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Tribal Authority Over Air Pollution Sources on and off the Reservation

November 1995

Citation: ELR 10583

Author: Joshua Epel and Martha Tierney

Editors' Summary: Tension regarding state and tribal sovereignty over issues affecting Native American reservations has been on the increase for decades. Among these issues, protection of the environment is one of the most prominent. This Article discusses the role and extent of tribal sovereignty over air quality decisionmaking and examines the tools available to Native American tribes to protect air quality on the reservation from sources both inside and outside reservation boundaries. The authors analyze current case and statutory law pertaining to tribal authority over emission sources, and predict how a recent U.S. Environmental Protection Agency proposed rule that seems to conflict with current law is likely to impact tribal authority. They conclude that while tribes have substantial control over air quality decisions on reservation lands, tribes will continue to have difficulty affecting the behavior of stationary sources outside the reservation, even when those sources adversely affect the reservation's air quality.

Joshua Epel is an environmental attorney with Gablehouse & Epel in Denver, Colorado. His law practice emphasizes air quality compliance and hazardous and solid waste management. Mr. Epel is a member of the Public Advisory Committee of the Grand Canyon Visibility Transport Commission and a member of the Regional Air Quality Council, the lead planning agency for the Denver metropolitan area. He participated in the drafting and enactment of the Colorado Air Pollution Prevention and Control Act and Clean Air Act Title V implementing regulations and currently advises stationary sources on Title V, prevention of significant deterioration, and new source review permitting. Mr. Epel received his undergraduate degree from William James College and his J.D. from Franklin Pierce Law Center.

Martha Tierney is a third-year joint degree student at Vermont Law School working toward both J.D. and Master of Environmental Law degrees. She has worked with Gablehouse & Epel on several projects involving the Clean Air Act's prevention of significant deterioration and Title V permitting programs, as well as issues pertaining to tribal sovereignty and the Comprehensive Environmental Response, Compensation, and Liability Act. Ms. Tierney received her undergraduate degree from Colorado College.

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