ACUS recommends best practices for federal agency consultation with tribal, state, and local governments.
As a matter of course, federal agencies make and implement regulatory policies with stakes for state, local, and tribal governments.
Agency consultation with state and local governments is broadly based on federalism values. The federal government’s obligation to consult with the governments of Indian tribes is grounded both in the unique government-to-government relationship between tribes and the United States and in the Indian trust responsibility, which requires the federal government to support tribal nations, including through Congress’s longstanding policy of promoting tribal self-government and economic development. As early as 1970, for example, President Richard Nixon sent a special message to Congress calling upon the federal government to “act on the basis of what the Indians have long been telling us.” Intergovernmental consultation may improve regulatory policymaking, strengthen relationships between governments, and recognize that those who are most affected should be involved in policymaking that will affect them.
For these reasons, many federal statutes, including the Unfunded Mandates Reform Act, a federal statute that aims to identify and limit federal legislation that would impose unfunded mandates on state and local governments, and longstanding executive orders—including those on federalism, tribal consultation, and regulatory planning and review—direct agencies to consult when their policies have implications for state, local, and tribal governments. Although these statutes and executive orders have been on the books for decades, and many agencies have attempted to implement them, intergovernmental consultation too often becomes a “box-checking” exercise that does not improve policy or embody respect for state, local, and tribal governments or their constituencies.
The Administrative Conference of the United States (ACUS) engaged us to study the legal frameworks and best practices for consultation among federal agencies and state, local, and tribal governments. ACUS’s prior recommendations on public engagement recognized the value of intergovernmental consultation but did not address the unique legal, political, and practical questions involved in this process.
We set out to understand what federal agencies are actually doing when consulting with other governments. This meant looking at agencies’ consultation policies—when they existed. It also required examining what agencies actually do when making, implementing, and consulting about regulatory policies. To these ends, we analyzed more than 20 published consultation policies and over 100 recent comments on agency consultation from the Federal Register and interviewed experts with experience in intergovernmental consultation, including representatives of federal, state, tribal, and local governments. We also took a close look at public statements on consultation from representative national organizations, such as the National Congress of American Indians, and compared our findings with those of other studies, including studies by the Government Accountability Office and Congressional Research Service. Prior work, we found, identified an overriding worry: that agencies approach consultation as a “box-checking” exercise and lack effective policies and structures to implement the executive orders requiring consultation.
One of our main findings was that agencies have developed formal policies to implement Executive Order 13,175, directing consultation with tribal governments, but not to implement Executive Order 13,132, directing consultation with state and local governments. Both the Obama Administration and the Biden Administration directed agencies to adopt tribal consultation policies and plans to implement Executive Order 13,175. Our analysis of 21 sample policies revealed important similarities and differences with respect to the definition of “tribal consultation,” the criteria for whether—and, if so, when—tribal consultation should occur, the process for consulting with tribal governments, the rules for handling and keeping confidential information shared during consultations, and the institutional structure within the agency that delegates responsibility for implementing the consultation policy. The most obvious differences stood between the policies of executive and independent agencies, as well as between policies primarily addressing informal rulemaking and formal adjudication.
We further found that federal agencies do not generally have publicly accessible, comprehensive policies and implementation plans for state and local consultation—a surprising result because Executive Order 13,132 directs agencies to develop such policies, and agencies have been comparatively diligent in developing policies for tribal consultation. We learned, however, that the U.S. Environmental Protection Agency does in fact have a robust formal policy for such consultation and that the agency developed this policy through an iterative, strategic, and intentional process led by key agency personnel.
Moving beyond formal policies, we identified recurring concerns about agency consultation among tribal, state, and local governments. For example, the National Congress of American Indians’ 2009 background paper on tribal consultation found that Executive Order 13,175 “is viewed by federal agencies as merely a procedural requirement” and that federal agencies “ignore or refuse to carry out their responsibilities” to consult. Our study found that the most common concern about tribal consultation was agencies’ failures to consult when the law or executive policy required it. For example, Executive Order 13,175 requires agencies to consult when a proposed regulation has “tribal implications,” but a concern frequently raised in comments and in our interviews was that agencies often missed obvious and important tribal implications.
Commenters and interviewees also stressed that for consultation to be meaningful, it must occur before agencies decide upon a course of action. Executive Order 13,175 requires agencies to consult “with tribal officials early in the process of developing the proposed regulation.” But we found that federal officials are increasingly aware that meaningful dialogue is not possible when federal agencies do not devote sufficient resources to consultation and do not send high-level officials with decision-making authority to a consultation meeting.
The same concerns arose in connection with state and local consultation. Despite the explicit requirement in Executive Order 13,132, we found little evidence in our interviews and review of documents that such consultation reliably took place. This does not mean that engagement between agencies and state and local governments, whether individually or through associations that represent such governments, never happened. Nonetheless, we found these interactions were episodic and, as with tribal consultation, often came too late to meaningfully influence the outcome of rulemaking and implementation.
Stakeholders in state and local governments and from relevant organizations who represent state and local governments recounted a rather desultory approach to consultation. They urge the federal government to improve the process of consultation, in the hopes of improving regulatory performance and fostering the federalism values undergirding important regulatory statutes and executive orders. Our study suggested that both agencies and the White House, through the Office of Information and Regulatory Affairs in the Office of Management and Budget, should undertake reforms to improve consultation with state and local governments.
Based on our research, ACUS adopted Recommendation 2025-02. The recommendation suggests best practices for consultation, focusing on what agencies themselves can do to improve their engagement with tribal governments and state and local governments. These recommendations include designating a federalism consultation official and a tribal consultation official with responsibility for coordinating consultations with appropriate agencies, adopting comprehensive and distinct policies on tribal, state, and local government consultation, and developing publicly available consultation webpages with easy access to the agency’s consultation policy, contact information for consultation officials, and information on consultation activities.
ACUS’s recommendation, if implemented, would increase the transparency of a process that is too often opaque and incomplete from the vantage point of tribal, state, and local governments and constituents. Implementation would not only improve the performance of agencies but also support the unique nation-to-nation relationship between the federal governments and tribes and the unique regulatory federalism in the United States.
The views expressed in this essay are those of the author and do not necessarily represent the views of the Administrative Conference or the federal government.
This essay is part of a series, titled “Strengthening Agency Processes Through Transparency and Engagement.”