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Oklahoma Department of Environmental Quality v. Environmental Protection Agency

ELR Citation: 44 ELR 20013
Nos. 11-1307, (D.C. Cir., 01/17/2014)

The D.C. Circuit vacated EPA's new source review (NSR) rule for Indian country, which established a federal implementation plan (FIP) covering all Indian country nationwide except where EPA had already approved a tribal NSR program or expressly authorized a SIP to be enforced. Because SIPs did not ordinarily apply to Indian country and few tribes had sought to administer the Act over their lands, EPA concluded much of Indian country was unregulated. EPA therefore issued the FIP in order to fill the regulatory gap until a tribe's approved NSR program displaced the FIP. Oklahoma filed a petition for review, arguing that its SIP should apply to non-reservation Indian country within the state. The court agreed. EPA requires a tribe to show it has jurisdiction before regulating Indian country outside a reservation, yet here, the Agency made no demonstration of tribal jurisdiction before itself regulating those areas. EPA, therefore, was without authority to displace Oklahoma's SIP in non-reservation Indian country. The court, therefore, vacated the Indian Country NSR rule with respect to non-reservation lands.