Wednesday, October 4, 2023
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Wednesday, October 4, 2023 | Back issues
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Air Plan for Indian Land Off the Rez Disintegrates

(CN) - Indian country that is not part of a reservation or under any tribe's jurisdiction need not face federal regulation of air quality, the D.C. Circuit ruled.

The Environmental Protection Agency had sought in 2011 to establish a plan for the attainment of national air quality standards over nonreservation lands in Indian country.

Oklahoma challenged the plan, claiming that the state's air quality regulations should apply to all nonreservation Indian lands within its geographic borders.

The Navajo Nation, the Shakopee Mdewakanton Sioux Community, the Red Lake Band of Chippewa, and the United South and Eastern Tribes Inc. intervened in support of the EPA.

A three-judge panel of the D.C. Circuit nevertheless ruled Friday for Oklahoma.

The Clean Air Act grants the states jurisdiction to implement the Act, so the EPA may administer a federal program only "in the shoes of a tribe or the shoes of [a] state," according to the ruling.

If the state or tribe has an implementation plan, then the federal agency has no authority to impose its own plan.

"The EPA may in certain circumstances implement a federal program in Indian country, but when it does so, in our view, it is subject to the same jurisdictional limitations as the tribe in whose shoes it stands," Judge Douglas Ginsberg wrote for the panel. "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, we hold the agency was without authority to displace Oklahoma's state implementation plan in non-reservation Indian country."

Jurisdiction to implement the Clean Air Act must lie either with the state or with the tribe - the EPA does not have the third option of implementing a plan itself, the 19-page opinion states.

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