CHAPTER 18 CHARACTERISTICS OF AN EFFECTIVE TRIBAL ENVIRONMENTAL REGULATORY PROGRAM; THE PERSPECTIVE OF THE REGULATED COMMUNITY
| Jurisdiction | United States |
(Feb 1989)
CHARACTERISTICS OF AN EFFECTIVE TRIBAL ENVIRONMENTAL REGULATORY PROGRAM; THE PERSPECTIVE OF THE REGULATED COMMUNITY
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Albuquerque, New Mexico
I. INTRODUCTION
This paper presents five suggestions for shaping an effective program for tribal environmental regulation. Although the suggestions are made from the perspective of one who has represented the regulated community1 and not tribes, the suggestions are not intended to benefit only those whom tribes regulate.2 Tribes may take these suggestions into account in developing or expanding environmental regulation. Industry should consider the issues raised in the discussion of these suggestions in the context of potentially applicable tribal law, before making substantial investment on tribal lands. An effective environmental program both accomplishes tribal environmental goals and allows goals of economic development.
Regulation of industry3 is only a limited component of tribal environmental regulation. Although this paper suggests an industry perspective on tribal environmental regulation, the most fundamental concerns of a tribal environmental program are typically neither appeasement of industry nor encouragement of economic development. Rather, elemental tribal environmental
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priorities may emphasize public health issues such as protecting water supplies and disposing of and managing wastes for those living on the reservation.4 The effect of many of these important regulations on non-tribal members simply seeking to do business on the reservation is incidental, although often important. However, to the extent that a tribe may pursue economic development through business activities of non-Indians on tribal lands, a broader array of environmental regulation that protects the environment and does not discourage development of industry is important. For example, the Navajo Tribal Environmental Protection Commission was established to regulate environmental quality in the Navajo Nation in a manner "consistent with the needs of the Navajo people to bring industry and commerce to the Navajo Nation...."5 Balancing the need for environmental quality with the need for industry and commerce can be one of the first real tests of successfully implementing recently recognized tribal civil regulatory authority.
In the past two decades, defining the extent of tribal civil regulatory jurisdiction has been a primary focus of evolving Indian law.6 Courts have recognized the extent of
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tribal authority to regulate, and the United States Congress has encouraged tribal self-government and/or self-determination in the field of environmental protection. Both the United States Environmental Protection Agency ("EPA") and tribal governments have emphasized recognition of Indian self-government and development of tribal infrastructures for coordination between the EPA and tribes.7 However, establishment of tribal civil regulatory authority has been considered as a subset of widely recognized tribal sovereignty issues.8 Although tribal civil regulatory jurisdiction recently has been recognized and defined in some respects, the actual use of that jurisdiction to develop and administer tribal environmental programs raises relatively new issues. From this jurisdictional debate arises the need to implement programs. Regulatory authority does not necessarily equate to regulatory success. Ultimately, the substantive worth of tribal regulatory jurisdiction can be measured in part by the effectiveness of the programs it prompts. Exercise of tribal environmental authority is now as much a question of "how" as it has been a question of "whether." This paper considers those issues that will arise as regulatory authority evolves toward effective tribal environmental programs.
The collective concerns of the regulated community about tribal environmental regulation are varied. This paper attempts to distill and organize that array of concerns to a discussion of five suggestions.9 First, tribes and industry
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would benefit from reduction of the uncertainty that arises from jurisdictional overlap between the EPA, states, and tribes about what sovereign regulates and what regulation is applicable.10 Second, tribes should seize the opportunity afforded by new, relatively small programs and limit administrative delay.11 Third, industry and tribes should work together to achieve and maintain a substantial level of regulatory expertise at the tribal level.12 Fourth, tribes and industry should encourage participation of Indians and non-Indians alike in development of environmental regulation.13 Fifth, tribes should consider concerns of the regulated community about administrative processes and judicial review.14 Obviously, the issues to which these suggestions relate are familiar. These issues do not arise now for the first time with the spectre of increased tribal environmental regulations; they arose in the federal and state experiences of the past. Nevertheless, some aspects of these issues are particularly applicable to tribal environmental regulatory programs that are now developing, and others bear reemphasis in the context of tribal sovereignty.
II. LIMIT REGULATORY UNCERTAINTY.
Those involved with mineral development are not strangers to the concept of risk taking. However, risk is unwelcome when its source is uncertainty about the applicable rules. Mineral development requires large capital expenditures, the profitableness of which is influenced greatly by the regulatory environment. To the extent possible, all should avoid unexpected changes in tribal environmental regulation occurring after affected companies have made investment with assumptions based on the prior applicable rules. Industry should carefully consider what potential for ambiguity or substantial unexpected change exists in any given tribal regulatory scheme and strive to keep the surprises in the province of the company geologist. An effective environmental regulatory program clearly identifies the applicable environmental rules at any point in time and assures relative stability of those rules over time.
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Several circumstances contribute to the potential for uncertainty in new tribal environmental regulatory programs. First, as tribal environmental regulation grows to supplant that of states and the federal government on reservation lands, tribal regulatory programs may overlap, and possibly conflict with, those asserted by the state and federal governments. The result is uncertainty about which regulations apply. Second, a tribe's enthusiasm to exercise its sovereignty in the environmental arena may result in adoption of an environmental code that is more comprehensive than the tribe can effectively implement. The result can be "dormant" regulatory pitfalls with uncertain potential for future enforcement. Third, because most tribal environmental regulation is relatively recent, the potential for more pronounced variations and policy direction during the first few years of a regulatory program is more substantial than after time has steadied the program's course. These three circumstances that contribute to uncertainty are discussed below. Suggestions follow the discussion of these concerns.
A. Uncertainty Arising From Regulatory Overlap.
Avoid overlapping or repetitious layers of tribal, state, and federal regulation. The attendant uncertainty increases exposure to litigation, risk of injunction, and the potential for expense and delay. Moreover, it may result in deterioration of the important relationship of the affected company and regulatory bodies.
1. Tribal Authority to Regulate.
Understanding tribal authority to regulate informs the analysis of regulatory overlap. By experience, industry apprehends regulatory jurisdiction by the federal government and by the states. However, industry must also come to understand the basis of tribal regulatory authority. Tribal authority to protect the environment devolves from both inherent tribal authority and specific federal statues that invite tribal implementation of environmental programs.15 Each is very briefly summarized below. The discussion is
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necessarily brief because the focus of this paper is not definition of the extent of tribal jurisdiction.16
Tribes possess powers of inherent tribal sovereignty.17 Although inherent tribal power to regulate non-Indian activities on the reservation, unless otherwise withdrawn by treaty or statute or implicitly divested, is well established, it is not clearly defined.18 The Supreme Court sought to define inherent tribal regulatory authority in Montana v. United States. The Court recognized that tribes may impose conditions upon the presence of non-Indians on the reservation,19 and that tribal inherent power may be exercised over non-Indians even on fee lands within its reservation "when that conduct threatens or has some direct exercised over non-Indians even on fee lands within its reservation "when that conduct threatens or has some direct effect on the political integrity, economic security, or the health or welfare of the tribe."20 The Court further recognized tribal authority to regulate generally "through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements."21 Montana, therefore, defines a basis of inherent tribal authority for environmental regulation.
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An additional definition of inherent tribal regulatory authority is found in Washington v. Confederated Tribes of the Colville Indian Reservation. The Court articulates the bounds of inherent tribal sovereignty slightly differently, and perhaps in broader terms, than in Montana. The Court states that inherent...
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