The control of air pollution on Indian reservations.

• Author: Reitze, Arnold W., Jr.

1. INTRODUCTION II. FEDERAL REGULATION OF AIR QUALITY IN INDIAN COUNTRY A. EPA's Federal Implementation Plans B. EPA's PSD Permit Program C. EPA's Nonattainment Program D. EPA's Operating Permit Program E. Minor Source Permit Programs F. General Permits III. TRIBAL REGULATION OF AIR QUALITY A. Tribes as States B. Tribal Implementation Plans (TIPs) C. The Jurisdictional Reach of a TIP D. Delegation IV. OIL & GAS REGULATION IN INDIAN COUNTRY A. NSPS/HAPs B. Oil and Natural Gas Sector: Emission Standards for New and Modified Sources C. The 2016 FIP D. EPA 's GHG Reporting Requirements E. Bureau of Land Management Regulations V. Air Pollution Control in Utah's Indian Country VI. Utah's Uintah Basin VII. CONCLUSION APPENDIX I. INTRODUCTION

   Changes in oil and gas production technology in recent years led to a boom in domestic oil and gas production. Between 2010 and 2014, petroleum production increased 59% and natural gas production increased by 22%. (1) While this production has reduced the nation's dependence on imported fuel, it has resulted in serious air pollution problems developing in sparsely populated oil and gas production areas of the western United States including Indian lands. (2) The lack of effective air pollution controls, particularly on existing oil and gas well operations, has made it difficult to control emissions from this industry. This Article looks at the efforts being made to deal with air quality issues arising in Indian country that involve a legal regimen that differs from the program applicable to the rest of the nation. It examines the air pollution control program applicable to Indian lands in Utah where approximately 40% of the active oil wells and 2.4% of the gas wells are located in Indian reservations. (3)

2. FEDERAL REGULATION OF AIR QUALITY IN INDIAN COUNTRY

   Indian lands in 2014 produced 1.8% of U.S. crude oil, 0.4% of the natural gas liquids, and 1.0% of the natural gas production. (4) Royalty income from energy and mineral resources in 2015 is projected to exceed $1 billion, and is the largest source of revenue generated from Indian Trust lands. (5) Moreover, the energy industry is a major source of employment responsible for an estimated 96,080 jobs. (6) Because energy production from Indian lands is concentrated in the West, the local economic benefits are significant. Nevertheless, some Indian officials believe onerous restrictions by the United States Bureau of Land Management (BLM) are responsible for the relatively small percentage of domestic production from Indian lands. (7) Regardless of whether changes in regulations would increase production, the current level of oil and gas production in Indian country is contributing to high concentrations of ambient ozone that threatens public health and the environment. (8)

   Indian tribes have inherent sovereignty under the United States Constitution. (9) Nevertheless, they are considered domestic dependent nations, and the Federal government is the trustee, which results in the United States Environmental Protection Agency (EPA) playing an important role in regulating air pollution in Indian country. (10) The present federal policy is to encourage Indian tribes to manage their land and resources (11) subject to restrictions imposed by Congress. (12)

   The United States government is the trustee for the 566 tribal entities in the forty-eight contiguous states and Alaska that are recognized by the United States Bureau of Indian Affairs. (13) A large number of the tribes are in Alaska because each native village is considered a tribal entity. (14) An Indian tribe "means an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to the Federally Recognized Indian Tribe List Act of 1994." (15) Indian tribes control approximately 326 land areas, which encompass over 56 million acres of Indian reservations. (16) There are over 300 Indian reservations in the continental United States. (17) The largest reservation is the Navajo Nation with more than 16 million acres in Arizona, New Mexico, and Utah. Many reservations, however, are less than 100 acres. (18)

   As used in this Article, "Indian reservation" corresponds to the first prong of the term "Indian country" as defined in 18 U.S.C. [section] 1151, i.e., "all land within the limits of any Indian reservation." (19) Tribal jurisdiction is complicated. Tribes have inherent sovereignty over their members and their territory, generally do not have criminal jurisdiction over non-Indians, and generally do not have civil authority over the conduct of nonmembers of the tribe on nontrust land within reservation boundaries. (20) Except that tribes may have authority to regulate the conduct of nonmembers who have consensually entered into commercial dealings with the tribe, or whose conduct threatens the political integrity, economic security, or health or welfare of the tribe. (21) However, an Indian tribe has very limited authority to regulate the conduct of non-Indians occurring outside reservation boundaries. (22) States generally do not have authority to implement environmental protection laws in Indian country. (23)

   Determining what constitutes Indian country can be challenging. For example, on October 30, 2001, the United States Court of Appeals for the District of Columbia defined Indian lands as land validly set apart "for the use of the Indians ... under the superintendence of the Government." (24) The D.C. Circuit in 2014, vacated the definition of Indian country with respect to nonreservation areas of Indian country (i.e., dependent Indian communities and Indian allotments). (25) The court held that the states, not the tribes or EPA, have initial primary responsibility for implementation plans under section 110 of the Clean Air Act (26) (CAA) in nonreservation areas of Indian country in the absence of a demonstration of tribal jurisdiction by EPA or a tribe. (27) EPA has amended its regulation to be consistent with the court's decision. (28) Moreover, over time the boundaries of reservations change. For example, the Ute Indian Tribe in Utah occupies the Uintah and Ouray Reservation. (29) Its exterior boundary is defined by the original boundaries of the Uintah Valley Reservation and the addition of the Uncompahgre Reservation and the Hill Creek Extension. (30) However, the land within the reservation has been reduced by allotments of land, particularly the General Allotment Act of 1887, (31) as well as other federal actions including the 1905 National Forest withdrawals. (32) Moreover, there are four categories of non-trust lands within the reservations. (33) This has resulted in years of litigation over which lands within the exterior boundaries of the reservation are Indian lands. (34) In June 2016, the State of Utah, two Utah counties, and the Ute Indian Tribe announced agreements concerning tribal and state jurisdiction. (35) There will be cross-deputization of state, local, and tribal police, but the Tribal Court will not exercise civil and regulatory authority over reservation lands owned by nonmembers, which will include environmental regulation. (36) However, this agreement does not affect EPA, which has primary jurisdiction over environmental regulation on Indian reservations. (37)

   1. EPA's Federal Implementation Plans

      EPA administers the CAA, which since 1970 has been the primary legal authority for administering and enforcing air pollution control requirements. (38) The CAA requires each state to submit and receive EPA's approval of a state implementation plan (SIP) to control stationary sources. (39) If there is not an approved SIP, EPA is to develop and implement a federal implementation plan (FIP). (40) By the late 1970s, EPA's position was that states do not have authority to implement environmental protection laws in Indian country within the state. (41) EPA's position was upheld in 1985 when the United States Court of Appeals for the Ninth Circuit held that the State of Washington could not administer a hazardous waste program under the Resource Conservation and Recovery Act (42) (RCRA) on lands within Indian reservations. (43) Numerous court decisions support the position that an approved state air pollution control program does not apply to Indian country within the state. (44)

      Indian tribes have the opportunity to administer the CAA's programs but few tribes have accepted this responsibility, (45) thus primary regulatory authority for air pollution control in Indian country is usually based on EPA's regulations, which includes FIPs. (46) There are currently forty-four FIPs applicable to specific tribes. (47) One FIP has been issued by EPA's Region 8, headquartered in Denver, but there is no FIP for any tribe in Utah because no Indian reservation is in a designated nonattainment area. (48) This may change in the near future for the Ute Reservation, discussed in Part V. Even in the absence of a FIP, major sources located within Indian reservations are usually subject to EPA's regulations including national FIPs, such as the FIP for New Source Review in Indian country, discussed below. (49) Executive Order 13,175 requires EPA to consult and coordinate with tribal governments on federal actions that impact tribes. (50) Pursuant to this Executive Order and a Memorandum from President Obama, (51) on May 4, 2011, EPA updated its policy on consultation and coordination, to ensure tribe members have significant opportunities to participate in the regulatory process even if their tribe has not assumed regulatory jurisdiction. (52)

   2. EPA's PSD Permit Program

      Areas having better air quality than the national ambient air quality standards (NAAQS) are subject to the CAA's Prevention of Significant Deterioration (PSD) program. (53) A new major emitting facility subject to the PSD program must obtain a preconstruction permit that includes the requirement to use the...