Environmental justice in the tribal context: a madness to EPA's method.

• Author: O'Neill, Catherine A.

1. INTRODUCTION II. MERCURY CONTAMINATION AND REGULATION A. Mercury Contamination B. EPA's Efforts to Regulate Mercury III. ENVIRONMENTAL JUSTICE IN THE TRIBAL CONTEXT A. Tribes' Unique Legal and Political Circumstances B. Impacts to Tribes: Different in Degree, Different in Kind IV. EPA's ENVIRONMENTAL JUSTICE ANALYSIS FOR THE CLEAN AIR MERCURY RULE A. EPA Treated Tribes as Just Another Highly Exposed "Subpopulation" B. EPA Played Games with the Concern for Disproportionate Impacts. C. EPA Misrepresented the Disproportionate Burden to Native People 1. The Technical Support Document 2. The Regulatory Impact Assessment. D. EPA Declined to Engage the Impacts of Delay E. EPA Ignored Those Impacts to Tribes that are Different in Kind V. CONCLUSION I. INTRODUCTION

   The rivers flowing through the [Bad River] Reservation and Lake Superior itself are important spawning grounds for sturgeon, lake-run trout, and walleye as well as many other fish, which make up a significant subsistence resource for the 1,200 Tribal members living on the Reservation and in the surrounding area. However, Band members, like many other Americans, need to restrict their fish consumption to avoid mercury poisoning.... It is unacceptable to continue to let our children be exposed to such a dangerous toxin while partaking of a food source that tribal members have enjoyed for centuries; a food source that should be a healthy part of their diet.

   Bad River Band of Lake Superior Tribe of Chippewa Indians (1)

   Over the last several decades this toxic substance, mercury, has caused many human health and ecological problems for Indian people.... Mercury is known to seriously impact fish eating wildlife such as loons and mink. These animals are a value to the ecosystem they inhabit and they are clan symbols for Tribal members. If these animals are threatened, Tribal culture is threatened.

   Minnesota Chippewa Tribe (2)

   GLIFWC's member tribes are particularly concerned about mercury contamination of ogaa (walleye), within the area ceded to the United States in treaties with the Chippewa dated July 29, 1837, and October 4, 1842. These treaties guaranteed to the Chippewa tribes certain hunting, fishing and gathering rights in the ceded territory. The purpose of this guarantee was to ensure that the tribes could continue their way of life to meet subsistence, economic, cultural, spiritual and medicinal needs....

   Fishing and fish consumption are central to Chippewa (or Anishinaabe) culture. The practice of harvesting, sharing, and consuming ogaa (walleye) is passed down from generation to generation.... While these practices preserve traditional Anishinaabe 'lifeways,' there is concern in tribal communities that methylmercury in ogaa may pose serious threats to the health of tribal members' young and unborn children and therefore the continuation of these traditional lifeways.

   Great Lakes Indian Fish and Wildlife Commission (GLIFWC) (3)

   Although many of our Tribal members continue to fish and consume fish despite [Maine's statewide] fish consumption advisory, there are many Tribal families that no longer engage in cultural practices associated with fishing, and are thus not passing these traditions to new generations of Tribal members. The loss of our cultural ceremonies, language, and songs associated with fishing represents a significant impact on our Tribe, and results in permanent loss of the culture which defines our Tribe.

   Aroostook Band of Micmacs (4)

   When the Environmental Protection Agency (EPA) announced its proposed rule for mercury emissions from coal-fired utilities, (5) tribe after tribe tried to impress upon EPA the multiple and profound impacts of mercury contamination from their perspectives. Tribe after tribe sought to move EPA to consider the children who would forever suffer neurological damage and other harms. Tribe after tribe came forward with data for EPA that described the particular circumstances relevant to members' exposure. And tribe after tribe took pains to remind EPA of its obligations under treaties and other laws, given tribes' unique political and legal status.

   The rulemaking process, however, revealed an agency intent on providing a reprieve from regulation to coal-fired utilities, despite what this commitment meant for the health and life prospects of millions of children. It showed an agency seemingly unconcerned with any legal obligations or executive commitments to the tribes, despite the hostility to American Indian peoples implicit in this stance. Ultimately, it resulted in a final rule, which EPA dubbed the "Clean Air Mercury Rule" (CAMR), (6) completely divorced from the relevant statutory directives under the Clean Air Act--a point underscored by the D.C. Circuit's stern rebuke to EPA when it vacated the CAMR in New Jersey v. Environmental Protection Agency (New Jersey v. EPA) in February, 2008. (7)

   Given the antipathy of the second Bush Administration to environmental regulation in general it is perhaps unsurprising that the EPA's work on the CAMR is not a model for considering environmental justice in the tribal context. It is an understatement to say that the Bush EPA has been unsympathetic to calls for environmental justice, whether from tribes or other affected groups. Instead, the Bush EPA has flouted its obligations to protect human and environmental health at virtually every turn. Indeed, the Bush EPA has been particularly bold in its willingness to disregard its statutory and other legal commands, to the point that the courts--ordinarily deferential--have felt obligated to rein it in. (8) Thus, one can hope that we have witnessed a high water mark in terms of the agency's disdain for its mission and indifference to those harmed by its decisions. And, happily, the D.C. Circuit's result in New Jersey v. EPA means that the EPA must go back to the drawing board and produce a rule that is consistent with its legal obligations. (9) As such, some of the most glaring deficiencies in the CAMR will need to be remedied, with some of the dire impacts to tribes and their members ameliorated as a consequence. Still, it seems important to examine EPA's analysis of the CA_MR for the lessons it might provide for agencies' future efforts to consider environmental justice in the tribal context. (10)

   Part II of this Article provides background for EPA's decision. This Part explains the sources and effects of mercury contamination and sketches the history of EPA's efforts at mercury regulation. This Part closes by observing that many tribes and their members are prominent among those harmed by mercury contamination and pointing out that EPA should therefore have been aware of the particular constellation of legal obligations and normative considerations that governed its work. Part III elaborates the touchstones for considering environmental justice in the tribal context. This Part discusses tribes' unique legal and political status, focusing in particular on the treaty-secured rights to fish that belong to most of the fishing tribes. It also discusses tribes' different experience of the harms of mercury contamination. Part IV argues that, while EPA purported to consider environmental justice in the CAMR rulemaking, EPA failed to account adequately for tribes' unique circumstances. This Part scrutinizes the rule and its supporting analyses in an effort to glean lessons that might inform EPA's efforts in the future, in concert with affected tribes, to make progress toward environmental justice.

2. MERCURY CONTAMINATION AND REGULATION

   In order to explore EPA's analysis of the CAMR, it is important to appreciate the backdrop against which EPA worked. Specifically, it is necessary to understand mercury's human and ecological health effects, the sources of mercury releases to the environment, the chief pathway for human exposure to methylmercury, and the current extent of human exposure. It is also important to consider the history of efforts to regulate mercury under the Clean Air Act, including the particular events leading up EPA's issuance of its final rule governing mercury emissions from coal-fired utilities.

   1. Mercury Contamination

      Mercury has long been known to be highly toxic to humans. (11) Methiymercury is a potent neurotoxin. The developing fetus and children are particularly sensitive to methylmercury's adverse neurological effects. (12) Exposure to even small amounts of methylmercury during this developmental window can lead to irreversible neurological damage. (13) Methylmercury exposure has also been associated with cardiac abnormalities in children and adverse Cardiovascular effects in adults. (14)

      Mercury is toxic to other species as well. Methylmercury exposure has been associated with adverse neurological and reproductive effects, behavioral abnormalities, and even death in birds and mammals that depend on fish, including loons, kingfishers, osprey, bald eagles, river otters, minks, and the endangered Florida panther. (15)

      Once released into the environment, mercury's behavior is complex, and includes local, regional, and global components. (16) Anthropogenic sources of mercury increasingly account for these releases, although natural processes contribute as well. Anthropogenic emissions of mercury in the United States are currently dominated by coal-fired utilities. (17) Mercury is emitted from utilities in three species, each of which is characterized by a different fate and transport in the environment. (18) In every case, this mercury is deposited to surrounding land and water, although at varying distances and times. Mercury that enters water bodies becomes methylated by microorganisms present in these aquatic environments. (19) Methylmercury is an extremely bioavailable form of mercury, readily taken up by fish in these waters. Methylmercury bioaccumulates in fish tissue, which in turn becomes a source of exposure to other fish, birds, mammals, and humans that consume this fish tissue. (20)

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