Within the wake of McGirt v. Oklahoma, the Environmental Safety Company (EPA) is granting the State of Oklahoma sure environmental regulatory authority over Indian Nation inside the state. In a letter from EPA Administrator Wheeler, launched by EPA on October 1, 2020 (EPA Letter), the EPA granted Governor Stitt’s request to manage federal environmental regulatory applications, together with varied parts of RCRA, CAA, CWA, SDWA, FIFRA, and TSCA. Whereas the EPA Letter acknowledged “that, usually, within the absence of specific authorization from Congress states should not have jurisdiction in Indian nation to implement regulatory applications underneath the federal environmental legal guidelines administered by EPA,” that Part 10211(a) of the Protected, Accountable, Versatile, Environment friendly Transportation Fairness Act of 2005: A Legacy for Customers, Pub. Legislation 109-59, 199 Stat. 1144, 1937 (August 10, 2005) (“SAFETEA”) required EPA’s approval of Oklahoma’s request. SAFETEA Part 10211 was a last-minute rider on the massive transportation invoice, sponsored by Senator Inhofe and handed over the objection of many Oklahoma Tribes. The laws creates a particular grant of authority for the state of Oklahoma over Indian Nation inside the state and particularly mandates that EPA grant any request by Oklahoma to manage federal environmental laws in Indian Nation “with none additional demonstration of authority by the state.”
Governor Stitt’s requested EPA’s approval for state jurisdiction lower than a month after the U.S. Supreme Court docket’s historic choice in McGirt v. Oklahoma, which upheld the Treaty boundaries of the Muscogee Creek Nation and acknowledged that Indian Nation in Oklahoma included a big space that Oklahoma state officers had lengthy thought-about (and controlled as) not Indian lands. The McGirt choice raises many jurisdictional questions surrounding the use and management of lands that had been granted to 5 Oklahoma Tribes through Treaty, together with the Muskogee (Creek) Nation, the Cherokee Nation, the Chickasaw Nation, Choctaw Nation, and Seminole Nation. These lands make up the Jap half of the state of Oklahoma. EPA’s grant was hailed by some as a crucial step to make clear regulatory necessities inside these areas, particularly by many power firms with important operations there. Nevertheless, every of the Oklahoma Tribal Nations affected by the grant oppose the motion.
Potential litigation might problem EPA’s grant of authority to the State of Oklahoma and delay the state assuming regulatory management. Authorized challenges would doubtless heart on claims concerning the sufficiency of EPA’s Tribal Session. Pursuant to Govt Order 13175, the EPA is obligated to interact in government-to-government session with affected Tribes previous to approval. Moreover, EPA’s Coverage on Session and Coordination with Indian Tribes establishes varied, requisite milestones for the Company’s session course of. Litigation to assessment whether or not and the way EPA complied with its session obligations and milestones might delay the state’s assumption of environmental regulatory authority. Different authorized claims might embody whether or not EPA exceeded its authority underneath SAFETEA, and particularly the implications of McGirt on the geographic scope of EPA’s approval.
The upcoming election might additionally complicate EPA’s grant of authority to the state of Oklahoma. A Biden administration might search to reverse course or delay implementation to permit for extra sturdy session and engagement with Oklahoma Tribes.
Moreover, the EPA Letter might encourage Oklahoma Tribes to hunt Remedy as a State underneath varied federal environmental legal guidelines, which might reinstate Tribal environmental jurisdiction. Underneath the SAFETEA Act of 2005, Oklahoma tribes are nonetheless in a position to obtain “Remedy as a State” (TAS) by the EPA to manage federal environmental applications, however gives that each one TAS requests are topic to assessment and approval by the EPA Administrator and a cooperative settlement with the State of Oklahoma and its related company.