Traditional Ecological Rulemaking

Abstract

This Article examines the implications of an increased role for Traditional Ecological Knowledge (TEK) in United States agency decisionmaking. Specifically, it contemplates where TEK might substantively and procedurally fit and, most importantly, whether a final agency action based on TEK would survive judicial scrutiny. In the midst of a growing body of scholarship questioning the wisdom of deference to agency expertise9 and the legitimacy of the administrative state writ large,10 this Article argues that there remains an important space in administrative rulemaking for the consideration of ways of understanding that differ from traditional Western norms. TEK can and should fill that space. Acknowledging the gatekeeping role of courts in deciding the categories of science or knowledge that deserve consideration,11 this Article spends considerable time engaging with the jurisprudence of judicial deference both to agency interpretation of statutes and to agency choice amongst experts in the face of uncertainty or disagreement. Ultimately, the fate of any future TEK-based action will depend on the specific details relevant to those analyses.

Keywords: environmental law, administrative law, Indian law, climate change