The Oklahoma Bar Journal May 2024

N atural R esources L aw

Tribal Regulation of the Environment and Natural Resources Under Federal Environmental Laws By Conor P. Cleary

G OVERNMENTAL REGULATION OF THE ENVIRONMENT and natural resources traditionally has been described as one of “cooperative federalism.” 1 The federal gov ernment is the default administrator of federal environmental statutes like the Clean Air Act or Clean Water Act. But these statutes, and others like them, authorize states to step into the shoes of the federal regulatory agencies and assume responsibility for administer ing environmental laws. The federal government maintains a supervisory role to ensure the state meets the minimum standards of the federal environmental laws, but otherwise, the state is the primary regulatory sovereign. In this way, the federal and state governments work cooperatively to achieve the goals of federal environmental statutes.

tribes still have inherent authority to regulate some uses of natural resources in areas within their jurisdiction. 2 THE ENVIRONMENTAL MOVEMENT AND FEDERAL ENVIRONMENTAL LAWS Congress enacted most of the major environmental laws in the late 1960s and 1970s. Prior to that time, environmental law was a “highly decentralized system built on private law principles.” 3 “[T]he common law was the legal system’s primary vehicle for responding to

This model of federal-state cooperation, however, can obscure the role of a third sovereign with the power to regulate the environ ment and natural resources – tribal governments. As this article will explain, most federal environmen tal laws now contain provisions treating Indian tribes as states and authorizing tribes to be the primary regulators of the environ ment and natural resources within a tribe’s Indian Country. And even where an environmental law does not treat a tribe as a state or is ambiguous about its application,

environmental disputes[,] ... [relying] largely on doctrines of nuisance law to resolve these conflicts[.]” 4 By the early 1960s, however, an emerging “[a]wareness that pollut ants do not respect state, or even national boundaries, grew rap idly.” 5 Rachel Carson’s Silent Spring “began to shift public discourse about the environment ... and was a significant driver in the 1970 for mation of the U.S. Environmental Protection Agency.” 6 In the 1970s – known as the “environmental decade” – Congress passed several comprehensive federal environmental

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

18 | MAY 2024

THE OKLAHOMA BAR JOURNAL