Law & Principles
State retains environmental oversight—for now
October 8, 2020
The federal Environmental Protection Agency (EPA) has approved Gov. Kevin Stitt’s request for the state of Oklahoma to retain regulatory oversight of lands that may now be considered part of Indian reservations when those properties are not owned by a tribal government.
The EPA’s decision tempers, at least for a time, concerns about disparate environmental regulation across Oklahoma following the U.S. Supreme Court’s ruling in McGirt v. Oklahoma, which held that the Muscogee (Creek) Nation’s reservation was never disestablished.
While the McGirt ruling applied only to Creek land and questions of criminal prosecution, its precedent and basis are expected to result in application to numerous other issues, such as taxation and regulation, and also include the land of four other tribes and a combined territory that includes most of eastern Oklahoma.
In a July 22 letter, Stitt requested EPA approval of continued state oversight of environmental regulation in most of the area potentially affected by the McGirt ruling, citing the provisions of the federal Safe, Accountable, Flexible, Efficient Transportation Equity Act (SAFETEA) of 2005. A provision of that law authored by U.S. Sen. Jim Inhofe, R-Tulsa, requires the EPA to allow the state of Oklahoma to administer environmental programs in Indian country when the state requests that authority.
“Consistent with the extent to which the State of Oklahoma implemented environmental programs throughout the State prior to the U.S. Supreme Court’s recent decision in McGirt v. Oklahoma … the State of Oklahoma requests approval to administer all U.S. Environmental Protection Agency (“EPA”) approved environmental programs in areas of the State that are in Indian Country …” Stitt wrote.
The letter requested that the Oklahoma Department of Environmental Quality remain the entity in charge of administering a hazardous waste program, underground injection control programs, emission standards for hazardous air pollutants, and programs involving drinking water and water quality.
In addition, Stitt requested that the Oklahoma Department of Agriculture, Food and Forestry remain in charge of certain water pollutant discharge elimination programs (including those dealing with concentrated animal feeding operations, such as hog farms), that the Oklahoma Water Resources Board retain authority to oversee water quality standards and implementation plans, and that the Oklahoma Corporation Commission retain authority over underground storage tanks.
Stitt’s letter said the state is not seeking “approval to administer any programs in Indian country on lands” that qualify as Indian allotments or are held in trust by the United States on behalf of an individual Indian or Tribe. As a result, property owned by tribal governments would remain under the control of those tribal governments, while lands considered to be in a tribal reservation but not owned by the tribal government would remain subject to state jurisdiction.
On Oct. 1, the federal Environmental Protection Agency approved Stitt’s request.
“EPA recognizes 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 … Therefore, EPA generally excludes Indian country from its approval of state environmental regulatory programs,” the letter states. “However, where federal statute expressly provides for state program administration in Indian country, EPA must apply that law and approve a proper request for such state administration. Section 10211(a) of SAFETEA is such a law. The statute mandates that EPA approve a request from the State of Oklahoma to administer regulatory programs in areas of the State that are in Indian country where the statute’s elements are met.”
The EPA letter said the federal government will retain authority to administer federal environmental laws in the tribally owned areas excluded from state oversight in Stitt’s request.
While the McGirt decision dealt only with the Muscogee (Creek) Nation, it is expected to equally apply to the Cherokee, Chickasaw, Choctaw, and Seminole nations and expand authority into a greater range of areas. Officials from those five tribes have offered few specifics regarding actions that each tribe may take under their potentially expanded powers.
However, others have been more vocal. For example, Casey Camp Horinek, environmental ambassador for the Ponca Nation of Oklahoma, strongly criticized Stitt’s actions.
“The State of Oklahoma was founded on racism, and Stitt follows a long line of governors who have considered tribes sacrifice zones for fossil fuel industry profits,” Horinek said in a statement. “In recent years Oklahoma has shifted its economy to become a fossil-fuel dependent state, now home to the largest convergence of pipelines in the U.S., a fracking boom, and fracking wastewater injection-wells resulting in massive man-made earthquakes.
Horinek claimed oil and gas activity on or near tribal land has contaminated soil, rivers, aquifers and air, and added “to the climate crisis.”
“Tribes across the state have been targeted for environmental genocide at the hands of the oil and gas industry, enabled by state agencies and government officials, including the Governor’s office,” Horinek said, “and it all comes down to money.”