D.C. Circuit Strikes Down EPA’s Indian Country NSR as Applied to Oklahoma

Here is the opinion in Oklahoma Dept. of Environmental Quality v. EPA. An excerpt:

The Oklahoma Department of Environmental Quality petitions for review of a final rule promulgated by the Environmental Protection Agency establishing a federal implementation plan for the attainment of national air quality standards in “Indian country.” See Review of New Sources and Modifications in Indian Country, 76 Fed. Reg. 38,748 (2011) (codified at 40 C.F.R. pts. 49 and 51) (hereinafter Indian Country NSR Rule). Jurisdiction to implement the Clean Air Act lies initially in either a state or an Indian tribe. The EPA may in certain circumstances implement a federal program in Indian country, see 42 U.S.C. § 7601(d), but when it does so, in our view, it is subject to the same jurisdictional limitations as the tribe in whose shoes it stands. Because the EPA requires a tribe to show it has jurisdiction before regulating Indian country outside a reservation, yet made no demonstration of tribal jurisdiction before itself regulating those areas, we hold the agency was without authority  to displace Oklahoma’s state implementation plan in non-reservation Indian country. We therefore grant the petition for review and vacate the Indian Country NSR Rule with  respect to non-reservation lands.

Briefs are here.

D.C. Circuit Briefing Complete in Oklahoma DEQ v. EPA


Oklahoma DEQ Opening Brief

EPA Brief

Tribal Amicus

Osage Brief

Oklahoma Reply

UPDATE Dec. 2013 — Supplemental Briefs:

EPA Supplemental Brief

Tribal Supplemental Brief

I believe this is the rule being challenged:


Tribal Amicus Brief in Oklahoma DEQ v. EPA (D.C. Circuit) — Updated to Include Osage Brief


Tribal Amicus

Osage Brief

An excerpt:

In the 1990 amendments to the Clean Air Act, 42 U.S.C. §§ 7401-7671q (“CAA”), Congress recognized that tribal governments are the appropriate authorities to implement CAA programs in Indian country. In particular, Congress added the “treatment as a state” (“TAS”) provision in CAA § 301(d), 42 U.S.C. § 7601(d), allowing tribes to administer CAA programs in Indian country the same way states fulfill this function outside of Indian country. That provision gives the Environmental Protection Agency (“EPA”) discretion to determine how best to integrate tribes into the CAA framework. It also authorizes EPA to administer CAA programs in Indian country when tribes are unable to or otherwise do not do so. As this Court explained in Arizona Public Service Co. v. EPA, 211 F.3d 1280, 1284 (D.C. Cir. 2000), the TAS provision “constitute[s] an attempt by Congress to increase the role of native American nations in [the federal-state] partnership.”

Specifically, CAA § 301(d)(1)(A) provides that EPA “is authorized to treat Indian tribes as states under this chapter” and § 301(d)(2) asserts that EPA “shall promulgate regulations … specifying those provisions for which it is appropriate to treat Indian tribes as States,” under the conditions enumerated in § 301(d)(2)(A)-(C) (emphases added). At the same time, § 301(d)(4) provides that when “the Administrator determines that the treatment of Indian tribes as identical to States is inappropriate or administratively infeasible, the Administrator may provide, by regulation, other means by which the Administrator will directly administer such provisions” (emphasis added).
EPA implemented the TAS provision through the CAA Tribal Authority Rule (“TAR”), 40 C.F.R. §§ 49.1 – 49.22, which was upheld by this Court in Arizona Public Service Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000). Tribal participation under the rule is voluntary, in recognition of the limited resources of tribal governments, and EPA retains the ultimate responsibility to implement and enforce the CAA and to fill in the gap when tribes do not act. 63 Fed. Reg. 7254, 7263 (Feb. 12, 1998) (final TAR).

EPA already had federal regulations for some CAA programs when it promulgated the TAR.2 EPA recognized, however, that the lack of federal regulations for other CAA programs would result in a gap in CAA regulation in Indian country until tribes developed those programs for tribal lands. 63 Fed. Reg. at 7263. EPA noted in the TAR that it was revising the federal operating permit regulations, found at 40 C.F.R. Part 71, so that they would apply to Indian country as well as to states that lacked approved Title V operating permit programs. Id. EPA also stated its intent to develop the rule that Petitioner Oklahoma Department of Environmental Quality (“ODEQ”) is now challenging: “Review of New Sources and Modifications in Indian Country,” 76 Fed. Reg. 38748 (July 1, 2011) (“NSR Rule”). See 63 Fed. Reg. at 7263.

The NSR Rule applies to all areas of Indian country, as that term is defined in 18 U.S.C. § 1151. ODEQ challenges its application to “non-reservation” Indian country only. Pet. Br. at 11.

The EPA merits brief is here:

EPA Brief