James Grijalva has posted “Ending the Interminable Gap in Indian Country Water Quality Protection,” forthcoming in the Harvard Environmental Law Review, on SSRN.
Tribal self-determination in modern environmental law holds the tantalizing prospect of translating Indigenous environmental value judgments into legally enforceable requirements of federal regulatory programs. Congress authorized this approach three decades ago, but few tribes have sought primacy even for foundational programs like Clean Water Act water quality standards, contributing to potentially serious environmental injustices. This article analyzes in detail EPA’s recent attempt at reducing tribal barriers — reinterpreting the Act as a congressional delegation of tribal jurisdiction over non-Indians — and the early indications its results are insignificant. The article then proposes an unconventional solution ostensibly at odds with tribal self-determination: promulgation of national, federal water quality standards for Indian country. EPA’s Indian Program actually began this way, as an interim step awaiting tribes’ assumption of federal regulatory programs. Thirty years later, the seemingly interminable regulatory gap in Indian country water quality protection remains, and EPA has a legal and moral responsibility to close it.