The Oklahoma Bar Journal May 2024

government – typically the Environmental Protection Agency (EPA) – is the default regulator that administers the federal statute and its implementing regulations. The statutes contain an option for states to apply for and receive approval to develop and implement their own environmental regulatory programs. State programs must meet the minimum standards set forth in the federal statute but can impose more stringent regulations if desired. A state that assumes the role of primary regulator “is said to have achieved ‘primacy.’” 12 The first iterations of these stat utes did not address their appli cation in Indian Country, nor did they contain an option for tribes to

assume the role of primary regula tor as they did for states. This omis sion prompted litigants to initially challenge the authority of the EPA to enforce environmental statutes in Indian Country. For example, the Safe Drinking Water Act (SDWA), which “establishes a regulatory mechanism to insure the quality of publicly supplied drinking water [and] ... a regulatory program designed to prevent the endanger ment of underground drinking water sources[,] ... did not expressly address the questions of Indian lands or Indian sovereignty” when it was first enacted. 13 In Phillips Petroleum Company v. United States Environmental Protection Agency , Phillips Petroleum argued that this

laws that “established the ground rules for national environmental protection efforts.” 7 For exam ple, the National Environmental Policy Act (NEPA) required federal agencies to evaluate the environ mental effects of their actions. 8 The Endangered Species Act prohibited actions that jeopardized threat ened and endangered species. 9 The Clean Air Act and Clean Water Act placed limits on air, water and other pollutants. 10 And the Resource Conservation and Recovery Act regulated the dis posal of hazardous wastes. 11 These statutes all have a similar framework. They establish mini mum standards for the protection of the environment. The federal

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.

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THE OKLAHOMA BAR JOURNAL