The Origins of the EPA's Indian Program

Jim Grijalva at the University of North Dakota School of Law posted "The Origins of the EPA's Indian Program" at ssrn.com.

The abstract reads:

The United States Environmental Protection Agency’s modern Indian Program - which recognizes Indian tribes as local governments appropriately responsible for environmental management in Indian country - has draw increasing fire in the last decade. Indian country environmental litigation has proliferated as states and non-Indian actors have challenged Agency decisions delegating program primacy to tribes, denying primacy to states, and retaining federal authority in the absence of tribal primacy. Without question, the genesis of these modern decisions, and the policy principles they reflect, can be traced directly to EPA’s official Indian Policy, adopted in 1984, and reaffirmed by every Administrator since that time. This article contributes to scholarly discussions on Indian country environmental law by identifying and analyzing the motivations, assumptions and goals of EPA’s nascent Indian program, which served as the foundation for the modern Indian Program. The article undertakes a legal and historical analysis of: EPA’s creation and early regulatory activities; its first Indian Program actions; the first case testing EPA’s Indian program; the development and content of EPA’s first Indian Policy in 1980; the failure of the 1980 Policy; the deliberative development of its successor, the 1984 Indian Policy; and the substantive content of the 1984 Policy and its accompanying Implementation Guidance. The article concludes that the Agency’s Indian Program was initially born of necessity in a program-specific context, and expanded into a cross-program, Agency-wide institutional approach under the influence of two important shifts in federal policy occurring at the time. The necessity derived from EPA’s view that in the absence of congressional delegation, states generally lacked civil regulatory authority adequate to protect the Indian country environment. Congress’ silence in the environmental laws of the early 1970s convinced EPA that an unacceptable regulatory void existed in Indian country. The solution, EPA posited, was an approach according tribal governments a regulatory role akin to the role states enjoyed under the cooperative federalism model of environmental management. That approach harmonized with the contemporary shift in national environmental policy away from independent state control and toward increasing federal supremacy, but in partnership with local governments. And, the state-like approach was also in tune with federal Indian policy’s movement toward tribal self-determination and away from federal control of Indian programs.