Western Governors Would Like Direction for Government-to-Government Consultation in Approps Report Language

I thought folks might be interested in what the Western Governors Association said in their testimony on the FY 2026 Appropriations to the House Interior Committee. Since WGA is a bipartisan outfit, I think it helps to discern what is mainstream from what might be partisan saber-rattling, or taking saber-rattling too seriously.

So naturally they want to be included with Tribes in government-to-government consultation. This doesn’t seem unreasonable, given the Constitution. Here are a few paragraphs on that:

The agencies within the Subcommittee’s jurisdiction wield significant influence over vast areas of the American West. Ninety-four percent of all federal lands are located in the western states, and the federal government owns over 46 percent of the land within WGA states and territories. This Subcommittee’s work is vitally important to Western Governors, as it affects public lands management and federal agency interaction with other levels of government and the public.

There is a natural tension between state and federal governments that is embedded in the U.S. Constitution. These sovereign governments must have a close and productive working relationship to promote efficiency and maximize returns on taxpayer investments. Improving the partnership between states and territories and the federal government is central to WGA’s mission and is reflected in WGA Policy Resolution 2024-01, Strengthening the State-Federal Relationship.

Western Governors were encouraged by past Committee report language directing federal agencies to provide appropriate feedback and decision rationale related to tribal input received via meaningful consultation in their decision-making processes. Similar direction to federal agencies for government-to-government consultation with states and territories, which is required pursuant to Executive Order 13132, Federalism, would improve the co-sovereign relationship between states, territories, and the federal government.

*****
If you haven’t, it’s probably worth taking a look at that Clinton-era EO. I think it’s still on the books, but I don’t think that there is any enforcement. To be sure, many EOs start with a burst of enthusiasm, but if there is no one watching, the requirements tend to get submerged in agency business-as-usual over time.

This is from the WGA Policy 2024-01:

13. Federal agencies have suggested to states that there are legal or other barriers to state consultation, such as: federal agency policies restricting ex parte communications; concerns about the applicability of Federal Advisory Committee Act (FACA) procedures to meetings between state and federal officials; and issues with sharing information that would otherwise be exempt from disclosure under the Freedom of Information Act (FOIA).
14. Federal agencies do not adequately incorporate state data and expertise into their decisions. This can result in duplication, inefficiency, and federal decisions that do not reflect on-the-ground conditions. Consideration and incorporation of state, tribal, and local data and analysis will result in federal actions that are better-informed, more effectively coordinated among all levels of government, and tailored to the communities they affect.
15. Many of these issues stem from a profound misunderstanding throughout the federal government regarding the role and legal status of states. Over the past several years, Western Governors have worked to improve the federal government’s understanding of state sovereignty, authority, and state-federal consultation; meaningful structural change, however, has yet to occur.

And the Governors’ Policy Statement:

2.Improving state-federal communication and coordination is a goal that transcends party lines, and it is among the Governors’ highest priorities. The Governors urge Congress and the Executive Branch to make fundamental changes to realign and improve the state-federal paradigm.

Clearly these concerns are much broader than just federal lands. But we have to look no further than the Rock Springs RMP or the Lava Ridge Wind Project to see that sometimes states concerns have been overridden.

Back to the WGA testimony.

Responsible land management can only occur when federal, state, and local stakeholders collaborate to improve the health and resilience of our lands. Likewise, proactive fish and wildlife conservation is most effective when leveraging the cooperative efforts of state, territorial and federal officials across multiple disciplines. To this end, Western Governors support funding for reasonable proactive management efforts to conserve species, including engaging stakeholders to implement early, voluntary conservation measures. Western Governors also
believe that federal agencies should explore revised Government Schedule criteria and use detail positions and shared staff between nongovernmental partners, state, and federal agencies to
increase interagency coordination.

For those interested in wildfire, here are the relevant paragraphs.

Reducing wildfire risk also requires conducting active forest management at an unprecedented pace and scale. This, in turn, relies on a handful of enabling factors, including a qualified land management workforce and infrastructure to transport and realize the value of extracted biomass. Western Governors support many of the recommendations in the Wildland Fire Mitigation and Management Commission’s final report. The Commission called upon Congress to provide funding for federal public health agencies to address the smoke-related impacts of wildland fire. The Commission also supported the creation of incentives for state, local, and tribal governments to invest in the development of fire- and smoke-adapted communities. Western Governors appreciate Congress’ increased attention to the issue as demonstrated in recent years’ appropriation acts. Western Governors also appreciate USFS’s investments in forest health as part of the Wildfire Crisis Strategy (WCS) and request continued funding for wildfire risk reduction within and outside of designated WCS priority landscapes.

***********

In addition, given the unique character of the West and the region’s attainment challenges, funding should be appropriated for EPA to assist western states in research on background, interstate, and transported ozone. This is especially important as smoke from wildfires causes air quality to exceed the National Ambient Air Quality Standards for particulate matter and ozone, affecting public health, safety, and transportation. The Exceptional Events Rule creates a process for excluding wildfire smoke from regulatory significance; however, this process is presently burdensome and demonstrating a given wildfire’s contribution of pollutants to the local airshed creates a strain on state resources. As a result, Western Governors support funding for technical assistance, grants, and state personnel to support exceptional event demonstrations that exclude wildfire smoke from regulatory significance.