Arizona Public Service Co. v. Environmental Protection Agency

No. 98-1196 (211 F.3d 1280, 50 ERC 1490) (D.C. Cir. May 5, 2000)

ELR Digest

The court holds that the U.S. Environmental Protection Agency's (EPA's) regulations implementing Clean Air Act (CAA) amendments properly delegated to Native American nations authority to regulate air quality on all land within reservations, including fee land held by private landowners who are not tribe members. The court first holds that EPA correctly interpreted the CAA amendments to constitute an express delegation of authority to Native American nations to regulate privately owned fee land located within a reservation. The CAA § 301(d)(2)(B) makes a clear distinction between areas within the exterior boundaries of the reservation and other areas within the tribe's jurisdiction. This distinction carries with it the implication that Congress considered areas within the exterior boundaries of a tribe's reservation to be per se within the tribe's jurisdiction. Further, accepting the challengers' interpretation of the CAA amendments would result in a checkerboard pattern of regulation within a reservation's boundaries that would be inconsistent with the purpose and provisions of the CAA. Moreover, the legislative history of the amendments supports EPA's interpretation. It shows that Congress moved from authorizing tribal regulation over areas within the tribal government's jurisdiction to a bifurcated classification of all areas within the exterior boundaries of the reservation and other areas within the tribe's jurisdiction, which strongly suggests that Congress viewed all areas within the exterior boundaries of the reservation to be within the area of the tribal government jurisdiction.

The court next holds that EPA properly interpreted reservation to include formal reservations, lands held in trust, and pueblos. The court further holds that EPA reasonably interpreted the extent of Native American authority to redesignate geographic areas and propose tribal implementation plans not just within the limits of reservations, but also within allotted lands and dependent communities so long as a tribe demonstrates inherent jurisdiction over nonreservation areas. The court additionally holds that the issue of the right of the public's opportunity to comment directly to EPA on competing claims over tribes' reservation boundary assertions is moot because EPA indicated its intent to clarify its position. The court next holds that the issue of whether EPA's regulations abrogate preexisting agreements by Native American nations not to regulate certain individual parties is not yet ripe for review because EPA has not issued any order relating to the preexisting covenants prohibiting regulation by Native American nations. The court finally holds that the CAA authorizes EPA to exempt tribes from the judicial review requirements in certain cases.

The full text of this opinion is available from ELR (22 pp., ELR Order No. L-218).

Counsel for Petitioner
Thomas S. Llewellyn, Ass't Attorney General
Attorney General's Office
1275 W. Washington St., Phoenix AZ 85007
(602) 542-4266

Counsel for Respondent
Thomas A. Lorenzen, Cynthia A. Drew
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[30 ELR 20565]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]