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This document was created to address the concerns of many tribal government and tribal community representatives over the lack of effiective consultation and collaboration between federal government agencies and American Indian and Alaska Native governments.
The Indigenous Peoples Subcommittee is one of six subcommittees of the National Environmental Justice Advisory Council (NEJAC), a federal advisory committee of the U.S. Environmental Protection Agency (EPA). The N EJAC believes the federal government has a responsibility to consult and collaborate with American Indian and Alaska Native tribal governments as an essential element of itstrust responsibility to federally recognized tribal governments. However, the NEJAC contends that effective consultation and collaboration between federal agencies and federally recognized tribal governments is lacking. The NEJAC also believes that some existing public participation processes provide inadequate opportunities for tribal members and tribal communities to have meaningful involvement in the environmental and public health decisions affecting them.
Guide on Consultation and Collaboration With Indian Tribal Governments and the Public Participation of Indigenous Groups and Tribal Members in Environmental Decision Making
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.
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.