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

• Date: 01 October 2015

45 ELR 10966 ENVIRONMENTAL LAW REPORTER 10-2015

Fighting for Air in

Indian Country:

Clean Air Act

Jurisdiction in

Off-Reservation

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.

Summary

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®, http://www.eli.org, 1-800-433-5120.