful consultation with Tribal Nations on the matter. 

Petition & Notice of Proposed Rulemaking

In its petition, CTIA argued that a changed legal landscape informed by amendments made to NEPA in 2023 and President Trump’s Executive Order (EO) 14154: Unleashing American Energy required the FCC to reevaluate its NEPA regulatory framework to expedite the timeline associated with an environmental review - a process that, depending on the extent of the environmental impact, may take up to two years to complete. First, it noted that while the term “Major Federal Action” was previously undefined by the NEPA statute, the recent statutory amendments now defined a MFA as one “the agency . . . determines is subject to substantial Federal control and responsibility.” It argued that the FCC could now exercise its discretion to determine which actions met that threshold, and that actions without substantial federal control were therefore not subject to NEPA’s review requirements.   

Second, CTIA explained that EO 14154 also supported changes to the FCC’s NEPA framework for three reasons: (1) it formally revoked a former EO that empowered the Council on Environmental Quality (CEQ), which advises the Executive Office of the President on environmental matters, to issue NEPA rules that were previously binding on the FCC and other federal agencies; (2) instructed the CEQ to issue guidance to agencies to expedite their NEPA permitting processes; and (3) directed the agencies themselves to reevaluate their existing rules and regulations to eliminate permitting delays consistent with the CEQ’s guidance. 

Against the backdrop of the statutory changes and the EO, CTIA asked the FCC to amend its NEPA framework to “facilitate wireless broadband deployment throughout the country.” Specifically, it asked the FCC to find that when a wireless provider seeks to provide service pursuant to a wireless spectrum license within a specific geographic area, construction of a new wireless facility within that area is not a MFA that would require NEPA review. It also asked that any action the FCC determines is a MFA be subject to a “review process with clear timelines and predictable standards.” But Tribal Nations like the Standing Rock Sioux Tribe argue that CTIA’s requested changes would establish “a pathway for large-scale commercial wireless providers to bypass crucial NEPA requirements, including Tribal Consultation, for projects on Tribal lands,” and would “fundamentally undermine[] the principle of government-to-government consultation and the Federal government’s trust responsibility to Indian tribes.” 

CTIA also petitioned the FCC to review its National Historic Preservation Act (NHPA) framework as well. While NEPA requires federal agencies to evaluate the environmental impacts of MFAs, Section 106 of the NHPA directs agencies to consider and evaluate the effects of “undertakings,” defined as “a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency,” on historic properties. CTIA requested the FCC exempt wireless facility deployments from its definition of an “undertaking,” which would preclude a Section 106 review of a historic property on Tribal lands impacted by a wireless infrastructure deployment.  

However, organizations including the National Congress of American Indians (NCAI), the Advisory Council on Historic Preservation (ACHP), and the Arizona State Historic Preservation Office, urge the FCC not to conflate the NEPA and NHPA review processes as one and the same, and further emphasize that while both are distinct, they are equally crucial to protect Tribal lands. First, NCAI argued that because NEPA remains separate from the NHPA, any statutory changes impacting NEPA simply do not affect the NHPA and further do not require the FCC to make changes to its NHPA review framework. Specifically, it noted that the definition of an “undertaking” is already defined under section 106 of the NHPA and leaves no room for agency discretion, unlike the updated 2023 definition of a MFA. 

Second, Tribal Nations and others point to the NHPA’s purpose in arguing against changes to its core requirements. As the Standing Rock Sioux Tribe explained, “[f]or many Indian tribes, these reviews are the primary means by which they can identify and protect ancestral lands, sacred sites, and other culturally significant resources that may be impacted by development.” It noted that these environmental review processes are particularly crucial in the context of wireless infrastructure deployment, “where antenna towers can be placed in areas with historical and cultural significance unknown to others.” Tribal communities urge the FCC not to adopt changes that would limit its statutory responsibilities under either NEPA or the NHPA. 

Tribal Consultation

Tribal Nations have also criticized the FCC’s efforts to engage in meaningful consultation on this matter through its Office of Native Affairs and Policy (ONAP). The Flandreau Santee Sioux Tribe, the Knik Tribe, the Standing Rock Sioux Tribe, and other organizations like the National Association of Tribal Historic Preservation Officers (NATHPO) argue that the FCC’s Establishing a Government-to-Government Relationship With Indian Tribes Policy issued in 2000, EO 13175: Consultation and Coordination with Indian Tribal Governments, and Treaty and Federal Trust Responsibility principles obligate it to meaningfully consult with Tribal Nations on a government-to-government basis. 

Before the FCC formally issued its NPRM in August, it held a virtual Tribal consultation session on EO 14154 and CTIA’s petition for rulemaking on July 15, 2025. But NCAI explained that the “call was plagued with poor reception, intentional one-way viewing, and a lack of any actual agency decision makers.” The Knik Tribe described the consultation as a “listening session” where attendees were hidden from one another, rather than a meaningful dialogue between Tribal leaders and FCC leadership. 

ONAP later announced two in-person consultation sessions: the first coinciding with the 25th Annual National Association of Tribal Historic Preservation Officers (NATHPO) Conference on September 8-9, 2025, and the second during the Coalition of Large Tribes (COLT) quarterly meeting on September 11, 2025. However, NCAI points out that both opportunities were announced with less than 2 weeks notice to Tribal Nations. Furthermore, the NATHPO explained that it did not agree to host a consultation session at its annual conference, and that “[t]reating conference side meetings as consultation risks reducing the process to a “check the box” exercise rather than the robust and respectful dialogue that federal policy and practice require.”

On September 5, ONAP issued a public notice and a Dear Tribal Leader Letter announcing additional Tribal consultation sessions, including 2 virtual sessions and 2 in-person sessions: one coinciding with the 2025 Annual Alaska Federation of Natives (AFN) Convention on October 15-17, 2025, and another at NCAI’s 82nd Annual Convention and Marketplace on November 16-20. But that announcement too was subject to criticism by NCAI, which sent ONAP a letter on September 9 explaining that ONAP did not follow its official event planning process despite multiple requests to do so, and that it did not consent to ONAP utilizing its annual conference as a consultation session. 

NCAI noted that ONAP’s “present imposition of a “consultation” during [its] event means that Tribal leaders - who will be present for NCAI business and other scheduled programming - may have to choose between meeting informally with FCC staff or other essential NCAI programming.” It asked ONAP to publish a new public notice clarifying that its consultation session was not associated with NCAI’s programming. However, as of October 1, the public notice identifying the consultation session as part of NCAI’s annual convention remains unchanged on ONAP's website. 

Future Tribal Consultation Opportunities

The FCC’s public comment period on its proposed NEPA and NHPA rule changes ended on September 18, with reply comments due October 3. During that time, the FCC received a total of 217 comment filings, including 9 submissions from Tribes or Tribal organizations, and 23 filings from historic preservation organizations. In addition to the two in-person consultation sessions occurring during the AFN and NCAI annual conventions, ONAP’s upcoming virtual consultation sessions are currently scheduled for October 7 and November 12. However, the FCC suspended most of its operations on October 1, 2025, after a lapse in government funding. ONAP sent out a message via email that day explaining that “[a]ny events or meetings, including Tribal Consultations, scheduled to occur during the lapse in funding will be cancelled or rescheduled.” 

While it is unclear when the government shutdown will end, the FCC’s upcoming Tribal consultation sessions, including the virtual session scheduled for October 7, will likely be affected. But while the shutdown persists, the impact of the FCC’s proposed changes remains unchanged. As the Flandreau Santee Sioux Tribe attests, “[w]ithout . . . direct consultation, cultural resources and other important [T]ribal interests are at risk.” Tribal Nations should prepare to engage with FCC leadership when consultation sessions do take place, hold the FCC to its obligation to honor Tribal sovereignty and engage in meaningful consultation when infrastructure deployment impacts Tribal lands, and emphasize the importance of enforcing NEPA and NHPA requirements against the wireless industry and other service providers to ensure sacred sites and cultural resources are protected in perpetuity.