CHAPTER 15 ENVIRONMENTAL PROTECTION AGENCY INDIAN POLICY AND RECENT LEGISLATIVE DEVELOPMENTS
| Jurisdiction | United States |
(Feb 1989)
ENVIRONMENTAL PROTECTION AGENCY INDIAN POLICY AND RECENT LEGISLATIVE DEVELOPMENTS
Minority Staff Director and Counsel Senate Select Committee on Indian Affairs
Washington, D.C.
I. Introduction
This paper is intended to provide an overview of the implementation and application of federal environmental laws on Indian lands. Indian tribes possess a unique status in the American constitutional system.1 In general, tribes are not subject to state authority,2 but are subject to the plenary power of Congress.3 Tribes derive their sovereign authority from sources which pre-date the U.S. Constitution,4 and have retained inherent sovereign powers subject only to limitation or divestment by the Congress.5
For the most part, the early federal environmental statutes did not address the question of the role to be played by tribal governments.6 While all of the statutes
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were, at least arguably, applicable to Indian lands,7 EPA was left without specific statutory authority for the delegation of programs to tribes and the enforcement of standards on Indian lands. Against this backdrop, the federal courts were called upon to resolve assertions of state authority to enforce environmental laws on Indian lands.
II. Federal Case Law
The first federal judicial review of the appropriate roles for tribes, states and EPA came in the case of Nance v. EPA.8 Pursuant to Section 107(a)9 of the Clean Air Act, states were authorized to designate air quality regions. No provision of the Act provided similar authority for the tribes.10 In 1974, EPA promulgated regulations governing the redesignation of air quality regions, including a provision by which a tribal government could redesignate its reservation. In 1976, the Northern Cheyenne Tribe proposed a Class I designation for its reservation. After completing the necessary studies and hearings, the Tribe submitted its formal proposal to EPA on March 7, 1977. On August 5, 1977 EPA formally approved the Class I designation by publication in the Federal Register. In the ensuing litigation, the federal courts were asked to find that EPA had acted arbitrarily and capriciously by delegating redesignation authority to tribes because Section 107(a) delegated the responsibility to the States "for assuring air quality within the entire geographic area comprising the state."11
The Ninth Circuit expressly found that EPA's actions were not arbitrary or capricious.12 In doing so, the Court held that:
The Indian tribes have traditionally been regarded as possessing important
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attributes of sovereignty and the power of the states to regulate Indians and Indian lands has been sharply curtailed... As this Court stated in Santa Rosa Band of Indians v. Kings County, 532 F.2d 655, 658 (9th Cir. 1975), 'we have little doubt that Congress assumed and intended that states had no power to regulate the Indians use or governance of the reservation provided, except as Congress chose to grant that power' ... . And it is well recognized that Indian tribes possess an inherent sovereignty except where it has been specifically taken away from them by treaty or Act of Congress.13
Subsequent to Nance, the Ninth Circuit was called upon to determine the authority of the State of Washington to enforce the Resource Conservation and Recovery Act (RCRA) on Indian lands in the case of Washington Department of Ecology v. EPA.14 Section 3006 of RCRA authorizes the states to establish hazardous waste management programs "in lieu of" the federal program administered by EPA.15 The State of Washington submitted an application to EPA to assume primary enforcement responsibility for RCRA, including enforcement on Indian lands within the State. EPA approved the application "except as to Indian lands," where EPA retained enforcement authority.16
The Ninth Circuit found that RCRA was ambiguous with regard to State authority to regulate on Indian lands.17 The Court held that EPA's interpretation of RCRA was both reasonable and entitled to deference.18 In doing so, the Court explicitly found that the "States are generally precluded from exercising jurisdiction over Indians in Indian Country unless Congress has clearly expressed an intention to
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permit it."19 EPA's interpretation of the statute was found to be consistent with the federal trust responsibility and the federal policy of encouraging tribal self-government.20
...the tribal interest in managing the reservation environment and the federal policy of encouraging tribes to assume or at least share in management responsibility are controlling. We cannot say that RCRA clearly evinces a Congressional purpose to revise federal Indian policy or diminish the independence of Indian tribes.... We therefore conclude that EPA correctly interpreted RCRA in rejecting Washington's application to regulate all hazardous waste-related activities on Indian lands. We recognize the vital interest of the State of Washington in effective hazardous waste management throughout the state including on Indian lands. The absence of state enforcement power over reservation Indians, however, does not leave a vacuum in which hazardous wastes go unregulated. EPA remains responsible for ensuring that the federal standards are met on the reservations.21
Several important generalizations may be drawn from the Nance and Washington cases:
o EPA and the tribes are primarily responsible for regulation of the environment on reservation lands.
o Even without express statutory authority, EPA may delegate responsibilities to tribes.
o Inherent tribal sovereignty confers on the tribes sufficient authority to regulate the reservation environment.
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o Absent express approval of the Congress, the states do not have the authority to regulate reservation environments.
o Federal environmental laws and standards apply to Indian lands.
III. The EPA Indian Policy
On January 24, 1983 President Reagan issued an Indian policy statement in which he called for a continuation of the federal policy of promoting tribal self-government and pledged to work directly with tribes in a "government-to-government" relationship.22 EPA Administrator William Ruckelshaus promulgated an EPA Indian policy on November 8, 1984 to implement the President's policy.23 In pertinent part, the EPA policy provides:
In carrying out our responsibilities on Indian reservations, the fundamental objective of the Environmental Protection Agency is to protect human health and the environment. The keynote of this effort will be to give special consideration to tribal interests in making agency policy, and to insure the close involvement of tribal governments in making decisions and managing environmental programs affecting Indian lands. To meet this objective, the Agency will pursue the following principles:
1. The Agency stands ready to work directly with Indian tribal governments on a one-on-one basis (the government-to-government relationship), rather than as subdivisions of other governments.
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2. The Agency will recognize tribal governments as the primary parties for setting standards, making environmental policy decisions and managing programs for reservations, consistent with Agency standards and regulations.
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3. The Agency will take affirmative steps to encourage and assist tribes in assuming regulatory and program management responsibilities for reservation lands.
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4. The Agency will take appropriate steps to remove existing legal and procedural impediments to working directly and effectively with tribal governments on reservation programs.
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5. The Agency, in keeping with the federal trust responsibility, will assure that tribal concerns and interests are considered whenever EPA's actions and/or decisions may affect reservation environments.
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6. The Agency will encourage cooperation between tribal, state and local governments to resolve environmental problems of mutual concern.
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7. The Agency will work with other federal agencies which have related responsibilities on Indian reservations to enlist their interest and support in cooperative efforts to help tribes assume environmental program responsibilities for reservations.
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8. The Agency will strive to assure compliance with environmental statutes and regulations on Indian reservations.
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9. The Agency will incorporate these Indian policy goals into its planning and management activities, including its budget, operating guidance, legislative initiatives, management accountability system and ongoing policy and regulation development processes.24
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The Implementation Guidance25 which accompanied the EPA Indian Policy directed the Assistant Administrator for External Affairs to coordinate the implementation of the policy. The Indian Work Group (IWG), chaired by the Director of the Office of Federal Activities, was directed to assist and support the Assistant Administrator for External Affairs in the development of guidance to implement the policy. The IWG was also directed to "develop recommendations and suggest priorities for specific opportunities for program implementation...."26 Assistant and Regional Administrators were directed to undertake "active outreach and liaison" with tribes,27 and to allocate resources to meet tribal needs.28 Tribal governments were to be assisted in program development in the same manner as the states had been assisted.29 Administrators were directed to take "active steps" to allow tribes to provide "informed" input into EPA decisions and activities affecting reservation environments.30 Tribal "concerns, needs and preferences" were to be incorporated to the "maximum feasible extent" into decisions and activities
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affecting reservations.31 EPA Administrators and the general counsel were directed to work cooperatively with tribal...
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