25 ELR 10583 | Environmental Law Reporter | copyright © 1995 | All rights reserved

Tribal Authority Over Air Pollution Sources on and off the Reservation

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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[EDITOR'S NOTE: THE ORIGINAL SLIP OPINION CONTAINED ILLEGIBLE WORDS AND/OR MISSING TEXT. THE LEXIS SERVICE WILL PLACE THE CORRECTED VERSION ON-LINE UPON RECEIPT.]

Air quality on Native American lands presents complex choices for tribes that must decide whether to maintain the currently pristine air quality on their reservations or to provide for future industrial development, with its attendant economic benefits and potential environmental harm. Several legal issues face tribes that want to assume primacy over air quality decisionmaking on and near their reservations. Judicial determinations as to tribal authority and existing and proposed agency interpretations of statutory grants of authority under the Clean Air Act (CAA) all impact these issues.¹

As a general rule, a tribe can regulate stationary sources of air pollution that are inside the exterior boundaries of the reservation under both the common law and the CAA. Recent judicial decisions, however, reach different conclusions regarding tribal jurisdiction over on-reservation sources depending on whether the source is located on lands that the United States holds in trust for tribal occupancy or on lands within the reservation that individuals hold in fee. Further, in August 1994, the U.S. Environmental Protection Agency (EPA) proposed a rule concerning tribal authority over air quality planning and management on the reservation that will be central to resolving the uncertainty that tribes currently face.² This rule would grant tribes the same authority as states, and authorize qualifying tribes to create their own programs and implement their own regulations.³ Tribal authority to affect the behavior of or enforce tribal standards against stationary sources that are outside the reservation presents separate issues. Mechanisms available to regulate off-reservation sources include citizen suits under CAA § 304 as well as tribal requests under CAA § 126's interstate enforcement provision or Title V's permitting provision for EPA to make a determination of whether an upwind [25 ELR 10584] state has allowed a stationary source to violate a provision of the CAA.

Tribal Jurisdiction to Regulate Sources on Reservation Lands

The federal government, individual states, and Native American tribes all assert interests in controlling air pollution on Native American reservations. The question of which entity should regulate in this area presents complex issues of federal law, Native American sovereignty, and state autonomy and sovereignty. Although it is clear that tribes can generally regulate stationary sources on reservation lands, some conflict exists between the common law and proposed federal regulations when the stationary source is found on fee, rather than reservation trust, lands. As a result of this conflict, courts will often be the ultimate decisionmakers as to who has primacy in a particular situation.

Additionally, most federal environmental statutes contain provisions designed to settle intergovernmental disputes over environmental regulation on Native American reservations. Many federal pollution control acts contain provisions mandating that tribes be treated as states for purposes of their statutory schemes.⁴ The CAA, however, lacked such a provision until Congress amended it in 1990. The 1990 amendments provided EPA with the authority to promulgate regulations specifying those provisions of the CAA for which it is appropriate to treat tribes in the same manner as states.⁵ EPA's August 1994 proposed rule establishes those regulations and sets forth requirements that a tribe must meet if it chooses to seek treatment as a state. The proposed rule conflicts somewhat with the existing body of common law, however, and as a result blurs the division of power between tribal, state, and federal entities.

The Prevention of Significant Deterioration Program

Before the 1990 CAA amendments, tribes could only affect air quality on the reservation through the Prevention of Significant Deterioration (PSD) program, which Congress created to protect air that is cleaner than the National Ambient Air Quality Standards (NAAQS).⁶ The PSD program includes three air quality classifications and permitting provisions for major sources, and is divided into two major subparts.⁷ Subpart I, entitled "Clean Air," includes the air quality increment concept, designation of Class I and Class II areas for differing levels of protection, and preconstruction permit requirements for new major sources and major modifications to existing sources.⁸ Subpart I identifies visibility as an "air quality related value" to be considered in the permitting of emission sources.⁹ Subpart II, entitled "Visibility Protection," establishes a national goal of remedying existing visibility impairment in Class I areas and preventing future impairment.¹⁰ To achieve this goal, the CAA requires states to develop state implementation plans (SIPs) containing long-term strategies including emission limits, compliance schedules, and installation of best available retrofit technology¹¹ on defined sources that contribute to visibility impairment in Class I areas.

Under the PSD program, any tribe in an attainment area may redesignate its reservation lands from Class II, which allows some deterioration of air quality, to Class I, which allows significantly less deterioration of air quality. Few tribes have opted to redesignate their lands, although the number is growing.¹² The Northern Cheyenne Tribe in Western Montana redesignated its lands from Class II to Class I in order to protect its air quality from the effects of a coal strip-mining operation outside the reservation.¹³ The Confederated Salish and Kootenai Tribes of Flathead Reservation, also a Montana tribe, redesignated its reservation lands in 1982 to protect them from the emissions of a pulp and paper factory 10 miles south of the reservation.¹⁴ Before redesignation, neither of these tribes had any mechanism to protect the more pristine air quality on their reservations from nearby emissions that had detrimental effects. In theory, redesignation provides tribes with the authority to set stricter standards for air quality on their reservations and thus indirectly control emissions from nearby sources by exposing those sources to EPA enforcement actions if they violate the reservation's standards. In practice, however, redesignation has failed to effectively provide tribes with protection for pristine air quality because the decision to find a violation and enforce a remedy ultimately rests with EPA, not with the tribe.

Additionally, negative state reaction to proposed PSD redesignations could impede tribal authority over air quality. A June 1995 letter to the EPA Administrator from the governors of Michigan and Wisconsin reveals that [25 ELR 10585] states may be unwilling to quietly relinquish control over air quality designations on reservation lands.¹⁵ The letter protested the Potawatomi Tribe's proposed redesignation of its reservation lands from Class II to Class I.¹⁶ It emphasizes that redesignation would significantly infringe upon the ability of the states' governments to manage resources within the states: "no entity, including Native American tribal units, can be allowed to impact on or interfere with our states' abilities to manage and protect the public interest."¹⁷

Similarly, Arizona's governor has initiated a lawsuit against the Yavapai Apache Tribe of Camp Verde, Arizona, in response to the tribe's efforts to redesignate its reservation lands from Class II to Class I.¹⁸ The tribe and the state of Arizona are engaged in mediation as § 164 of the CAA requires.¹⁹ EPA's response to these state challenges may determine whether tribes can continue to use PSD redesignations to protect reservation air quality.

The Common-Law Distinction Between Reservation Trust Lands and Fee Lands

Under common-law precedent, whether a tribe can regulate a pollution source on the reservation is a function of whether the source is on fee or reservation trust land. Reservation trust lands are lands that the United States government holds in trust for exclusive tribal occupancy. Federal law protects the tribe's possessory interests and imposes statutory restraints on alienation. Tribes generally have the power to regulate conduct on reservation trust lands unless federal or state law preempts tribal regulation.²⁰

Fee lands are lands that lie within the boundaries of a reservation, but that private entities own in fee.²¹ Fee lands came to exist under a former policy of allotting reservation lands to individual tribal members.²² These allotments were subject to an initial 25-year restriction on alienation, after which the allottee could receive a patent-in-fee to the land.²³ Congress later eliminated this practice;²⁴ however, many tribe-member owners eventually sold much of the patented land, which generally remained within the exterior boundaries of the reservation, to nonmembers. Many reservations are thus now characterized by a "checkerboard" pattern of fee and reservation trust land ownership. This checkerboard configuration promotes jurisdictional conflicts between state, federal, and tribal governments. Many of these conflicts have ended up in court.

Case law has established that tribes generally have the authority to regulate stationary sources on reservation trust lands. To date, the Supreme Court has not addressed emissions from stationary sources on reservation lands directly. It denied certiorari, however, in a case in which the Ninth Circuit upheld EPA's approval of a redesignation and indirectly recognized tribal control over the entrance of emissions onto the reservation from an off-reservation source.²⁵ The Supreme Court has determined that tribes retain inherent powers of self-government over tribal members.²⁶ The Court has also recognized that tribes retain authority to regulate the conduct of nonmembers while on reservation trust lands, including the power to exclude nonmembers and to place conditions on their entrance and continued presence.²⁷ In New Mexico v. Mescalero Apache Tribe, New Mexico claimed concurrent jurisdiction to regulate hunting and fishing on the Mescalero Apache Reservation. The Supreme Court reasoned that concurrent jurisdiction of the state and tribe would interfere with the comprehensive tribal regulatory scheme and threaten Congress' commitment to the encouragement of tribal self-sufficiency and economic development. The Court recognized "the Tribe's unquestioned authority to regulate the use of its resources by members and nonmembers . . . ."²⁸ In light of these Supreme Court decisions, courts will likely find that a tribe has the authority to regulate a stationary source on reservation trust lands.

Conversely, it is unlikely that a tribe has the authority to regulate a pollution source on fee lands, absent extraordinary circumstances. In 1981, the Supreme Court ruled in Montana v. United States²⁹ that tribes lack authority to regulate nonmember conduct on fee lands within a reservation. The Crow Tribe had sought exclusive jurisdiction within its reservation to regulate nonmember hunting and fishing on nonmember-owned fee lands. The Supreme Court found no express treaty or statutory right for tribes to regulate nonmember conduct on fee lands. But it did find, in dicta, two possible exceptions to this limited scope of tribal authority, the second of which is directly applicable to environmental issues.³⁰ Initially, it seemed that the second Montana exception would make it possible for tribes to regulate the conduct of nonmembers on fee lands when that conduct threatens or has some direct effect on the political integrity, economic security, or health and welfare of the tribe.³¹ Lower courts used this exception to allow tribes to regulate nonmember conduct affecting natural resources within Native [25 ELR 10586] American reservations, because such activity has the potential to affect the health and welfare of the tribe.³²

In light of later Supreme Court cases, however, it appears doubtful that courts will continue to apply the "threatening use" Montana exception to find tribal authority over the use of fee lands by nonmembers. In Brendale v. Confederated Tribes & Bands of Yakima Indian Nation,³³ the Yakima Tribe attempted to impose zoning regulations on two parcels of nonmember property. One was located in an area of the reservation that was 97 percent tribal property preserved in a natural state, and the other was in a heavily checkerboarded area. The district court had held that the tribe lacked zoning authority over the checkerboarded parcel.³⁴ Relying on Montana, however, the court had also held that the tribe had a protectable interest, and therefore had zoning authority over the naturally preserved property, because development there posed a threat to the tribe's political integrity, economic security, and health and welfare.³⁵ On appeal, the Ninth Circuit found that the tribe had sufficient protectable interests to allow zoning authority in both parcels.³⁶ The Supreme Court reversed and held that the tribe had no authority to regulate the use of fee land through tribal ordinances or actions in tribal courts.³⁷ The Court reasoned that if tribes were allowed to regulate nonmembers on fee land under the Montana exception, inconsistencies would develop because a tribe could regulate a nonmember's conduct only as long as the threatening use continued and authority could vest alternately in the state and the tribe depending on the current use. Rather than perpetuate this confusion, the Supreme Court held that tribes could not regulate fee land, and could use the Montana exception only to identify tribal interests as a basis for relief in administrative or judicial tribunals.³⁸

The Supreme Court has maintained this view in subsequent cases. In South Dakota v. Bourland,³⁹ South Dakota sued the Cheyenne River Sioux Tribe to enjoin tribal regulation of non-Native American hunting and fishing on reservation lands that the tribe had conveyed to the United States under the Cheyenne River Act⁴⁰ and the Flood Control Act of 1944.⁴¹ The Court found that the tribe's conveyance of the land deprived it of jurisdiction over nonmembers:

Montana and Brendale establish that when an Indian tribe conveys ownership of its tribal lands to non-Indians, it loses any former right of absolute and exclusive use and occupation of the conveyed lands. The abrogation of this greater right . . . implies the loss of regulatory jurisdiction over the use of the land by others.⁴²

The Bourland Court held that regulatory authority over nonmembers on fee lands cannot exist without express congressional delegation.⁴³

Before Bourland, tribes could apparently regulate emission sources on fee land where the parcel was located in geographically unique portions of the reservation dominated by trust lands that have particular cultural significance to the tribe.⁴⁴ After Bourland, however, it seems that inherent tribal regulatory authority extends to nonmembers only when some sort of express or constructive consent is present,⁴⁵ such as when nonmembers enter into voluntary on-reservation business transactions with tribes or use reservation trust lands,⁴⁶ or when Congress has specified such authority. Thus, Brendale and Bourland have significantly limited common-law tribal authority to regulate pollution sources on fee lands.

Consequently, courts will usually uphold state jurisdiction where the state asserts regulatory authority over nonmembers or nonmember-owned fee lands. State authority on trust lands requires a careful balancing of state, federal, and tribal interests. Generally, the state interest is heightened where an on-reservation activity threatens the continued existence of a migratory resource such as water or game,⁴⁷ or where the on-reservation activity has potentially serious off-reservation effects that necessitate state intervention.⁴⁸ These off-reservation effects could include air pollution from sources within Native American lands where those sources are affecting downwind states.

Nonetheless, courts generally recognize tribes as retaining authority to regulate the conduct of nonmembers on tribal trust lands. This authority, which arises from the tribe's power to exclude nonmembers entirely or to condition [25 ELR 10587] tion their presence on tribal lands, effectively preempts state jurisdiction in many cases.⁴⁹

CAA Title V Permitting

Congress included the Title V permitting program in the 1990 CAA amendments in an effort to consolidate the air pollution control requirements so as to improve enforcement, clarify how each source must comply with applicable requirements, and simplify the regulation of individual emission sources.⁵⁰ Title V establishes the minimum requirements that a state must include in its operating permit program. These minimum requirements include standards for permit applications, monitoring and reporting systems, annual fees, personnel and funding, appropriate assurances of adequate authority to administer the program, and permit revisions.⁵¹ EPA required states to develop their own regulations and to submit air permit programs to EPA for approval. After a state submits its program, EPA has one year to approve or disapprove it.⁵² After EPA approves the program, major stationary sources within the state must acquire an operating permit from the state agency.⁵³

Under EPA's proposed rule, tribes that have satisfied the requirements for receiving treatment as a state have also generally demonstrated adequate resources to operate Title V permitting programs. A permitting program would enable a tribe to have considerably more control over stationary sources and air quality on the reservation. Once a tribe has enacted a Title V program, stationary sources on the reservation must obtain an operating permit from the tribal administering agency. Permitted sources would also have to submit all CAA compliance information to the tribe, rather than to the state or federal government. Such information would include a description of the emitting source's compliance; a compliance schedule for sources not yet in compliance with a sequence of enforceable remedial measures; monitoring, recordkeeping, and recording data; and a progress report signed by a responsible official at the source at least every six months.⁵⁴ A Title V program would allow a tribe to control permitting of emission sources within the reservation, and would provide the authority to revoke or deny permits to sources that fail to comply with the program.

While a Title V program would give tribes considerably more control over their air quality than now exists, enactment of a Title V program is a very labor and financial resource-intensive process. A tribe would have to promulgate all of the applicable requirements under the CAA, including a tribal implementation plan (TIP), a PSD program, and any applicable nonattainment regulations. The process would also require considerable expertise and administrative resources with which the tribe could carry out implementation of the program. If a tribe wants to permit stationary sources on the reservation, it will have to implement its own TIP and Title V program or remain subject to the standards that EPA will set in the absence of such a program.

The Navajo tribe is currently the only tribe working toward implementation of its own Title V program. The tribe enacted the Navajo Nation Pollution Prevention and Control Act in July 1995.⁵⁵ The Act includes regulations for compliance and enforcement of air quality standards on the reservation. It also establishes a framework for eventual permitting of on-reservation stationary sources. Existing stationary sources on the Navajo reservation have challenged the authority of the tribe to implement the Act by arguing that language in the multiyear land leases signed by the Department of the Interior exempt those sources from tribal regulatory measures.⁵⁶ In addition, tribal representatives anticipate that stationary sources will challenge the legality of the Act, arguing that the tribe is usurping the state's jurisdiction.⁵⁷

EPA's Proposed Rule

EPA's proposed rule concerning tribal authority over air quality planning and management would greatly expand the authority of tribal governments and may be contrary to judicial precedent. While federal and state regulatory programs currently govern air quality on Native American reservations, under EPA's proposed rule, tribes themselves would have the opportunity to assume responsibility for air quality planning and enforcement on reservations. Originally, the CAA did not address what role tribal governments would play in air quality planning or enforcing air quality programs on tribal lands.⁵⁸ The 1990 amendments to the CAA added § 301(d), which enlarged tribal authority by authorizing EPA to promulgate regulations specifying those CAA provisions for which it is appropriate to treat Native American tribes as states.⁵⁹ Section 301 also allows EPA to establish the elements of TIPs. Pursuant to this provision, EPA proposed a rule in August 1994 called Indian Tribes: Air Quality Planning and Management.⁶⁰ The rule proposes that tribes be eligible to implement the same CAA programs as states, and be treated the same as states, with some exceptions. For example, EPA intends to exempt tribes from many of the deadlines that the CAA imposes on states, because tribes lack experience with planning and CAA implementation.⁶¹

Under the CAA, for a tribe to be eligible for treatment like a state, it must be federally recognized and meet three [25 ELR 10588] additional criteria: (1) it must have an adequate governing body; (2) the governing body must be capable of implementing the particular requirements of the CAA and applicable regulations for which the tribe is seeking program approval; and (3) the governing body must be able to implement these requirements within the exterior boundaries of the reservation or other areas within the tribe's jurisdiction.⁶² Under the proposed rule, a tribe becomes eligible to assume control over implementing and maintaining the NAAQS within its boundaries when it meets these requirements.

Tribes that have opted to apply for treatment as a state under other statutes have had mixed views on the outcome. For example, after the Confederated Salish and Kootenai Tribes of the Flathead Reservation applied for and received treatment as a state under the Federal Water Pollution Control Act (FWPCA), the state of Montana sued the tribe to challenge its jurisdiction and authority over water quality and enforcement.⁶³ In light of this experience, the tribe has been reluctant to apply for treatment as a state under the CAA. Although the tribe currently has its own air quality program, EPA, which retains jurisdiction and authority over the tribe's air quality enforcement, oversees the tribe's program.⁶⁴

Both the CAA and the proposed rule include provisions for tribesto impose air pollution control requirements that are more stringent than federal standards.⁶⁵ Tribes retain this discretion except where the Act explicitly preempts or precludes the establishment of stricter standards, as in certain instances where uniformity is necessary to avoid an undue burden on the interstate sale of goods.⁶⁶ In such instances, the CAA expressly prevents states from imposing stricter standards, and therefore, the federal CAA requirements determine both the nationwide floor and ceiling. Likewise, under the proposed rule, tribes will have the authority to exceed minimum federal requirements, but will be preempted from imposing stricter standards where Congress has so specified.

EPA's proposed rule may conflict with current Supreme Court precedent holding that tribes generally lack the authority to regulate fee lands. The text of the proposed rule includes the following:

It is EPA's proposed interpretation of the CAA that the Act grants, to Tribes approved by EPA to administer CAA programs in the same manner as States, authority over all air resources within the exterior boundaries of a reservation for such programs. . .however, a Tribe's inherent authority must be determined on a case-by-case basis, considering whether the conduct being regulated has a direct effect on the health or welfare of the Tribe substantial enough to support the Tribe's jurisdiction over nonmembers [citing Brendale]. Such a determination is not necessary with a direct grant of statutory authority.⁶⁷

Although EPA argues that Brendale supports the proposed rule's grant of authority, that EPA makes this argument indicates that even EPA is not sure if it has the authority to promulgate such a rule. EPA's recognition of tribal primacy over nonmember fee lands has generated considerable controversy. Many states have submitted comments to EPA contesting its conclusion that Supreme Court cases support inherent tribal jurisdiction over fee lands in all cases.⁶⁸ Based on this reaction, judicial challenges to EPA's tribal regulations are certain to occur as EPA begins to implement the CAA's tribal primacy provisions.

Tribal Authority to Regulate Off-Reservation Sources

The CAA provides three mechanisms for states or tribes to challenge emissions from an upwind source. Tribes may try to protect their air quality by participating in the PSD program; however, in practice the PSD program has failed to provide such protection. Tribes may also sue states under the § 304 citizen suit provision,⁶⁹ although courts have been reluctant to enforce interstate emissions violations. Finally, tribes may petition EPA under the CAA's interstate enforcement provision⁷⁰ or under the permitting provision of Title V⁷¹ to make a determination of whether an upwind state has violated the CAA. But the ultimate decision whether to compel a state to require a stationary source to reduce its emissions remains with EPA.

The Prevention of Significant Deterioration Program

A central problem for Native American tribes is that air pollution does not recognize tribal boundaries, while existing regulatory mechanisms—the CAA and doctrines of tribal sovereignty—depend on boundaries. The PSD program is designed to control emissions from major stationary sources near clean areas. But the program presents enforcement problems for tribes adversely affected by major sources of air pollution because major sources that undergo modifications that are less than "significant" may avoid the requirement to install best available control technology.⁷² Moreover, the CAA does not require major sources to evaluate the air quality impacts of insignificant emissions increases on nearby attainment areas. Additionally, although the statute requires major stationary sources to obtain PSD permits, the statute does not prevent emissions from numerous smaller stationary sources from consuming clean air resources.⁷³ Further, visibility impairment may actually increase significantly under a PSD program because the program does not regulate levels of pollutants emitted from [25 ELR 10589] minor sources,⁷⁴ nor does it require a permit prior to construction of a minor emission source.⁷⁵

The Ninth Circuit has recognized a tribe's authority to use the PSD program to protect air resources on its reservation from the off-reservation emissions. In Nance v. U.S. Environmental Protection Agency, the court upheld EPA's delegation of authority to the Northern Cheyenne Tribe to redesignate its territory from Class II to Class I.⁷⁶ Nance involved an off-reservation coal strip-mining operation that alleged that EPA's approval of the redesignation was arbitrary and capricious because EPA failed to consider the redesignation's effect on strip-mining. The Nance court held that the decision was not arbitrary and capricious. Both the Northern Cheyenne Tribe and EPA had considered whether the redesignation would affect strip mining, and had concluded that strip-mining operations were not covered, and were therefore not affected by existing PSD regulations.⁷⁷ The Nance court further found that "just as a tribe has the authority to prevent the entrance of non-members onto the reservation, a tribe may exercise control, in conjunction with the EPA, over the entrance of pollutants onto the reservation."⁷⁸ The Nance court reasoned that the tribal interest in managing the reservation environment and the federal policy of encouraging tribes to assume or at least share in management responsibility were controlling.⁷⁹ Nance, therefore, recognized the Cheyenne governing body's authority to control air quality standards on its reservation lands using the PSD program and enabled the tribe to protect its air quality from outside degradation.

Section 304 Citizen Suits

Tribes may also attempt to control emissions from off-reservation sources by commencing civil actions under the § 304 citizen suit provision. Tribes may sue under § 304 even if they have not become eligible for treatment as a state, because § 304 allows "any person" to commence a civil action against any person or entity, including a private party or a federal or state government or agency, alleged to have violated an emission standard under the CAA.⁸⁰ Under § 304, a tribe could sue either a stationary source directly, alleging a violation of an emission standard or permit limitation, or could challenge a state's failure to adequately regulate the emissions of a source or group of sources that are adversely affecting reservation lands.⁸¹ The tribe must first identify the violation and give 60 days' notice of intent to sue to EPA and the state. If EPA or the state does not act to abate the alleged violation, the tribe may file suit in district court. If the tribe proves a violation, the court may enter an order compelling compliance and/or assess civil penalties. The court may also award the tribe its litigation costs, including attorneys and expert witness fees.⁸² Tribes have not used the § 304 citizen suit provision frequently.

Citizen suits have not proven effective as a method to curtail off-reservation emissions, because courts have not favored interstate enforcement of interjurisdictional emissions, as discussed below. While citizen suits can offer a tribe injunctive relief in some instances, until the courts begin to acknowledge and compel interstate enforcement, a citizen suit may have little remedial effect to control off-reservation emissions.

Section 126 Petitions for Notices of Violations

Tribes that have received treatment as a state, and consequently demonstrated adequate resources to operate Title V permitting programs, can attempt to control emissions from off-reservation sources by petitioning EPA under § 126, the interstate enforcement provision. Under § 126, tribes may ask EPA for a finding that a major source in another state is emitting or will emit pollutants in violation of the NAAQS.⁸³ If EPA finds that the source is violating the NAAQS, EPA may then decide to compel the violating state to require the source to reduce its emissions. Enacted as part of the CAA amendments of 1977, § 126 is devoted exclusively to abatement of interstate air pollution.⁸⁴ In conjunction with amended CAA § 110, it requires EPA to determine, before it approves any new or revised SIP, that the SIP contains adequate provisions prohibiting any stationary source within the state from emitting any air pollutant in amounts that will prevent attainment or maintenance of the NAAQS by any other state.⁸⁵ Section 126 also requires states to notify nearby states of all major existing or proposed stationary sources that may contribute significantly to air pollution problems in a downwind state.⁸⁶

EPA's proposed rule also addresses the potential for sources to adversely impact air quality on downwind state or tribal lands.⁸⁷ EPA has taken the position that § 126's protections against interstate pollutant transport apply with equal force to states and tribes. This interpretation means that § 126's requirement that states prohibit emissions within the state from significantly contributing to nonattainment, interfering with maintenance of the NAAQS, or interfering with measures under the PSD programs of other states would also require states to prohibit interference with tribal air quality.⁸⁸ Consequently, a tribe could petition EPA to enforce these prohibitions against a state containing an allegedly offending source or group of sources.

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The trend in current CAA case law reveals that effective control by a neighboring state or tribe over interstate emissions remains unlikely. Courts have tended to read the requirements under the CAA as increasingly broad, thereby refusing to find violations except in the most egregious situations. The problem of enforcement on reservation lands is compounded further because neither § 110 nor § 126 clearly define when the interstate pollution abatement provisions are triggered.⁸⁹ It is, therefore, unclear what amount of pollution would compel EPA to require reductions from off-reservation or out-of-state stationary sources.

The courts also have been unable to reach a consensus on the meaning of § 110. In Alabama Power Company v. Costle,⁹⁰ the D.C. Circuit found that § 126 was a vehicle for abating substantial interstate air pollution. But the court did not address the significantly contribute" language in the statute, thereby leaving ambiguous what amount of air pollution might constitute a significant contribution to a NAAQS violation in another state and thus require written notice before construction of a new source.⁹¹ Further, in Connecticut v. U.S. Environmental Protection Agency,⁹² the Second Circuit refused to adopt the "significantly contribute" standard from § 126 because it was too simple a test for the difficult determination of when a state actually prevents the attainment or maintenance of the NAAQS in another state.

Similarly, although the CAA allows a state or tribe to impose air pollution control requirements that are more stringent than federal standards, courts have declined to consider a downwind state's more stringent standards as controlling over the NAAQS. In a second case involving Connecticut and EPA, the Second Circuit held that although § 110(a)(2)(E) provides that each SIP must assure that pollutants will not be emitted in quantities likely to hinder nearby states in attaining the NAAQS, nothing in the CAA indicates that a state must respect a neighbor's air quality standards that are more stringent than the requirements of federal law.⁹³ The Court concluded that the statute's clear intent was to require interstate compliance only as far as necessary to allow each state to comply with the NAAQS and the PSD provisions.⁹⁴ The Second Circuit left open, however, the question of whether it would reach the same conclusion where a neighboring state had filed a § 126 petition.⁹⁵

The Sixth Circuit took up this question in Air Pollution Control District of Jefferson County v. U.S. Environmental Protection Agency,⁹⁶ in which Kentucky filed a § 126 petition for abatement of sulfur dioxide emissions from a power plant in Indiana. EPA had interpreted the "prevent attainment or maintenance" language of § 110 to mean that an interstate polluter must "cause or substantially contribute" to a violation of the NAAQS in another state before the interstate pollution abatement provisions are triggered.⁹⁷ According to this interpretation, EPA cannot grant a § 126 petition unless there is a NAAQS violation in one state and pollution emissions in another state that substantially contribute to that violation. Kentucky argued that § 126 forbids a polluting state to make "any contribution" to a NAAQS violation in a downwind state.⁹⁸ The court held that the test for the grant of a petition under § 126 was whether one state "significantly contributes" to the violation of NAAQS in another state.⁹⁹ In reaching this conclusion, the court reasoned:

we do not believe that Congress intended to prohibit even de minimis contributions by one state to NAAQS violations in another state because such a policy would in effect hold one state hostage to another's failure to enact the pollution control strategies necessary to conform to the requirements of the Clean Air Act.¹⁰⁰

Accordingly, the "significantly contributes" standard of the Sixth Circuti gives little guidance for determining when EPA eill grant a § 126 petition. Generally, unless there is a violation of the NAAQS, EPA will not act.

CAA Title V Permitting

In addition to the § 126 petition process, tribes may attempt to affect the behavior of an off-reservation stationary source through the Title V permitting process. CAA § 505(a) requires each permitting authority to give notice of all proposed permits to all states (or tribes eligible for treatment as a state) whose air quality may be affected and that are contiguous to the state in which the emissions originate or are within 50 miles of the emission source.¹⁰¹ The permitting state must further provide an opportunity for neighboring states, or tribes that have received treatment as a state, to submit written recommendations respecting the issuance of a permit, and if the permitting state does not accept those recommendations, it must describe its reasons in writing to both the neighboring state or tribe and to EPA.¹⁰² If the permitting state does not adopt the recommendations, the neighboring state or tribe can petition EPA to compel the permitting state to require further protections.

Even if the tribe has not received treatment as a state, it still has an enforcement mechanism under Title V, because the CAA provides for public participation and broad judicial review.¹⁰³ Section 505(b)(2) states that "any person" that participated in the comment period for a proposed permit may petition EPA with objections to the permit that were raised during the public comment period.¹⁰⁴ A tribe would thus be able to petition EPA to object to a permit regardless of whether or not the tribe has enacted a TIP or a Title V program. The EPA Administrator must grant or deny the petition within 60 days and must issue an objection to the permit within the same period if the petitioner demonstrates to the Administrator that the permit is not in compliance with the CAA's requirements, including the requirements of the applicable implementation plan.¹⁰⁵ Once EPA objects to a permit, the state or tribal permitting agency must either modify the permit or challenge EPA's objection. EPA must then either deny or grant the permit, after which any person involved in the permitting process may seek judicial review.¹⁰⁶

Judicial Treatment of Interstate Enforcement Mechanisms

As yet, no clear trend regarding which way courts will construe the CAA's interstate enforcement mechanisms has emerged. A number of cases interpreting the FWPCA, however, have dealt with the issue of interstate enforcement.¹⁰⁷ International Paper Co. v. Oullette demonstrated the Supreme Court's unwillingness to allow a state to extend unilaterally its environmental standards inside the boundaries of a neighboring state.¹⁰⁸ In Oullette, Vermont sought to enforce its stricter water standards against New York to abate the latter's pollution of Lake Champlain. The Court concluded that the FWPCA precludes a court from applying the law of an affected downstream state against an out-of-state source.¹⁰⁹ The Court reasoned that permitting such actions would allow a state "to do indirectly what it could not do directly— regulate the conduct of out-of-state sources."¹¹⁰

Recently, however, there has been some indication that courts might be ready to recognize and uphold some interstate enforcement mechanisms. In Arkansas v. Oklahoma,¹¹¹ another FWPCA case, the Supreme Court acknowledged that the potential injurious effects of decreased water quality makes input and influence from neighboring affected states necessary. The Court held that a downstream state's direct participation in deciding whether EPA can grant a permit is limited, but that EPA is entitled to deference and may consider a downstream state's water quality standards or require an upstream state to comply with them.¹¹²

In a recent case involving a tribe and a state, City of Albuquerque v. Browner,¹¹³ EPA adopted the holding in Arkansas v. Oklahoma and approved water quality regulations for the Rio Grande River promulgated by the Isleta Pueblo in New Mexico. The Pueblo's standards were significantly stricter than those that New Mexico had established. The city of Albuquerque, which lies upstream of the Pueblo, filed suit against EPA alleging that its approval of the Pueblo's water quality standards was arbitrary and capricious. The city argued that compliance with the water quality standards would require it to invest up to $248 million in new water treatment facilities. The Court held that EPA had followed the necessary procedural steps in accepting Isleta Pueblo's proposed water quality standards.¹¹⁴ The city appealed this decision to the Tenth Circuit.¹¹⁵ Although the appeal is still pending, the city, the tribe, EPA, and the state environmental department have entered into a settlement agreement that provides for a study to be conducted on discharges from the city's wastewater treatment plant to determine their chemical composition. Pending the outcome of that study, the city's water quality standards will remain in effect. Nonetheless, EPA's reaction toward the tribal plan, and the lower court's affirmance of that reaction, may signal a trend in favor of stronger interstate enforcement. It will be interesting to note if other courts follow the reasoning of Arkansas v. Oklahoma and City of Albuquerque v. Browner, however, because in both cases the courts merely upheld procedure—not substance.

CAA §§169a and 169b's visibility protections have also produced judicial challenges from emission sources in which courts have shown some willingness to recognize and uphold interstate enforcement mechanisms.¹¹⁶ These challenges often result when a state fails to submit a revised SIP, and EPA therefore implements a federal implementation plan (FIP) in order to force sources within the state to comply with the CAA. In Central Arizona Water Conservation District v. U.S. Environmental Protection Agency,¹¹⁷ the Ninth Circuit rejected a water district's claim that EPA's FIP, which required a 90 percent reduction in emissions from the Navajo Generating Station, was arbitrary and capricious. EPA established the stringent standards in the FIP based on a finding that the visibility impairment problem at the Grand Canyon was "reasonably attributable" to the emissions coming from the Navajo Generating Station.¹¹⁸ The Ninth Circuit interpreted "reasonably attributable" broadly, and rejected the argument that EPA is limited to addressing visibility impairment caused by a noticeable plume that is directly traceable to a given source through the use of visual observation or simple monitoring techniques. The Court further found that becasue EPA had followed the required procedures and had been forced to implement a FIP due to Arizona's failure to revise its SIP, it had acted within its authority under the CAA.

n117 990 F.2d 1531, 23 ELR 20678.

Conclusion

The ability of tribes to effectively regulate stationary sources of emissions on or off reservation lands is constrained both by practical considerations and existing case law. Tribes generally have the authority to regulate stationary sources on reservation trust lands within the boundaries of the reservation. Conflict exists between the common law and EPA's proposed rule as to fee lands. Common law holds that tribes generally do not have the authority to regulate a source on fee lands, while EPA's proposed rule would allow tribal regulation on all lands within the reservation boundaries. The majority of existing case law suggests that fee lands will be under state jurisdiction unless congressional delegation or consent by the nonmember suggest that it would be appropriate for the tribe to retain control.

Conversely, under EPA's proposed rule, tribes that have demonstrated adequate resources to operate a Title V permitting program, thereby receiving treatment as a state, would have only limited power to affect the behavior of a stationary source off the reservation,even if that source was adversely affecting reservation lands. Tribes may participate in the PSD program to protect air that is cleaner than the NAAQS, but this program has failed to provide sufficient protections in practice. Tribes may also commence civil suits under § 304, however, existing precedent offers little encouragement for success. Finally, tribes may petition under § 126 or Title V for EPA to find and enforce a violation, but it remains EPA's decision to acknowledge a violation and compel a remedy.

The case law regarding interstate enforcement also reveals the limits of existing enforcement mechanisms. The Sixth Circuit has suggested that the problem of interstate air pollution might require a regional regulatory scheme rather than reliance on state or tribal boundaries as the units for pollution control.¹¹⁹ A regional scheme might be a workable solution when neighboring states and tribes are working toward regional pollution control. Given Supreme Court precedent, judicial determinations of primacy will likely continue to promote a checkerboard pattern of regulation between tribes and states with inevitable conflict, despite EPA's proposed system. Moreover, the application of federal environmental statutes to tribes and the interstate enforcement concerns that result from tribes being treated as sovereigns or states are giving rise to a growing number of questions. If a tribe is to be treated as a state, then it is subject to the federal environmental laws as are states. The emerging view is that tribes enjoy a "limited sovereignty", whereby they retain all their original national rights other than those that acts of Congress have specifically restricted or taken away.¹²⁰ Courts have distilled these remaining inherent tribal rights as being those necessary for tribal self-governance and regulation of the internal relations of the tribe. In effect, this means "treatment as a state" will provide tribes with the most meaningful enforcement authorities under the CAA.

Notwithstanding all of the above, there is some indication that courts may be moving in the direction of strengthened interstate enforcement, however, this movement seems somewhat reluctant. Regardless, if EPA's proposed rule becomes final, questions will undoubtedly arise as to how courts will interpret the rule in light of its arguable conflict with Brendale and Bourland. Until courts resolve those questions, tribes that opt to exercise their authority will be forced to do so with uncertainty as to how far that authority extends.

1. Clean Air Act, 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618.

2. Indian Tribes: Air Quality Planning and Management, 59 Fed. Reg. 43956 (Aug. 25, 1994) (to be codified at 40 C.F.R. pts. 35, 49, 50, and 81) (proposed Aug. 15, 1994).

3. Id.

4. Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136-136y, § 136u, ELR STAT. FIFRA §§ 7-31, § 2u; Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387, § 1377(e), ELR STAT. FWPCA §§ 101-607, § 518(e); Safe Drinking Water Act, 42 U.S.C. §§ 300f-300j-26, § 300h-1(e), § 300j-11, ELR STAT. SDWA §§ 1401-1465, § 1422(e), § 1451; Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675, § 9626, ELR STAT. CERCLA §§ 101-405, § 126.

5. 42 U.S.C. § 7601(d)(2), ELR STAT. CAA § 301(d)(2).

6. Id. § 7410(a)(2)(D), § 7426(C), ELR STAT. CAA § 110(a)(2)(D), § 126(c).

7. Id.

8. Id. §§ 7470-7479, ELR STAT. CAA §§ 160-169.

9. Id. § 7475(d)(2)(B), ELR STAT. CAA § 165(d)(2)(B). See also Alan P. Loeb & Tiffany J. Elliott, PSD Constraints on Utility Planning: A Review of Recent Visibility Litigation, 34 NAT. RESOURCES J. 231-70 (Spring 1994).

10. 42 U.S.C. §§ 7491-7492, ELR STAT. CAA §§ 169A-169B.

11. In determining best available retrofit technology the State . . . shall take into consideration the costs of compliance, the energy and nonair quality environmental impacts of compliance, any existing pollution technology in use at the source, the remaining life of the source, and the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology; . . .

Id. § 7491(g)(2), ELR STAT. CAA § 169A(g)(2).

12. Four tribes that have redesignated their reservation lands include three tribes in Montana: the Northern Cheyenne Tribe, the Confederated Salish and Kootenai Tribes of the Flathead Reservation, and the Fort Peck Tribe; and a Chippewa Tribe from Minnesota. A recent survey that the National Tribal Environmental Council distributed revealed that out of 149 responding tribes, only 14 reported having ambient air quality control programs in place. NATIONAL TRIBAL ENVTL. COUNCIL, NAT'L ENVTL. REP. (1994).

13. See infra text accompanying notes 25 and 76-79 for a further discussion of Nance.

14. Telephone Interview with Virginia Griffing, Attorney in Legal Department of Confederated Salish and Kootenai Tribes of Flathead Reservation (July 5, 1995).

15. Letter from Tommy Thompson, Governor of Wisconsin, and John Engler, Governor of Michigan, to Carol Browner, EPA Administrator (June 8, 1995) (on filewith authors) [hereinafter Potawatomi letter].

16. Notice of Redesignation, 60 FR 33779 (Jan. 29, 1995).

17. Potawatomi letter, supra note 15.

18. Telephone Interview with Donna Isaac, Salt River Indian Community, Arizona (Aug. 31, 1995).

19. 42 U.S.C. § 7474(c), (e), ELR STAT. CAA § 164(c), (e).

20. AMERICAN INDIAN LAW DESKBOOK 46 (Julie Wrend et al. eds., 1993 & Supp. 1994).

21. See United States v. Celestine, 215 U.S. 278 (1909), where the Court found that the term "reservation" describes a tract that Congress had reserved from sale, and held that all tracts within the boundaries of a reservation remain a part of the reservation until Congress separates them. The Court concluded that the issuance of a patent-in-fee to a tribal member did not, absent congressional intent to the contrary, sever the allotted parcel from the reservation.

22. AMERICAN INDIAN LAW DESKBOOK, supra note 20, at 47.

23. Id.

24. The Indian Reorganization Act prohibited further allotment of reservation lands and extended indefinitely existing trust periods as to allotments for which the United States had not issued fee patents. Indian Reorganization Act of 1934, ch. 576, 48 Stat. 984 (codified as amended at 25 U.S.C. §§ 461-479 (1988)).

25. Nance v. U.S. Environmental Protection Agency, 645 F.2d 701, 11 ELR 20526 (9th Cir. 1981), cert. denied, 454 U.S. 1081 (1981). See infra text accompanying notes 76-79 for a further discussion of Nance.

26. United States v. Wheeler, 435 U.S. 313, 322 (1978).

27. New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983).

28. Id. at 344.

29. 450 U.S. 544 (1981).

30. Id. at 565-66.

31. Id.

32. See, e.g., Cardin v. De La Cruz, 671 F.2d 363 (9th Cir. 1982) (holding tribe may enforce health regulations on nonmember-owned grocery store that had dangerous and unsanitary conditions), cert. denied, 459 U.S. 967 (1982).

33. 492 U.S. 408, 429 (1989).

34. Yakima Indian Nation v. Whiteside, 617 F. Supp. 735 (E.D. Wash. 1985).

35. Id.

36. Confederated Tribes and Bands of the Yakima Indian Nation v. Whiteside, 828 F.2d 529 (9th Cir. 1987).

37. Brendale, 492 U.S. at 430.

38. Id. For example, a tribe might use the second Montana exception in a zoning action where a proposed emission source siting in a checkerboarded area of land could endanger the health and welfare of the tribe. In order to prevail, the tribe would have to establish more than just an adverse impact on the tribe. The danger that the site presents "must be demonstrably serious and must imperil the political integrity, the economic security, or the health and welfare of the tribe." Id. at 431. The action will be strongest if the source site is in an area dominated by trust lands that have particular cultural significance to the tribe.

39. 113 S. Ct. 2309, 23 ELR 20972 (1993).

40. Pub. L. No. 83-776,. 68 Stat. 1191 (1954). See also AMERICAN INDIAN LAW DESKBOOK, supra note 20, at 11-13.

41. Pub. L. No. 78-534, 58 Stat. 887 (1944). The Act gave nonmembers reservation lands so they could construct the Oahe dam and reservoir.

42. Bourland, 113 S. Ct. at 2316, 23 ELR at 20974.

43. Id. It might be argued that the CAA is such a congressional delegation of authority to tribes. Questions may arise as to whether this general delegation of jurisdictional authority overrides earlier express delineations of jurisdictional boundaries. See, e.g., Pub. L. No. 83-280, which transferred criminal and some civil jurisdiction over Native American lands to six states and authorized other states to assume such jurisdiction at their option, but only with tribal consent after 1968. Act of Aug. 15, 1953, ch. 505, Pub. L. No. 83-280, 67 Stat. 588 (codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321-1325, and 28 U.S.C. § 1360 (1988).

44. AMERICAN INDIAN LAW DESKBOOK, supra note 20, at 267.

45. If a tribe enacts a Title V program, the requirement that emitting sources comply with the tribal permitting program might constitute consent by those sources. Even if those sources are on fee lands, a tribe might acquire regulatory authority over them based on this consent through compliance with the Title V program.

46. AMERICAN INDIAN LAW DESKBOOK, supra note 20, at 109.

47. See Puyallup Tribe v. Washington Dep't of Game, 433 U.S. 165, 7 ELR 20558 (1971).

48. See Rice v. Rehner, 463 U.S. 713 (1983).

49. See New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983).

50. 42 U.S.C. § 7661a(b), ELR STAT. CAA § 502(b); Timothy L. Williamson, A Review of Major Provisions: Fitting Title V Into the Clean Air Act: Implementing the New Operating Permit Program, 21 ENVTL. L. 2085, 2088 (1991).

51. 42 U.S.C. § 7661a(b), ELR STAT. CAA § 502(b). See also Maria Farinella. The Clean Air Act of 1990: Title V's Operating Permit Provision for Citizen Access to State Court Judicial Review, 8 ADMIN. L.J. AM. U. 67, 71 (Spring 1994).

52. 42 U.S.C. § 7661a(d)(1), ELR STAT. CAA § 502(d)(1).

53. Farinella, supra note 51, at 72.

54. 42 U.S.C. § 7661a-f, ELR STAT. CAA §§ 502-507.

55. Telephone Interview with David Kelly, Environmental Specialist Three, Navajo Air Quality Control Program, Navajo Environmental Protection Agency (Aug. 14, 1995).

56. Id.

57. Id.

58. Julie M. Reding, Controlling Blue Skies in Indian Country: Who Is the Air Quality Posse—Tribes or States? The Applicability of the Clean Air Act in Indian Country and on Oklahoma Tribal Lands, 18 AM. INDIAN L. REV. 161, 166 (1993).

59. 42 U.S.C. § 7601(d)(2), ELR STAT. CAA § 301(d)(2).

60. Indian Tribes: Air Quality Planning and Management, supra note 2.

61. Id. at 43965.

62. 42 U.S.C. § 7601(d)(2), ELR STAT. CAA § 301(d)(2).

63. Telephone Interview with Virginia Griffing, supra note 14.

64. Id.

65. 42 U.S.C. § 7416, ELR STAT. CAA § 116; Indian Tribes: Air Quality Planning and Management, supra note 2, at 43967.

66. See, e.g., 42 U.S.C. § 7543, ELR STAT. CAA § 209, which limits states' authority to adopt and enforce emission standards for new motor vehicles.

67. Indian Tribes: Air Quality Planning and Management, supra note 2, at 43958-60.

68. AMERICAN INDIAN LAW DESKBOOK, supra note 20, Supp. at 31.

69. 42 U.S.C. § 7604, ELR STAT. CAA § 304.

70. Id. § 7426, ELR STAT. CAA § 126.

71. Id. § 7661d, ELR STAT. CAA § 505.

72. Federal regulations define "significant" as any emissions rate or any net emissions increase associated with a major stationary source or a major modification that the source would construct within 10 km of a Class I area and would have an impact on that area equal to or greater than 1% g/m³ (24 hour average). 40 C.F.R. § 51.166(b)(23)(iii) (1994).

73. Kay M. Crider, Interstate Air Pollution: Over a Decade of Ineffective Regulation, 64 CHI.-KENT. L. REV. 619, 629 (1988).

74. A "non-major emitting facility" is any listed stationary source that has the potential to emit less than 100 tons annually of any air pollutant, or any nonlisted stationary source that has the potential to emit less than 250 tons annually of any air pollutant. 42 U.S.C. § 7479(1), ELR STAT. CAA § 169(1).

75. But states must have some legally enforceable procedure for pre-construction review of minor sources to ensure that they will not interfere with attainment or maintenance of the NAAQS. See 40 C.F.R. § 51.160 (1994).

76. Nance v. U.S. Environmental Protection Agency, 645 F.2d 701, 11 ELR 20526 (9th Cir. 1981), cert. denied, 454 U.S. 1081 (1981).

77. "It is undisputed that under the regulations in effect at the time the redesignation was proposed, only 19 sources of pollution were subject to permit procedures, and that these sources did not include strip mines." Id. at 706, 11 ELR at 20527.

78. Id. at 715, 11 ELR at 20532 (citations omitted).

79. Id. at 714, 11 ELR at 20531.

80. 42 U.S.C. § 7604(a)(1), ELR STAT. CAA § 304(a)(1).

81. Id. § 7604(a)(1), (3), ELR STAT. CAA § 304(a)(1), (3).

82. Id. § 7604(a), (d), ELR STAT. CAA § 304(a), (d).

83. Id. § 7426(b), ELR STAT. CAA § 126(b).

84. Id. § 7426, ELR STAT. CAA § 126.

85. Id. § 7410(a)(2)(D)(i)(I), ELR STAT. CAA § 110(a)(2)(D)(i)(I).

86. Id. § 7426(a), ELR STAT. CAA § 126(a).

87. Indian Tribes: Air Quality Planning and Management, supra note 2, at 43964.

88. 42 U.S.C. § 7426(c), ELR STAT. CAA § 126(c), referring to Id. § 7410(a)(2)(D)(i)(II), ELR STAT. CAA § 110(a)(2)(D)(i)(II).

89. Each implementation plan submitted by a State under this chapter. . . shall . . . contain adequate provisions—(i) prohibiting, consistent with the provisions of this subchapter, any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will—(I) contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any such national primary or secondary ambient air quality standard, or (II) interfere with measures required to be included in the applicable implementation plan for any other State under part C of this subchapter to prevent significant deterioration of air quality or to protect visibility.

Id. § 7401(a)(2)(D)(i), ELR STAT. CAA § 110(a)(2)(D)(i).

Notwithstanding any permit which may have been granted by the State in which the source is located (or intends to locate), it shall be a violation of this section and the applicable implementation plan in such State—(1) for any major proposed new (or modified) source. . . to be constructed or to operate in violation of the prohibition of § 7401(a)(2)(D)(ii) of this title or subsection, or (2) for any major existing source to operate more than three months after such finding has been made with respect to it.

Id. § 7426(c), ELR STATE. CAA § 126(c).

90. 636 F.2d 323, 10 ELR 20001 (D.C. Cir. 1979).

91. Id.

92. 696 F.2d 147, 13 ELR 20135 (2d Cir. 1982).

93. Connecticut v. Environmental Protection Agency, 656 F.2d 902, 907, 11 ELR 20924, 20928 (2d Cir. 1981).

94. Id.

95. Id. at 905, 11 ELR at 20925.

96. 739 F.2d 1071, 14 ELR 20573 (6th Cir. 1984).

97. Id. at 1090, 14 ELR at 20582.

98. Id. at 1091, 14 ELR at 20583.

99. Id. at 1093, 14 ELR at 20583.

100. Id.

101. 42 U.S.C. § 7661d(a)(2), ELR STAT. CAA § 505(a)(2),

102. Id.

104. CAA § 505(b()2) provides that a citizen suit "petition shall be based only on objections to the permit that were raised with reasonable specificity during the public comment period . . . unless the petitioner demonstrates . . . that it was impracticable to raise such objections. . . ." Id. § 7661d(b((2), ELR STAT CAA § 505(b)(2).

105. Id.

106. Id.

107. 33 U.S.C. §§ 1251-1387, ELR STAT FWPCA §§ 101-607. The FWPCA and the CAA have many significant similarities, including their provisions for Native American tribes. Where slight differences between the Acts might result in differing decisions, it will be noted.

108. International Paper Co. v. Oullette, 479 U.S. 481, 17 ELR 20327 (1987).

109. Id. at 490-91, 17 ELR at 20329.