EPA Rule for Indian Country Tossed Out

Published February 17, 2014

The U.S. Environmental Protection Agency overstepped its bounds when it attempted to override the State of Oklahoma’s air quality compliance plan for non-reservation Indian country lands, a federal appeals court ruled. The U.S. Court of Appeals for the District of Columbia Circuit unanimously ruled EPA cannot replace a state plan in areas where Native American communities have not asserted tribal jurisdiction.

No Tribal Jurisdiction Asserted
“It is undisputed that neither a tribe nor the EPA has demonstrated tribal jurisdiction over all non-reservation Indian country in Oklahoma, accordingly, the state retains jurisdiction over non-reservation Indian country and its implementation plan is effective therein,” the court explained.

“Because the EPA requires a tribe to show it has jurisdiction before regulating Indian country outside a reservation, yet made no demonstration of tribal jurisdiction before itself regulating those areas,” wrote Senior Judge Douglas Ginsburg, “we hold the agency was without authority to displace Oklahoma’s state implementation plan in non-reservation Indian country.”

States Standing Up to EPA
Merrill Matthews, a resident scholar at the Institute for Policy Innovation (IPI), says the case is symptomatic of the federal government’s addiction to regulatory overreach.

“Oklahoma, and specifically Attorney General Scott Pruitt, has been very aggressive in asserting the prerogatives of the state and pushing back against federal regulatory overreach. Even the newly packed, Obama-appointed, D.C. Circuit Court of Appeals could see the EPA was wrong this time,” said Matthews. 

“It is a good and growing trend: As the federal government increasingly tries to tell states what they must do, especially in regard to environmental policy, the states are embracing federalism and standing up to Washington,” Matthews observed. 

No Need for EPA Intervention
John Dunn, a physician, lawyer, and policy advisor for the Heartland Institute, explained EPA was attempting another in a long line of power grabs.

“Indian lands are ‘open country.’ There are no industries or cities with high-density populations there. What this proves is EPA is just puttering around on Indian Territory looking to accumulate more power,” said Dunn.

“Instead of the EPA asking if it has the right to regulate Indian lands through the Clean Air Act, we should be asking them if they really think dust is a toxin. Because the ‘pollutants’ EPA seeks to regulate on Indian lands are, essentially, dust. Oklahoma is basically rural, comprised of farmland and ranches,” he added.

Kenneth Artz ([email protected]) writes from Dallas, Texas.