FEDERAL AND TRIBAL IMPLEMENTATION OF THE CLEAN AIR ACT IN INDIAN COUNTRY

• Jurisdiction: United States

Air Quality Issues Affecting Oil, Gas, and Mining Development and Operations (Feb 2018)
CHAPTER 14C
FEDERAL AND TRIBAL IMPLEMENTATION OF THE CLEAN AIR ACT IN INDIAN COUNTRY
K.C. SchefskiBrian JoffeMatt Castelli ¹
Office of Regional Counsel, EPA Region 8
Denver, CO

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KENNETH (K.C.) SCHEFSKI currently serves as the Regional Counsel for US EPA, Region 8, in Denver, Colorado. K.C. started his legal career at the Department of Energy and joined the EPA in 2001 as an attorney in the Office of Site Remediation Enforcement in Washington, DC. In 2006, K.C. moved to EPA's Office of Civil Enforcement and spent the next decade as a supervisor and manager in the Waste and Chemical Enforcement Division. Prior to moving to Denver in 2015, he was the Acting Director of the Waste and Chemical Enforcement Division, managing a staff of lawyers, engineers, and scientists charged with developing and prosecuting enforcement cases of national significance and providing policy and guidance for the national hazardous waste and toxic chemicals enforcement programs. K.C. started in EPA Region 8 as the Director of the Legal Enforcement Program, where he managed the attorneys responsible for civil and criminal enforcement of the environmental laws administered by the EPA in Colorado, Utah, Wyoming, Montana, North Dakota, and South Dakota. K.C. was selected to be the Region 8 Regional Counsel in December 2016. In this role he manages the Office of Regional Counsel and serves as the in-house counsel for the regional office on all environmental and operational matters. K.C. earned his J.D. and a Certificate in Environmental and Natural Resources Law from Lewis and Clark Law School in Portland, Oregon. He has a B.A. in English and a B.S. in Communication from the University of Utah.

I. Introduction

As directed by the federal environmental laws it administers, the United States Environmental Protection Agency's (EPA or Agency) mission is to protect human health and the environment. It seeks to achieve this goal using a cooperative federalism approach in partnership with states, tribes, and other federal agencies. EPA works with tribal governments to develop tribal environmental programs and build the capacity of tribes to assume responsibility for the primary implementation of several federal environmental laws in Indian country, including the Clean Air Act (CAA).² Until tribes are willing and able to assume this primary role, the EPA generally directly implements federal environmental programs in Indian country.

Recent EPA statements to tribal government representatives and current agency planning documents affirm EPA's policy to work closely with tribal governments to fulfill EPA's mission. At an October 2017 meeting with the National Tribal Operations Committee,³ EPA Administrator Scott Pruitt stated that "EPA is committed to working and partnering with tribal governments to address our shared environmental concerns and challenges. I understand the important role that tribal governments play in environmental management, and the unique government-to-government relationship that tribes have with the federal government."⁴ The EPA's Draft Strategic Plan for Fiscal Years 2018-2022 also reflects this continued commitment to work closely with tribal governments to ensure protection of public health and the environment. The Draft Strategic Plan pledges that "EPA will build tribal capacity to implement federal programs--through delegations, authorizations, and primacy designations--and enable

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tribes to meaningfully participate in the Agency's policy making, standard setting, and direct implementation activities under federal environmental statutes."⁵

These recent pronouncements from EPA's leadership extend EPA's longstanding dedication to working closely with tribal governments. In 1984, the EPA was the first federal agency to issue a national policy setting forth principles that would guide the Agency in working with tribal governments to ensure environmental protection in Indian country.⁶ In the decades since, Presidential Executive Orders and EPA policies have strengthened EPA's commitment to implement federal laws in consultation and coordination with Indian tribal governments. Under these policies and presidential directives, EPA frequently consults with tribes on Agency activities that may affect tribes or tribal interests.

In the CAA, Congress provided express authority for authorized tribal governments to assume much of the responsibility for protecting air quality within the exterior boundaries of their reservations and in other areas over which a tribe has jurisdiction.⁷ In 1998, EPA promulgated the Tribal Authority Rule (TAR) to implement these provisions of the CAA and provide a process for tribes to apply to EPA for treatment in a manner similar to a state (TAS), with respect to all provisions of the CAA, except those designated in 40 CFR § 49.4.⁸ Under the CAA and the TAR, tribes may take responsibility for issuing Tribal Implementation Plans, implementing and enforcing new standards of performance and National Emission Standards for Hazardous Air Pollutants, and permitting. Additionally, tribes may apply to EPA to redesignate areas within the exterior boundaries of their reservations as Class I areas under the Prevention of Significant Deterioration (PSD) program. For tribes without TAS authority and programs not subject to TAS, EPA generally directly implements the CAA in Indian country.

This paper will provide an overview of EPA's implementation of the CAA in Indian country. Section II will briefly explain the United States' trust responsibility in the context of environmental protection and EPA's policies for working in a government-to-government relationship with the tribes. Section III will highlight the CAA provisions applicable to implementing air quality protections in Indian country and describe how EPA and the courts have interpreted the scope of federal and tribal jurisdiction for purposes of administering environmental programs in Indian country. Section IV will provide more depth on EPA's direct implementation role and the process for approving primary tribal roles in implementing the

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statute. Finally, Section V will describe the opportunities for tribal implementation and participation under the CAA.

II. The Federal Trust Responsibility and EPA's Policies on Working with Tribal Governments

The United States has a unique legal relationship with Indian tribal governments derived from the Constitution of the United States, treaties, statutes, Executive Orders, and court decisions.⁹ In recognition of this, Congress has declared that there is a government-to-government relationship between the Unites States and each Indian tribe.¹⁰ The United States also has a trust responsibility to each tribal government that includes the protection of their sovereignty, and Congress has recognized the self-determination, self-reliance, and inherent sovereignty of Indian tribes.¹¹ These principles extend to over 560 federally-recognized Indian tribes.¹²

EPA recognizes the trust responsibility that derives from the historical relationship between the Federal Government and Indian Tribes.¹³ In keeping with that trust responsibility, the Agency endeavors to protect the environmental interests of Indian tribes when carrying out its responsibilities that may affect Indian country or other tribal interests.¹⁴ In these situations, EPA ensures the close involvement of tribal governments and gives special consideration to their interests.

In 1970, President Richard Nixon proclaimed an end to nearly a century of federal government policy aimed at the "termination" of the trust relationship between the United States' government and American Indian tribes.¹⁵ President Nixon called upon Congress to pass a joint resolution that would:

explicitly affirm the integrity and right to continued existence of all Indian tribes and Alaska native governments, recognizing that cultural pluralism is a source of national strength. It would assure these groups that the United States Government would continue to carry out its treaty and trusteeship obligations to them as long as the groups themselves believed that such a policy was necessary or desirable. It

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would guarantee that whenever Indian groups decided to assume control or responsibility for government service programs, they could do so and still receive adequate Federal financial support. In short, such a resolution would reaffirm for the Legislative branch--as I hereby affirm for the Executive branch--that the historic relationship between the Federal government and the Indian communities cannot be abridged without the consent of the Indians. ¹⁶

This proclamation influenced Congress to pass the Indian Self-Determination and Education Assistance Act in 1975, but his principles of "self-determination without termination" have also helped shape federal executive branch policy on Indian affairs for the past four decades.

In 1983, President Ronald Reagan reaffirmed and expanded on President Nixon's earlier commitment;¹⁷ shortly thereafter, the EPA issued the first federal agency policy directed at implementing the federal executive's policy of respecting the sovereignty of tribal nations and working with tribes on a government-to-government basis. The 1984 Policy sets forth the following 9 fundamental principles to guide EPA's relationships with federally recognized tribes in the administration of federal environmental laws:

• The Agency stands ready to work directly with Indian Tribal Governments on a one-to-one basis (the "government-to-government relationship). Rather than as subdivisions of other governments.

• 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

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