Fighting for Air in Indian Country: Clean Air Act Jurisdiction in Off-Reservation Tribal Land

Date01 October 2015
Fighting for Air in
Indian Country:
Clean Air Act
Jurisdiction in
Tribal Land
by Purba Mukerjee
Purba Mukerjee holds a 2015 J.D. from the University
of California, Berkeley, School of Law. e author would
like to thank Curtis Berkey for his thoughtful feedback
and support. is Article won Honorable Mention in
the 2014-2015 Beveridge & Diamond Constitutional
Environmental Law Writing Competition.
Acting under its Clean Air Act (CAA) authority, the
U.S. Environmental Protection Agency (EPA) has
attempted to regulate air quality on behalf of Native
American tribes. However, the D.C. Circuit—in
reviewing EPA’s tribal CAA rules—signicantly cut
back on these eorts, resulting in state encroachment
on the environmental authority congressionally del-
egated to tribes. is undermines tribes’ sovereignty,
control over their natural resources, and opportunities
for economic development. EPA thus should change
its approach in future CAA rules for Indian country,
by relying on preemption, rather than its nebulous
gap-lling authority in the statute.
I. Introduction
Today, Native American tribes are in a powerful position
to inuence energy security through the development of
energy resources in the United States. is presents both
a tremendous economic opportunity for many tribes and
a chance to expand energy accessibility for the America n
public. Present-day reservations and land trusts are the
sites of 40% of the countr y’s western coal reserves, 40%
of American uranium deposits, and 4% of k nown natural
gas and oil reserves.1 Some estimates predict that if tribes
decided to capitalize on all of their energy resource poten-
tial, including renewables development, it would mean
approximately one trillion dollars in revenues.2 However,
this immense opportunity could stagnate, given the ongo-
ing struggle for environmental regulatory authority in
Indian country.
Any energy project, f rom extraction by mining to elec-
tricity generation, demands that a complex array of regu-
latory requirements be met—everything from local siting
and zoning permits to reports on environmental impacts
of the projects to permits for air emissions. Given the com-
plexities and signicant costs of regulatory compliance in
energy development, jurisdictional uncertainty in Indian
country often means that industry is reluctant to invest
there, placing tribes at an economic disadvantage relative
to the surrounding states.3
Without robust environmental regulation, communi-
ties in Indian country a re among t hose in greatest need
of support and change from an environmental justice per-
spective.4 Environmental justice is commonly understood
to mean that no single community or population should
disproportionately bear the burdens of environmental deg-
radation or benet less from land and resource use.5 e
environmental justice movement origina lly focused on
advocating for low-income communities and people of
color, who were disproportionately suering from pollu-
tion and connected health impacts.6
Although environmental justice in Indian country
entails eradicating racial a nd economic discrimination, it
requires more. First, because India n tribes a re sovereign,
they additionally require recognition of their equal sta-
1. Heather J. Tanana & John C. Ruple, Energy Development in Indian Country:
Working Within the Realm of Indian Law and Moving Towards Collaboration,
32 U E. L. R. 1, 1 (2012).
2. Elizabeth A. Kronk Warner, Examining Tribal Environmental Law, 39
C. J. E. L. 42, 44 (2014).
3. Sandra D. Benischek, Clean Air in Indian Country: Regulation and Environ-
mental Justice, 12 V. E. L.J. 211, 214-15 (2001).
4. See Rebecca Tsosie, Climate Change, Sustainability and Globalization: Chart-
ing the Future of Indigenous Environmental Self-Determination, 4 E. 
E L.  P’ J. 188, 211-12 (2009); Warner, supra note 2, at 51-52.
5. See Tsosie, supra note 4, at 210; see also Benischek, supra note 3, at 224.
6. See, e.g., Tsosie, supra note 4, at 210; Dean B. Suagee, Environmental Justice
and Indian Country, 30 H. R. 16, 16 (2003).
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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