November 27, 2021

Volume XI, Number 331


November 24, 2021

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EPA Approves Oklahoma Regulatory Control Over ‘Restored' Tribal Land

In the wake of McGirt v. Oklahoma, the Environmental Protection Agency (EPA) is granting the State of Oklahoma certain environmental regulatory authority over Indian Country within the state.  In a letter from EPA Administrator Wheeler, released by EPA on October 1, 2020 (EPA Letter), the EPA granted Governor Stitt’s request to administer federal environmental regulatory programs, including various portions of RCRA, CAA, CWA, SDWA, FIFRA, and TSCA. While the EPA Letter recognized “that, typically, in the absence of express authorization from Congress states do not have jurisdiction in Indian country to implement regulatory programs under the federal environmental laws administered by EPA,” that Section 10211(a) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005: A Legacy for Users, Pub. Law 109-59, 199 Stat. 1144, 1937 (August 10, 2005) ("SAFETEA") required EPA’s approval of Oklahoma’s request.   SAFETEA Section 10211 was a last-minute rider on the large transportation bill, sponsored by Senator Inhofe and passed over the objection of many Oklahoma Tribes.  The legislation creates a special grant of authority for the state of Oklahoma over Indian Country within the state and specifically mandates that EPA grant any request by Oklahoma to administer federal environmental regulations in Indian Country “without any further demonstration of authority by the state.”

Governor Stitt’s requested EPA’s approval for state jurisdiction less than a month after the U.S. Supreme Court’s historic decision in McGirt v. Oklahoma, which upheld the Treaty boundaries of the Muscogee Creek Nation and recognized that Indian Country in Oklahoma included a large area that Oklahoma state officials had long considered (and regulated as) no longer Indian lands.  The McGirt decision raises many jurisdictional questions surrounding the use and control of lands that were granted to five Oklahoma Tribes via Treaty, including the Muskogee (Creek) Nation, the Cherokee Nation, the Chickasaw Nation, Choctaw Nation, and Seminole Nation.  These lands make up the Eastern half of the state of Oklahoma.  EPA’s grant was hailed by some as a necessary step to clarify regulatory requirements within these areas, specifically by many energy companies with significant operations there.  However, each of the Oklahoma Tribal Nations affected by the grant oppose the action.

What’s Next?

Potential litigation could challenge EPA’s grant of authority to the State of Oklahoma and delay the state assuming regulatory control.  Legal challenges would likely center on claims regarding the sufficiency of EPA’s Tribal Consultation.   Pursuant to Executive Order 13175, the EPA is obligated to engage in government-to-government consultation with affected Tribes prior to approval.  Additionally, EPA’s Policy on Consultation and Coordination with Indian Tribes  establishes various, requisite milestones for the Agency’s consultation process.  Litigation to review whether and how EPA complied with its consultation obligations and milestones could delay the state’s assumption of environmental regulatory authority.   Other legal claims could include whether EPA exceeded its authority under SAFETEA, and specifically the implications of McGirt on the geographic scope of EPA’s approval.

The upcoming election could also complicate EPA’s grant of authority to the state of Oklahoma.  A Biden administration could seek to reverse course or delay implementation to allow for more robust consultation and engagement with Oklahoma Tribes.

Additionally, the EPA Letter may encourage Oklahoma Tribes to seek Treatment as a State under various federal environmental laws, which would reinstate Tribal environmental jurisdiction.  Under the SAFETEA Act of 2005, Oklahoma tribes are still able to receive “Treatment as a State” (TAS) by the EPA to administer federal environmental programs, but provides that all TAS requests are subject to review and approval by the EPA Administrator and a cooperative agreement with the State of Oklahoma and its relevant agency.

© 2021 Van Ness Feldman LLPNational Law Review, Volume X, Number 283

About this Author

Maranda Compton, Van Ness Feldman Law Firm, Environmental and Litigation Law Attorney

Maranda Compton focuses her practice on all aspects of Native American law and policy.  She is experienced in representing both tribal and non-tribal clients in a wide range of federal regulatory, environmental, energy, and natural resources issues, with particular knowledge of the oil and gas industry.

For her clients, Maranda provides a deep understanding of the diverse and complex factors involved in disputes, transactions and regulation arising in the tribal context.  Applying her intimate knowledge of Indian Country, she helps clients...

Laura E. Jones American Indian Law Attorney Van Ness Feldman Denver, CO

Laura focuses her practice on American Indian law, including economic development work, federal regulatory issues, environmental compliance, and federal-tribal consultation, as well as a broad range of civil litigation.  Laura has represented tribal and non-tribal businesses with regulatory and compliance matters, land use issues, and commercial lending transactions.  

Prior to joining Van Ness Feldman, Laura served as legal counsel for a tribal e-commerce corporation and previously worked at an international law firm in their Denver, Colorado office. Laura is a citizen of the...

Dana Stotsky Environmental Attorney Van Ness Feldman
Senior Counsel

Dana Stotsky focuses on environmental compliance and regulatory matters.  Dana assists clients in understanding environmental regulatory obligations, identifying the best way to maintain or re-establish compliance with those obligations, and defending them in enforcement actions.  His practice includes all areas of administrative law, including permitting, licensing, compliance assurance, responding to regulatory inquiries and inspections, responding to notices of violation, and participating in rulemaking proceedings.

Dana has 30 years of experience with federal air, water, waste,...

Robert Conrad, Van Ness Feldman Law Firm, Washington DC, Energy and Environmental Law Attorney

Robert Conrad is a  graduate of American University Washington College of Law.  His areas of interest include natural resources, historic preservation, land use, energy and environmental law. Prior to law school, Robert participated in the Conservation and Diversity Project Internship Program with the Conservation Trust for North Carolina and interned at the United States Department of Agriculture through the Washington Internship for Native Students program.

Robert is an enrolled member of the United Keetoowah Band of Cherokee Indians in...