WASHINGTON – A new and long-awaited set of rules released by the U.S. Environmental Protection Agency aims to strengthen tribal regulation of clean air standards in Indian country, putting tribes on equal footing with states in regulating their own environments. The action, which tribes have been pushing for since the early 1990s, had been long delayed as the agency put many priorities ahead of regulations that would improve the health and economies of tribal citizens.
The finalized rules, announced by the Obama administration on June 13, are officially meant to ensure that Clean Air Act permitting requirements are applied consistently to tribal facilities to better protect the health of people living near them, according to EPA officials who said pollutants covered under these permits can cause a number of serious health problems including aggravated asthma, increased emergency room visits, heart attacks, and premature death. In practice, the rules will also strengthen tribal control over sources that pollute on Indian lands, while giving tribes the opportunity to host increased economic development.
In short, the actions put in place requirements for issuing clean air permits to both large and small pollutant sources in Indian country, and set specific timelines for phasing them in. They formally establish a federal process to issue permits to smaller sources – those emitting less than 100 or 250 tons per year – in all areas of Indian country and to large sources – those emitting more than 100 tons per year – in areas of Indian country that do not meet national air quality standards. A rule already in place details requirements for EPA to issue permits to major sources in areas of Indian country that meet national air quality standards.
“These actions will limit harmful pollutants, provide the health protections tribal families deserve and allow for an open and transparent permitting process,” said Gina McCarthy, assistant administrator for EPA’s Office of Air and Radiation, in a statement. “The actions also bring clean air permitting programs for Indian country in line with state and federal programs.”
Philip Baker-Shenk, a partner with the Holland & Knight law firm who focuses on Indian issues, said EPA’s release of the New Source Review (NSR) regulations arm the EPA and tribes with the tools to better protect both tribal air and tribal sovereignty. “While tribal sovereignty is constrained by tribal borders, tribal air blows over tribal boundaries, as does the air from neighboring areas that formerly were Indian country,” he said. “The new EPA NSR rules will not only help clean up tribal air, but also give federal blessing to air permits issued by Indian tribes in the exercise of their geographic jurisdictional sovereignty. Since tribal sovereignty is defined in practical terms by how others respect it, the new EPA rules represent a significant restoration of tribal sovereignty.”
Agency officials noted that only a few tribes to date have been administering EPA-approved minor NSR programs and that no tribes have been administering EPA-approved major NSR programs. They said the preconstruction NSR air permitting program ensures air quality is maintained when industrial facilities are built or modified, and ensures that appropriate emission control technology is installed at new plants or existing plants that undergo a modification. They believe, too, that the action will provide tribes with the tools they need to ensure that newly built or expanding facilities meet these requirements, while giving industries the flexibility to choose the most practical and cost effective way to do so.
Janet McCabe, principal deputy assistant administrator for EPA’s Office of Air and Radiation, said that due to the “complicated situation of regulating in Indian country,” the only types of permits required to date for entities on tribal lands were for major sources. That meant minor sources, without an ability to get permits, often didn’t locate in Indian country, thus harming economic development. And in some cases, sources were building without getting permits, thus leaving the possibility open for harmful pollutants to be harming the health of Indian citizens.
Baker-Shenk said that the resulting tribal gap in the national regulatory structure meant that economic development impacting air quality was permissible throughout the United States, but it was impossible in most of what remains of Indian country. “[W]hile the statute treated former Indian country and remaining Indian country alike, EPA neglected for two decades to issue implementing regulations for Indian country,” he said. “So if a company’s activity required a permit under the Clean Air Act, it could get a permit only if it located outside of Indian country—as if tribes needed another obstacle to economic development on their lands.”
The gap, Baker said, stopped everything from dry cleaners to rock crushing operations from developing on Indian lands. In some cases, it precluded tribal government gaming facilities from maximizing the economic benefit, like other public places, from operating their emergency power generators during brown-out and other peak demand periods in cost-saving agreements with public utilities that would otherwise have to build costly expansions in capacity.
Adding another dimension to the situation, before the new rules were enacted, tribes in most regions that bothered to ask for permits were refused, Baker-Shenk said, adding: “EPA could not be bothered. Tribes didn’t matter. Some tribes never asked. Others gave up.”
Both tribal and federal officials agree that the new rules were a long time coming. “It was twenty long years ago that the U.S. Congress created this statutory authority in forward-looking amendments to the Clean Air Act,” Baker-Shenk said. “In other words, two decades ago, the Congress told EPA to treat Indian tribes as states for purposes of federal air regulation. For the next two decades, the EPA busied itself writing and rewriting regulations on virtually every topic other than treating tribes as states.”
McCabe said that the effort to get the rules in place actually started in 1997, and said that since about 2005 or 2006, there has been a major effort to involve tribes to get their input on what the rules should look like, as well as to get input from the regulated community. “It’s taken a long time in part because we wanted to get as much input as we could from the tribes,” she said. It was in 2006 that the Bush administration released draft regulations designed to implement the 1991 Clean Air Act amendments on Indian lands, but little happened until the current Obama administration rules were released five years later.
“Generally,” McCabe added, “tribes have been very desirous of having the rule in place because they see it as a disadvantage not to have it.”
Tribes also have the ability to seek to implement the rules themselves, so their tribal sovereignty is protected in a way it was not when states were the lone entities that were trying to issue permits that would affect Indian country. “The rule clarifies that the tribes have primacy to either take over delegation of the rules, or the agency has it,” said Laura McKelvey, head of the tribal group in EPA’s Office of Air and Radiation. “So, for the most part the states don’t have jurisdiction, and it makes sure that the states know that.”
Baker-Shenk said that despite the delay, “late is of course better than never.” But he added a word of caution: “If this new NSR rule is to have any real value in this era when the EPA is in a defensive posture under political siege from Capitol Hill, top EPA officials will have to insist that EPA mid-level officials give top priority to timely processing of tribal applications under the new NSR rules. Otherwise, the last two decades of a regulatory gap will be followed by more decades of bureaucratic inaction that keeps what remains of Indian country an impoverished archipelago.”
On the matter of implementation, EPA released a fact sheet, which said that training and technical assistance will be guided by the agency in close collaboration with tribes. “EPA Regions will primarily be responsible for implementing this rule until a tribe requests delegation of the federal program or until a tribe develops and gets approval of a Tribal Implementation Plan to run these programs,” according to the fact sheet.
Another long-awaited new development from the EPA is its establishment of a National Tribal Toxics Committee (NTTC) in an effort to provide tribes greater input on issues related to chemical safety, toxic chemicals and pollution prevention. Creation of the NTTC is part of EPA Administrator Lisa Jackson’s emphasis on improving chemical safety, building strong tribal partnerships and expanding the conversation on environmental justice, according to an EPA press release.
“As we focus on chemical safety and identify ways to reduce exposure to toxic chemicals and prevent pollution in Indian country, it is absolutely critical that we listen to our tribal partners,” said Steve Owens, assistant administrator for EPA’s Office of Chemical Safety and Pollution Prevention, in a statement. “We want to ensure that we address the ways that tribal members are affected by toxic substances and promote pollution prevention efforts that reflect their interests and needs.”
Agency officials expect that the NTTC will help the agency better tailor and more efficiently address a variety of issues, including preventing poisoning from lead-based paint, expanding pollution prevention and safer chemical initiatives in Indian country, and better evaluating chemical exposures that may be unique to tribes and their members.