Thorny Gift: Analysis of the EPA's Intent to Empower Indian Tribal Governments With Clean Air Act Regulatory Authority Over Non-Tribal Lands and Immunize Tribal Governments From CAA Citizen Suits

摘要

One of the many substantive changes to the Clean Air Act (CAA) brought about by the 1990 amendments was a statutory mandate directing the Environmental Protection Agency (EPA) to promulgate regulations that would enable Indian tribal governments to assume primary regulatory jurisdiction of the CAA. Eight years later, the EPA finally complied by publishing regulations to grant qualifying Indian tribes CAA regulatory authority similar to that exercised by state governments. The new regulations are further testimony of Congress' objective to empower Native Americans with greater control over their natural environment, as witnessed with the grant of similar regulatory authority under the Clean Water Act and Safe Drinking Water Act. Unfortunately, because of the approach taken by the EPA, tribal CAA regulatory authority will prove a gift with thorns generating considerable legal challenge and increasing tension between state and tribal governments. The new regulations will have two striking consequences. Qualifying Indian tribes will receive CAA regulatory control over individuals and lands heretofore under the jurisdiction of state governments, and Indian regulatory authorities will be immune from the CAA citizen suit provisions, leaving the regulated community without any realistic means to challenge tribal regulatory decisions. The purpose of this paper is to explore the inevitable opposition of both state governments and affected individuals, and to determine whether the EPA's new rules will withstand judicial challenge. This paper will address two major issues raised by the Agency's new regulations: (1) Whether the EPA has the statutory authority to grant tribal governments regulatory authority over non-tribal fee holdings situated within the accepted boundaries of a tribal reservation; and (2) Whether the EPA can exempt Indian tribal governments from CAA citizen suits.