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Environmental Justice in the Tribal Context: A Madness to EPA’s Method

 

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Abstract

Many American Indian tribes and their members are among those most burdened by mercury contamination. When the Environmental Protection Agency (EPA) set out to regulate mercury emissions from coal-fired utilities, it was aware that mercury contamination and regulation affects tribal rights and resources. EPA’s inquiry, therefore ought to have been differently framed, given tribes’ unique legal and political status. Specifically, EPA ought to have confronted squarely the impact of its decision on tribes’ fishing rights, rather than consider these rights as a mere afterthought. EPA’s process, too, should have been differently conducted. EPA should have consulted with tribes from the outset, in an effort to comprehend what was at stake from tribes’ perspectives. Although EPA purported to consider environmental justice as it developed its “Clean Air Mercury Rule,” it failed utterly. In this rulemaking, EPA perpetuated, rather than ameliorated, a long history of cultural discrimination against tribes and their members. This Article examines the missteps in EPA’s work with the mercury rule, in the hope that the lessons gleaned here might help EPA’s future efforts to consider and respond to environmental injustice in the tribal context. 

I. Introduction

The rivers flowing through the [Bad River] Reservation and Lake Superior itself are important spawning grounds for sturgeon, lake-run trout, and walleye as well as many other fish, which make up a significant subsistence resource for the 1,200 Tribal members living on the Reservation and in the surrounding area. However, Band members, like many other Americans, need to restrict their fish consumption to avoid mercury poisoning. . . . It is unacceptable to continue to let our children be exposed to such a dangerous toxin while partaking of a food source that tribal members have enjoyed for centuries; a food source that should be a healthy part of their diet.

Bad River Band of Lake Superior Tribe of Chippewa Indians[1]

Over the last several decades this toxic substance, mercury, has caused many human health and ecological problems for Indian people. . . . Mercury is known to seriously impact fish eating wildlife such as loons and mink. These animals are a value to the ecosystem they inhabit and they are clan symbols for Tribal members. If these animals are threatened, Tribal culture is threatened.

Minnesota Chippewa Tribe[2]

GLIFWC’s member tribes are particularly concerned about mercury contamination of ogaa (walleye), within the area ceded to the United States in treaties with the Chippewa dated July 29, 1837, and October 4, 1842. These treaties guaranteed to the Chippewa tribes certain hunting, fishing and gathering rights in the ceded territory. The purpose of this guarantee was to ensure that the tribes could continue their way of life to meet subsistence, economic, cultural, spiritual and medicinal needs. . . .

Fishing and fish consumption are central to Chippewa (or Anishinaabe) culture. The practice of harvesting, sharing, and consuming ogaa (walleye) is passed down from generation to generation. . . . While these practices preserve traditional Anishinaabe ‘lifeways,’ there is concern in tribal communities that methylmercury in ogaa may pose serious threats to the health of tribal members’ young and unborn children and therefore the continuation of these traditional lifeways.

Great Lakes Indian Fish and Wildlife Commission (GLIFWC)[3]

Although many of our Tribal members continue to fish and consume fish despite [Maine’s statewide] fish consumption advisory, there are many Tribal families that no longer engage in cultural practices associated with fishing, and are thus not passing these traditions to new generations of Tribal members. The loss of our cultural ceremonies, language, and songs associated with fishing represents a significant impact on our Tribe, and results in permanent loss of the culture which defines our Tribe.

Aroostook Band of Micmacs[4]

When the Environmental Protection Agency (EPA) announced its proposed rule for mercury emissions from coal-fired utilities,[5]tribe after tribe tried to impress upon EPA the multiple and profound impacts of mercury contamination from their perspectives. Tribe after tribe sought to move EPA to consider the children who would forever suffer neurological damage and other harms. Tribe after tribe came forward with data for EPA that described the particular circumstances relevant to members’ exposure.

And tribe after tribe took pains to remind EPA of its obligations under treaties and other laws, given tribes’ unique political and legal status.

The rulemaking process, however, revealed an agency intent on providing a reprieve from regulation to coal-fired utilities, despite what this commitment meant for the health and life prospects of millions of children. It showed an agency seemingly unconcerned with any legal obligations or executive commitments to the tribes, despite the hostility to American Indian peoples implicit in this stance. Ultimately, it resulted in a final rule, which EPA dubbed the “Clean Air Mercury Rule” (CAMR),[6]completely divorced from the relevant statutory directives under the Clean Air Act-a point underscored by the D.C. Circuit’s stern rebuke to EPA when it vacated the CAMR in New Jersey v. Environmental Protection Agency (New Jersey v. EPA) in February, 2008.[7]

Given the antipathy of the second Bush Administration to environmental regulation in general it is perhaps unsurprising that the EPA’s work on the CAMR is not a model for considering environmental justice in the tribal context. It is an understatement to say that the Bush EPA has been unsympathetic to calls for environmental justice, whether from tribes or other affected groups. Instead, the Bush EPA has flouted its obligations to protect human and environmental health at virtually every turn. Indeed, the Bush EPA has been particularly bold in its willingness to disregard its statutory and other legal commands, to the point that the courts-ordinarily deferential-have felt obligated to rein it in.[8]Thus, one can hope that we have witnessed a high water mark in terms of the agency’s disdain for its mission and indifference to those harmed by its decisions. And, happily, the D.C. Circuit’s result in New Jersey v. EPA means that the EPA must go back to the drawing board and produce a rule that is consistent with its legal obligations.[9]As such, some of the most glaring deficiencies in the CAMR will need to be remedied, with some of the dire impacts to tribes and their members ameliorated as a consequenc

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