Heather Williams and Hillary M. Hoffman have posted “Fracking Near Indian Country: The Federal Trust Relationship, Tribal Sovereignty, and the Right to Clean Water,” forthcoming in the Wyoming Law Review, on SSRN.

Here is the abstract:

The tortured history of the federal and state governments’ relationships with Native American tribes has created a legal structure in which Native American people are, quite frequently, the recipients of non-native waste generated off of native lands. Traditionally, this has taken the form of solid waste, but in recent years, it has grown to include nuclear waste and wastewater generated by hydraulic fracturing, otherwise known as “flowback fluids”, or “produced water.”

Over the last two years, produced water from four different hydraulic fracturing operations was found being discharged onto dry land and into “streambeds covered in white crystals,” on the Wind River Reservation in central Wyoming. In addition to the open dumping of these fluids, there was also visible oil and foam sheen. Pollution events like these are the result of a regulatory exemption under the Resource Conservation and Recovery Act (“RCRA”), commonly referred to as the “livestock loophole.” The livestock loophole, created in 1979, allows oil and gas operations to discharge hazardous waste fluids generated from fracking operations onto reservation land if they are consumed by livestock and wildlife, or used for agricultural purposes. The EPA, which regulates RCRA and has a fiduciary responsibility toward Indian Tribes, has not set maximum levels for many compounds used in the drilling process, and uses antiquated data to regulate toxics that have been capped. Further, industrial “trade secrets” prohibit the disclosure of additional toxics in drilling fluids under intellectual property laws, making it impossible to regulate pollution limits for surface waters under the Clean Water Act’s National Pollution Discharge Elimination System (NPDES).

The policy behind the livestock loophole is complex. Reports of gushing streams of toxic fracking fluids on reservation land reek of environmental injustice, yet tribes, as sovereign governments, are willing, able, and informed participants in the solicitation, installation, and placement of non-native waste on their own tribal lands.

Several questions arise out of the issues faced by the Wind River tribes: Is the federal policy to dump fracking fluids in Indian country consistent with its federal trust obligation, and its requirement under RCRA to protect human health and safety from toxic compounds? Is the livestock loophole’s policy to feed fracking fluids to livestock, wildlife, and agriculture a legitimate beneficial use under the Prior Appropriation doctrine? Should the EPA be forced to conduct up-to-date studies on the compounds in produced water, and their effects on living organisms, including humans? This Article will answer those questions and explore the bounds of tribal sovereignty and the federal trust responsibility in the context of produced water from fracking operations.