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DC Circuit strikes down EPA's rule on certain Indian lands

Filed Under: Environment | Law
More on: dc circuit, epa, jurisdiction, oklahoma, sovereignty
     

The D.C. Circuit Court of Appeals on Friday invalidated an Environmental Protection Agency rule that was meant cover all of Indian Country.

The state of Oklahoma convinced the court that the July 2011 rule does not apply to "non-reservation" parts of Indian Country. Specifically, this means the EPA can't regulate air quality on Indian allotments and dependent Indian communities that are not currently recognized as being a part of a reservation.

"We hold a state has regulatory jurisdiction under the Clean Air Act over all land within its territory and outside the boundaries of an Indian reservation except insofar as an Indian tribe or the EPA has demonstrated a tribe has jurisdiction," the decision stated. "Until such a demonstration has been made, neither a tribe nor the EPA standing in the shoes of a tribe may displace a state’s implementation plan with respect to a non-reservation area of the state."

Oklahoma has a federally-approved state implementation plan that purports to cover Indian allotments and dependent Indian communities. Presumably, the plan wouldn't apply to lands that are under tribal jurisdiction, such as tribal trust lands.

However, a rider that was enacted into law by Congress in 2005 makes it virtually impossible for tribes in Oklahoma to exercise authority under the Clean Air Act. The rider forces Oklahoma tribes to secure a "cooperative agreement" with the state, a requirement not imposed on tribes elsewhere.

The D.C Circuit's decision to limit the EPA rule may not have a dramatic impact in Indian Country. But several tribes are in a unique situation where certain Indian allotments and other Indian lands do not fall within reservation boundaries so they may be affected.

The Navajo Nation, the Shakopee Mdewakanton Sioux Community, the Red Lake Nation and the Osage Nation submitted briefs to defend the EPA. They said the 2011 rule closed gaps in Indian Country.

"If it is held that EPA cannot issue a rule for all of Indian country the regulatory vacuum will return, at least with respect to non-reservation Indian country," one tribal brief stated. "Such a result would negatively impact air quality and dramatically increase regulatory uncertainty for tribal governments."

Turtle Talk has posted briefs from the case, Oklahoma Department of Environmental Quality v. EPA.

D.C. Circuit Decision:
Oklahoma Department of Environmental Quality v. EPA (January 17, 2014)

Federal Register Notice:
Review of New Sources and Modifications in Indian Country (July 1, 2011)


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