Environmental

New Scholarship on Tribal Sovereignty and Pesticide Programs

Matthew L.M. Fletcher

Jane Kloeckner has posted her paper, “Hold on to Tribal Sovereignty: Establishing Tribal Pesticide Programs that Recognize Inherent Tribal Authority and Promote Federal/Tribal Partnerships,” on SSRN.

Here is the abstract:

The partnership between the United States and Indian Nations (tribes) in regulating pesticide pollution in Indian country and governed under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA or Pesticide Law) has become dysfunctional due to weak provisions in FIFRA and pesticide regulations and guidance from the United States Environmental Protection Agency (EPA), the federal agency authorized to implement FIFIA. The tribal/federal partnership under FIFRA is overwhelmingly federal, while the role for tribal governments is limited. In addition, long-standing EPA policy choices have resulted in inadequate environmental protection against potential misuse of pesticides in Indian country. For example, EPA has not interpreted FIFRA as authorizing Tribal governments to be the primary enforcement authority. Except for eight Indian reservations, pesticide applicators cannot be certified in Indian country to apply restricted use pesticides. Tribal governments should be eligible to implement pesticide control programs as co-regulators in partnership with EPA. Co-regulator pesticide programs would be a good example of United States leadership in collaborative partnering with indigenous peoples for the broader international community.

The FIFRA reforms suggested in this paper recognize the appropriate level of federal oversight of tribal environmental decisions affecting land use involving pesticides, a local decision with regional, national and international aspects. For example, Tribal Pesticide Programs would function best within the structure of a genuine tribal/federal partnership as described in this paper. As a foundation for a collaborative partnership, EPA should provide for tribal governments to be eligible for primary enforcement under FIFRA in Indian country. Also, EPA should provide continuing federal assistance, technical, administrative, and financial to tribal governments for building and maintaining tribal pesticide programs as tribal institutions. Furthermore, the co-regulator partnership must be flexible and ultimately, the federal government must oversee the tribal pesticide programs because of the complexities of tribal governance over tribal environmental institutions and because local, state, regional, tribal and international concerns over pesticide use sometimes conflict. Inside or outside Indian country, FIFRA and its regulations must support minimum federal standards that protect human health and the environment and a level playing field for pesticide users. Continue reading →

Chickaloon Invites United Nations to Investigate Water Pollution

Matthew L.M. Fletcher2 Comments

Here is the press release: Press release chickaloon communication

An excerpt:

Chickaloon Native Village, a federally-recognized Athabascan Indian Tribal government in Alaska, filed a communication to the United Nations Independent Expert on the human right to water and sanitation in conjunction with her first official visit to the United States, which began today.

Chickaloon Village’s submission asserts that the new open-pit coal strip mine in its traditional territory proposed by the Usibelli Corporation would contaminate local drinking water sources as well as rivers, streams and groundwater that support salmon, moose and other animals and plants vital for subsistence, religious and cultural practices. The US Federal Government and the State of Alaska have, to date, not responded to Chickaloon’s firmly-stated opposition to the mine.

The visit to the US by the Independent Expert, Mrs. Catarina de Albuquerque, a Portuguese human rights expert appointed by the UN Human Rights Council, includes stops in Washington DC, Boston Massachusetts and Northern California, where she will meet with the Winnemem Wintu and other Indigenous representatives. Her US visit will end on March 2, 2011.

During her visit she will meet with the US State Department and relevant Federal agencies as well organizations, communities and experts to receive information regarding the human right to water and sanitation and the federal and state policies and practices that affect this right. She is expected to make recommendations to the US government at the conclusion of her visit.

Pace Environmental Law Review Symposium on Indigenous Rights

Kate Fort

Tribal-State Relations
John Dieffenbacher-Krall
PDF

American Indian Travel Stipends to the upcoming ABA Environmental Conference

Matthew L.M. Fletcher1 Comment

On March 17-19, 2011, the Section on Environmental, Energy, and Resources (SEER) will hold its 40th Annual Conference on Environmental Law in Salt Lake City, Utah. The Native American Resources Committee, in partnership with the Section’s Special Committee on Project Funding, is particularly pleased to announce the availability of several American Indian Travel Stipends for the Conference, which can be used to help reimburse attendees for their tuition, travel, and hotel costs. This Conference continues to be one of the best and most important professional gatherings for environmental law practitioners, including academics, nonprofit lawyers, in-house counsel, and government lawyers. Topics will include, but not be limited to challenges to implementation of climate change regulations, fallout from the Gulf Oil Spill including unique considerations for impacted tribes, and issues raised by off-shore wind projects. Besides three days of cutting-edge plenary and breakout sessions packed with expert panels and speakers, there will be an abundance of networking opportunities, along with public service activities and fabulous skiing nearby. The Conference brochure is available at:

http://www2.americanbar.org/calendar/40th-annual-conference-on-environmental-law/Pages/default.aspx

Targeted applicants for these stipends are reservation-based and other Indian law attorneys who are interested in attending and learning more about Section membership, but who are not able to do so without financial assistance. Applicants do not need to be members of the ABA to apply. If you are interested in applying for one of the American Indian Travel Stipends, it’s easy–just send an e-mail of interest, including your background information, to: Kimberly Craven, Membership Vice Chair, Native American Resources Committee, at Kimberly.Craven@nrel.gov. The deadline for applying is COB Monday, February 21, 2011.

Ecuadorean Judge Orders Chevron to Pay $9B in Damages for Polluting Lands of Indigenous Peoples

Matthew L.M. Fletcher1 Comment

Here is the permalink to the NYTs article.

An excerpt:

a judge in a tiny courtroom in the Ecuadorean Amazon ruled Monday that the oil giant Chevron was responsible for polluting remote tracts of Ecuadorean jungle and ordered the company to pay more than $9 billion in damages, one of the largest environmental awards ever.

The decision by Judge Nicolás Zambrano in Lago Agrio, a town founded as an oil camp in the 1960s, immediately opened a contentious new stage of appeals in a legal battle that has dragged on in courts in Ecuador and the United States for 17 years, pitting forest tribes and villagers against one of the largest American corporations.

The award against Chevron “is one of the largest judgments ever imposed for environmental contamination in any court,” said David M. Uhlmann, an expert in environmental law at the University of Michigan. “It falls well short of the $20 billion that BP has agreed to pay to compensate victims of the gulf oil spill but is a landmark decision nonetheless. Whether any portion of the claims will be paid by Chevron is less clear.”

Both sides said they would appeal the ruling, setting the stage for months and potentially years more of legal wrangling in the closely watched case, which has already been marked by claims of industrial espionage and fraud, and remarkably bitter disputes among the various lawyers involved. Legal experts said that the size of the award and the attention the case has focused on environmental degradation were likely to encourage similar suits.

The 188-page ruling found Chevron responsible for damages of about $8.6 billion, and perhaps double that amount if Chevron fails to publicly apologize for its actions within 15 days. The judge also ordered Chevron to pay $860 million, or 10 percent of the damages, to the Amazon Defense Coalition, the group formed to represent the plaintiffs.

 

 

Note on Inuits and Climate Change Published in Southeastern Environmental Law Journal

Ann Tweedy

Katherine King’s Note examining differing Inuit perspectives on climate change and the regulatory implications of these differing perspectives has been published. The article is called “Climate change and the Inuit: a melting of actions into a cloudy mess” and can be found at 17 Southeastern Envtl. L.J. 481 (2009).

D.C. Circuit Refuses to Allow Judicial Review of Government Decision Not to Remediate Uranium Contamination

Matthew L.M. Fletcher1 Comment

Here is the opinion in El Paso Natural Gas Co. v. United States.

Excerpts:

This case concerns two sites on Navajo tribal lands that the Navajo Nation alleges were contaminated by World War II and Cold War era uranium mining. Pursuant to the Uranium Mill Tailings Remediation and Control Act (UMTRCA), which created a mechanism to cleanup after such activities,  the Navajo Nation asked the Department of Energy to remediate both sites. The department refused, and the district court declined to review that decision, relying on a provision of UMTRCA stating that “designations made, and priorities established, by the Secretary under this section shall be final and not subject to judicial review.” For the reasons set forth in this opinion, we affirm.

And:

Finally, we address two concerns raised at oral argument by counsel for the Navajo Nation. First, he urged us to employ the canon of statutory  interpretation directing courts to liberally construe statutes in favor of Native Americans.Recording of Oral Arg. at 15:48–16:10; Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985). This canon, however, has force only where a statute is ambiguous,  id.;Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439, 1444–45(D.C. Cir. 1988), and as we have explained, section 7912(d), read in light of UMTRCA’s other provisions, is unambiguous.In addition, even were section 7912(d) ambiguous, the presumption applies only to statutes “passed for the benefit of dependent Indian tribes.” Alaska Pac. Fisheries Co. v. United States, 248 U.S. 78, 89 (1918) (interpreting the scope of land included in a reservation created by congressional act); see also San Manuel Indian Bingo & Casino v. NLRB, 475 F.3d 1306, 1312 (D.C. Cir. 2007) (noting that “[w]e have found no case in which the Supreme Court applied this principle of pro-Indian construction when resolving the ambiguity in a statute of general application.”). Here, UMTRCA’s statement of purpose reveals that Congress passed the statute to protect public health in general rather than tribal health in particular.See  § 7901(b) (“The purposes of this chapter are to . . . minimize or eliminate radiation health hazards to the public[.]”).

En Banc Ninth Circuit Panel Decides Important NEPA Intervention Case

Matthew L.M. Fletcher

Here is the opinion in Wilderness Society v. USFS.

And the tribal amicus brief: Tribal Amicus Brief

An excerpt:

Today we revisit our so-called  “federal defendant” rule, which categorically prohibits private parties and state and local governments from intervening of right on the merits of claims brought under the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321  et seq. Because the rule is at odds with the text of Federal Rule of Civil Procedure 24(a)(2) and the standards we apply in all other intervention of right cases, we abandon it here. When construing motions to intervene of right under Rule 24(a)(2), courts need no longer apply a categorical prohibition on intervention on the merits, or liability phase, of NEPA actions. To determine whether a putative intervenor demonstrates the “significantly protectable” interest necessary for intervention of right in a NEPA action, the operative inquiry should be, as in all cases, whether  “the interest is protectable under some law,” and whether “there is a relationship between the legally protected interest and the claims at issue.” Sierra Club v. EPA, 995 F.2d 1478, 1484 (9th Cir. 1993). Since the district court applied the “federal defendant” rule to prohibit intervention of right on the merits in this NEPA case, we reverse and remand so that it may reconsider the putative intervenors’ motion to intervene.

News Coverage of Proposal to Utilize Solar Energy as Indian Country Economic Development

Matthew L.M. Fletcher

Here is the article. And a link to the law review article here.

An excerpt:

There are many ironies in the history of relations between the United States and its indigenous peoples, but one in particular may be a telling illustration of the distribution of power.

Flip on a light switch in any of the great cities of the Southwest, such as Los Angeles, Las Vegas or Phoenix, and much of the time the energy that creates the light will be coming from one of four massive coal-burning electrical plants located on or a few miles from Navajo Nation land in Arizona and New Mexico.

The plants are critically important employers for members of the Navajo and Hopi tribes, about 40 percent of whom live below the poverty line.

The irony is that as many as 20,000 Navajo and Hopi families, surrounded on the south, east and west by power plants that deliver electricity to brightly lit cities hundreds of miles away, don’t have access to the electricity grid themselves.

Seven decades after the Tennessee Valley Authority brought electricity to the rural South, a significant population in the U.S. – estimated at 14 percent of Indian homes on U.S. reservations – has yet to experience a crucial advantage of 20th-century life.

Ryan Dreveskracht believes that solar power may be a way to change that.

 

OP/Ed on Asian Carp Debacle

Matthew L.M. Fletcher

An excerpt from the Traverse City Record Eagle:

It has become abundantly clear that until some kid with a fishing pole can stand on a breakwater in Frankfort and haul in a 100-pound Asian carp (or maybe get hauled in himself) the federal government will continue to deny the big fish have gotten into Lake Michigan.

That may be a bit of an exaggeration — they might cede the claim if some guy in a rowboat off Chicago hauls one in first — but the point is the same: Money trumps everything, including common sense, appeals to protect the environment, expert opinion and, of course, science.