MAR/APR 2025 ENVIRONMENTAL LAW REPORTER 55 ELR 10201
FEED IT TO THE OCEAN: THE FEDERAL
APPROACH TO DECOMMISSIONING
IN ALASKA NATIVE CLIMATE
ADAPTATION PROJECTS
by Sophia Tidler
This Article calls on the Council on Environmental Quality (CEQ) to issue guidance clarif ying that concur-
rent decommissioning is a “connected action” under the National Environmental Policy Act for relocation,
managed retreat, and protect-in-place projects aimed at replacing infrastructure in environmentally threat-
ened Alaska Native communities. In 2018, the Denali Commission completed the final environmental impact
statement for Alaska’s first community-driven village relocation of the millennium, facilitating construction of
essential infrastructure at Mertarvik, Newtok’s relocation site. The Commission chose to exclude a full-scale
decommissioning plan for Newtok’s existing infrastructure. Over 73 Alaska Native villages face unprec-
edented severe threats from flooding, erosion, permafrost degradation, and the combined effects of each.
The Commission’s segmented approach to decommissioning exposed critical gaps in interagency coopera-
tion, tribal consultation, and funding priorities, setting a dangerous precedent for similar at-risk communities
facing toxic pollution of their water and subsistence resources. As tribal organizations and partner agen-
cies work to protect these communities from environmental threats and historic inequities, CEQ guidance on
decommissioning is more pressing now than ever.
SUMMARYSUMMARY
Sophia Tidler is an Alaska-licensed Professional Engineer and a 2025 J.D. candidate
at the University of Hawaii at Mānoa’s William S. Richardson School of Law.
If we cannot get thi s right, what happens to the rest?
—Romy Cadiente, Relocation Coordinator,
Newtok Village Council, 2 0171
As the planet heats and the sea level rises, vulnerable low-
lying and coasta l communities will increasingly release
hazardous waste into their surrounding environments.2
Warming four times faster than the rest of the United
States due to Arctic amplication,3 73 highly threatened
Alaska Native villages face ooding, erosion, permafrost
1. VICE News, Climate Change Is Making is Alaska Town Fall Into the
Ocean, YT (Nov. 16, 2017), https://www.youtube.com/watch?
v=G40ooKzI664.
2. See, e.g., Eects of Coastal Sea Level Rise on US Hazardous Waste, U.S. E’
P. A (May 18, 2023), https://rcrapublic.epa.gov/rcra-public-web/
action/posts/5.
3. Mika Rantanen et al., e Arctic Has Warmed Nearly Four Times Faster an
the Globe Since 1979, 3 C’ E E’ art. 168 (2022), https://
doi.org/10.1038/s43247-022-00498-3.
th aw, 4 and various combinations of each— such as usteq, a
Yup’ik word to dene catastrophic destruction of perma-
4. U.S. G A O (GAO), GAO-22-104241,
R C R; A N I: F
A C E S N V E A-
E T 19 (2022) [hereinafter GAO-22-104241];
but see A N T H C (ANTHC), T U-
N E T A N V:
A R 7 (2024), https://www.anthc.org/
wp-content/uploads/2024/01/Unmet_Needs_Report_22JAN24.pdf (“144
Alaska communities face infrastructure damage from erosion, ooding,
and permafrost degradation.”); GAO, GAO-04-142, R C-
C; A N V: M A A
F E, F Q F A 2
(2003) [hereinafter GAO-04-142] (“Flooding and erosion aects 184 out
of 213, or 86 percent, of Alaska Native villages to some extent.”); U-
A F I N E .,
S T A: I T F E-
, F, T P R A C-
A-1 to A-11 (2019) (Rep. No. INE 19.03), https://www.denali.gov/
wp-content/uploads/2019/11/Statewide-reat-Assessment-Final-Report-
20-November-2019.pdf (ranking 187 communities across three categories
of threatened infrastructural risk: erosion, ooding, and permafrost deg-
radation); see also Alaska’s Environmentally reatened Communities, S
A D. G G S. (Feb. 23, 2021), https://
storymaps.arcgis.com/stories/2a0d221e55ca48dd8092427b50a98804
55 ELR 10202 ENVIRONMENTAL LAW REPORTER MAR/APR 2025
frost with associated land col lapse, as well as lost sea ice and
permafrost coastal protection.5 Alaska Native villages are
subject to federal policies designed to mitigate these th reats
through adaptive management infrastructural develop-
ment projects, also called relocation, managed retreat, or
protect-in-place (RMP) projects.6
Today, federal agencies leading RMP projects in envi-
ronmentally threatened Alaska Native villages quest ion
whether decommissioning original facilities is within
the scope of the same National Environmental Policy
Act (NEPA) environmental assessment (EA) process as
construction of the facilities designed to replace t hem.
Unfortunately, the current approach is to punt reasonably
foreseeable decommissioning to an unspecied future date
under an unknown authority. e gap in agency authority
and accountability, combined with a lack of explicit guid-
ance by the Council on Environmental Quality (CEQ),
deteriorates the health and natura l environment of these
communities, worsening the environmental/climate injus-
tices and undermining mitigation eorts.7
Central to these challenges is the emergence of waste-
erosion sites—locations where improperly managed waste
from compromised infrastructu re is released into the envi-
ronment due to escalating erosion and permafrost thaw,
further endangering subsistence resources and exacerbat-
ing the ecological and public health crises facing Alaska
Native villages. To date, the generation of waste-erosion
sites in Alaska is a combined product of (1) Arctic ampli-
cation climate warming8; (2) improper placement of per-
manent village infrastructure9; (3) inadequate rura l Alaska
(maintaining an ArcGIS map of Alaska’s at-risk communities according to
the University of Alaska Fairbanks 2019 Statewide reat Assessment report).
5. Robin Bronen et al., Usteq: Integrating Indigenous Knowledge and Social and
Physical Sciences to Coproduce Knowledge and Support Community-Based Ad-
aptation, 43 P G 188, 189 (2019); F. Stuart Chapin III et
al., Alaska, in C C I U S 514, 534
(Jerry M. Melillo et al. eds., U.S. Global Change Research Program 2014):
[L]ack of sea ice causes storms to produce larger waves and more
coastal erosion. An additional contributing factor is that coastal
blus that were “cemented” by permafrost are beginning to thaw
in response to warmer air and ocean waters, and are therefore more
vulnerable to erosion. Standard defensive adaptation strategies to
protect coastal communities from erosion such as use of rock walls,
sandbags, and riprap have been largely unsuccessful.
6. See infra Section I.D.1.
7. See, e.g., Maxine Burkett, Behind the Veil: Climate Migration, Regime Shift,
and a New eory of Justice, 53 H. C.R.-C.L. L. R. 445, 447 (2018)
(discussing climate justice—the eld that attends to the direct relationship
between social inequality and environmental degradation resulting from cli-
mate change):
is climate destabilization would have signicant implications
for the law, generally, and the civil and political rights of all of us,
particularly the most vulnerable. In the United States, the eld of
climate justice has been concerned with the most vulnerable, as it
explores the intersection of race, poverty, and climate change.
8. Rantanen et al., supra note 3; U.S. E P A-
(EPA), C A A P 5, 6 (2021), https://www.
epa.gov/system/les/documents/2021-09/epa-climate-adaptation-plan-pdf-
version.pdf:
Alaskan landlls situated on melting permafrost are contaminating
local water supplies and threatening the health of ecosystems and
communities. Climate impacts can increase the amount of debris sent
to landlls and can also encroach on the landlls. Climate change is
expected to produce more frequent and powerful natural disasters,
which will increase the amount of disaster-related wastes.
9. See infra notes 15-20 and accompanying text.
solid waste standards a nd federal policies on consumer
economies and waste management10; a nd (4) a failure to
integrate decommissioning into RMP projects.11
is Article focu ses on the fourth point listed above, and
suggests that decomm issioning should be an in-scope “con-
nected action” for the RMP projects that replace the same
functional ty pe of infrastructure existing at the threatened
site, thus occurring concurrently. While existing scholar-
ship asserts the federal duty to relocate environmentally
threatened Alask a Native villages,12 this is the rst to focus
on decommissioning and the federal responsibility to cor-
rect existing and future violations of environmental qual-
ity for the health and safet y of Alaska Native subsistence
communities. Ultimately, the Article exposes a partially
executed commitment to Alaska Natives, a nd asks for its
assertion in full.
Part I introduces a representative Alaska village R MP
project: the village of Newtok ’s survival initiative to relo-
cate to Mertarvik. It also provides background on the his-
torical and legal fra mework governing Alaska tribes, the
health impacts from toxic waste-erosion sites, RMP and
backhauling concepts and logistics, as well as t he impacts
of the Denali Commission’s scoping decision in Newtok
on future funding proposals. Part II exposes improper EA
scoping, contentious interagency consultations, and inad-
equate tribal consultations. Part III t hen calls upon CEQ
to issue NEPA guidance clarif ying decommissioning a s
a “connected action” when considered for Alaska’s tribal
RMP projects. Part IV concludes.
I. Newtok Relocation: Background
and Agency Relations
is part builds the background necessar y to assert that
decommissioning should be within the scope of A laska tribal
RMP projects. e relocation of Newtok is the rst A laska
Native village relocation within t he millennium, serving a s
a pilot project and case study for Alaska’s many other envi-
ronmentally threatened communities. Wh ile the Denali
Commission faced programmatic limitations,13 its inabil ity
to secure the full resources required for this landma rk proj-
10. See infra note 64 and accompanying text; see generally Mary Jo T. Greipp,
Post-Fort Gratiot Landll Regulation: Solid Waste Disposal and the Dormant
Commerce Clause, 2 W J. P. L. 781 (1993) (discussing the judi-
ciary doctrine and case law restricting local governments’ ability to regulate
waste management).
11. In 2015, the Alaska Department of Environmental Conservation (ADEC)
Waste Erosion Assessment and Review (WEAR) Project inventoried more
than 700 eroding landlls and contaminated sites in 124 rural Alaska com-
munities. S W P, ADEC, W E A
R (WEAR) F R i, v, vi (2015), https://dec.alaska.gov/
eh/solid-waste/wear-project/.
12. See generally Scott W. Stern, Rebuilding Trust: Climate Change, Indian Com-
munities, and a Right to Resettlement, 47 E L.Q. 179 (2020); see also
infra note 42 and accompanying text.
13. E-mail from Don Antrobus, prior Village Infrastructure Protection Pro-
gram Manager, Denali Commission, to author (Nov. 14, 2024, 12:51
HST) (on le with author) (“e Commission received roughly $25 [mil-
lion] from congress intended to jumpstart the process. is amount was a
fraction of the total amount that was needed to complete the relocation but
enough to make some concrete progress and move people out of Newtok to
a safer location.”).
