Sovereignty isn’t what’s on paper, it’s what flows through taps and rivers
America is slowly awakening to the dire state of tribal water and sewer systems. Access to drinking water and sanitation services are severely limited on many reservations, and where such systems exist, many are in poor shape. A couple years ago the first systematic study of Safe Drinking Water Act (SDWA) and Clean Water Act (CWA) implementation for tribal facilities yielded alarming results: tribal systems violated the SDWA 57% more and the CWA 23% more than similar non-tribal facilities. The disparities extended to enforcement, too: formal SDWA enforcement was 12% lower and CWA inspections 44% less frequent for tribal facilities. Evidence of systemic environmental injustice is seldom so glaring.
But there is hope. A new study offers promising evidence for a way to tackle the daunting challenge of tribal water systems. This time instead of comparing tribal and non-tribal systems, Mellie Haider and I looked at differences across tribal facilities to see whether regulatory institutions might hold the key to better environmental management in Indian Country. To understand why, we have to start with the foundations of federal environmental regulation and the peculiar legal status of Indian nations.
Environmental federalism & tribal governance
The landmark laws of the 1970s that form the core of American environmental protection (e.g., the Clean Air Act, Resource Conservation & Recovery Act, SDWA, CWA) were built with a system of federal-state cooperative implementation. Under these laws, the U.S. Environmental Protection Agency (EPA) sets rules, and states are responsible for implementation and enforcement of those rules for the facilities operating in their jurisdictions.
Thing is, tribes are sovereign nations under the U.S. Constitution, and so they—and, by extension, their water/sewer systems—are not subject to state laws. Oddly, the major environmental laws of the 1970s made no explicit provision for regulation of tribal facilities. As a result, tribal water and sewer systems operated in a regulatory vacuum well into the 1980s.
Introducing tribal primacy
Beginning in the Reagan Administration, a series of amendments and executive orders extended federal environmental laws to tribal lands and gave EPA direct implementation authority over them. Some tribal officials successfully lobbied Congress to treat tribes as states for regulatory purposes. With these new rules, tribes may apply to take primary implementation responsibility, or “primacy,” under federal environmental laws. Tribes applying for primacy authority must demonstrate to EPA that they have the administrative capacity to handle regulatory enforcement.
What difference would implementation primacy make to tribal environmental regulation?
On one hand, tribes might engage in a “race to the bottom,” loosening or neglecting environmental rules in order to avoid regulatory costs and improve economic output. But a race‐to‐the‐bottom logic makes little sense for American Indian tribes with respect to environmental regulation. Already occupying the proverbial “bottom,” tribes have little reason to shirk regulatory compliance in a race there.
On the other hand, tribal primacy might lead to more rigorous enforcement, as tribes seek to improve health while maintaining their traditions and cultures. Federal regulators have few political incentives for devoting scarce resources to enforcement on tribal land, especially when tribes may lack the political strength to demand strict enforcement. At the same time, many tribal governments serve sparsely populated communities under poor economic conditions, leaving tribes with limited access to the human and financial capital necessary to maintain compliance. Regulatory neglect might be the unfortunate (though understandable) result. Tribes with primacy have more control over their own environmental fates. Moreover, primacy can give tribes an important lever in their environmental conflicts with neighboring firms and jurisdictions.*
What difference does primacy make?To understand the impact of implementation primacy on tribal clean water enforcement, we analyzed CWA records for 474 tribal wastewater treatment plants in the United States from 2016-2019. About 15% of these facilities operate under tribal regulatory primacy; the rest are regulated directly by the EPA.** After adjusting for facility size, we found that facilities operated by tribes with primacy were inspected more than twice as often as those regulated by the EPA.†
The enforcement gap between tribal and EPA enforcement is greatest for smaller facilities and declines as facility size grows. Over our three-year period of analysis, a very small facility (design capacity 5,000 gallons per day) received an average of 2.75 more inspections under tribal primacy than under EPA oversight. At a moderately large facility (2.5 million GPD), the difference fell to just 0.24, statistically indistinguishable from zero.
The fact that the biggest differences are in the smallest systems underscores the impact of tribal primacy as an administrative phenomenon: it stands to reason that EPA officials spend their limited resources on larger tribal facilities. But in the water sector, the greatest environmental injustices are often in the smallest, most isolated communities. Our evidence shows that tribal primacy has its greatest impact in those small, isolated communities that are otherwise easily neglected.
Implementation authority over environmental regulation gives tribal governments effective sovereignty. Sovereignty turns from mere legal assertion to real, practical impact when tribal officials have greater control over their own destinies. Along with money for pipes and plants, efforts to improve tribal water systems must build human capital and organizational capacity to operate and regulate those facilities. Recognizing this reality, the EPA and the Indian Health Service, along with Indian organizations like Native American Water Association and Intertribal Council of Arizona, run programs aimed at building tribal capacity. In the long run, empowering and building tribal governance capacity offers perhaps the most promising avenue for improving the environment in Indian Country.
*In fact, we found that tribes with a history of frequent federal litigation were more likely to seek primacy. A history of litigation indicates tribal independence, nationalism, and other political factors related to assertions of sovereignty.
**At the time of our study, only one tribe (the Navajo Nation) held SDWA primacy, so we couldn’t analyze variation in drinking water regulation.
†Our analysis also adjusted for differences in the characteristics of tribes with and without primacy.
Public Administration Professionalism at the Flashpoint
Presidents issue orders, Congress passes laws, and courts make judgments, but immigration policy really succeeds or fails when bureaucrats interact with people seeking entry to the United States. Immigration policy is what happens when an ICE agent detains an individual (or doesn’t), separates children from parents (or doesn’t), and puts kids in cages (or doesn’t). Immigration policy is what happens when a DHS contractor attends to a wailing toddler, or leaves frightened children to their own devices in adherence to administrative guidelines. In the end, human rights are protected or violated not by politicians, but by the men and women who put regulations into action.
What drives bureaucratic behavior?
Although public attention tends to fixate on laws and rules when trying to understand public policy, decades of public administration research indicates that organizational norms and values determine what public servants do. Public employees from soldiers to teachers to police officers look to their peers for informal guidance on what is honorable, acceptable, or forbidden. Monitoring systems and the threat of disciplinary action turn out to be lousy predictors of public administrators’ actions. When bureaucrats enforce (or refuse to enforce) rules, it’s because their fellow bureaucrats sanction that behavior. Smart public agency leaders do not rely solely on orders, but rather seek to instill systems of ethics and build a sense of mission in their organizations.
Professionalization in public administration is an effort to enhance this kind of peer accountability by building loyalty to principles of public service. America’s military academies are excellent examples: they seek to build within officers not only respect for chain-of-command, but also a system of ethics that defines military professionalism. In the ideal, professions provide an “inner-check,” enforced by social approbation or disdain by fellow professionals, that guides individuals to uphold shared norms and resist unethical orders.
Administration at the border
The agencies at the flashpoint of America’s current immigration crisis give plenty of reason to worry. The main bureau charged with implementation of immigration laws is the Immigration and Customs Enforcement (ICE) agency, which was formed fifteen years ago when the US Customs Service (part of the Treasury Department) and Immigration and Naturalization Service (Justice Department) were consolidated within the new Department of Homeland Security as part of the post-9/11 reforms. Organizational culture and professionalization take time to develop, but this young agency has been charged with implementing some of the country’s most vexing and incendiary policies, even as its nascent culture is still forming. In early 2017 the Trump Administration ordered the hiring of 10,000 new ICE agents. Simply hiring and training that many people quickly is a daunting task; professionalizing and building a sense of mission in each new agent even more so. The Federal Bureau of Investigation (FBI) provides a useful contrast. ICE and FBI agents each receive 20 weeks of training upon entry into their agencies. But new FBI agents must also be accomplished college graduates, and upon appointment they enter a highly-professionalized agency with thousands of experienced agents, a storied history, and deep sense of organizational identity. It is not surprising that FBI officials have been more defiant, and ICE officials more acquiescent, in their relationships with the Trump White House.
DHS also relies heavily on private contractors to operate detention facilities, and some of the most troubling accounts of child migrant treatment emerge from these privately-operated facilities. If public administration professionalism implies loyalty to professional norms and ethics, then private contracting does just the opposite. A contractor’s livelihood depends upon satisfying a client (in this case, DHS executives), adhering to regulations, and fulfilling contracts. A contractor whose personnel refuse to treat migrant children as specified in a contract is likely to find that contract terminated.
Administrative evil and public professionalism
Governments can do great good and evil because bureaucratic agencies provide the capacity to put policy into action, as Guy Adams has observed. Administrative evil is not a consequence of inefficiency (the usual bureaucratic lament), but rather a result of a technical rationality that is the very hallmark of bureaucracy. Without professionalism, bureaucrats pass accountability for their actions to political superiors. Indeed, a naïve view of democratic accountability would demand dutiful compliance by ICE agents to orders (or tweets?) issued from above. Public service professionalism implies that a federal employee’s primary duty is to the public good, not to the whims of the person at the top of the organizational chart. Without a foundation of professional ethics and systems of accountability to professional peers, the rational administrator can find himself or herself participating in destructive acts.
So long as the United States has borders, it will need an agency to make those borders meaningful. But building a sense of professionalism and peer-accountability to ethical principles is crucial to ICE’s or any other border enforcement agency’s role in a democratic state. In 1952, political scientist Norton Long reflected on the lessons of the Second World War for American public administration:
It is a fortunate fact of our working constitution that it is complemented by a bureaucracy indoctrinated with the fundamental ideals of constitutionalism… In a real and important sense, it provides a constitutional check on both legislature and executive. It is no neutral instrument like the German bureaucracy, available to Nazi and democrat alike, pleading its orders from ‘die hohe Tiere’ as an excuse for criminal acts.
The decency of the agents charged with implementing public policy is a crucial check against government abuse. Professional public servants are the first line of defense and the last best hope for protecting human dignity in times of political turmoil.
One of my favorite things about growing up in Seattle was Seafair, an annual three-week festival, featuring hydroplane races, ethnic celebrations, beauty pageants, a Navy flotilla on Elliott Bay, and a wild nighttime torchlight parade.*
But for me, the best part of Seafair is the Blue Angels.
The Blue Angels is a demonstration squadron of fighter jets that performs aerobatic shows. They fly over Seattle for several days during Seafair, culminating in a magnificent performance over Lake Washington on the festival’s last day. The pilots execute graceful, death-defying stunts that amaze and astonish. Like thousands of other Seattle kids, I grew up fantasizing about flying a Navy jet on an aircraft carrier. For too many people in this world, the thunder of military jets connotes terror; I’m fortunate to associate that sound with exhilaration.
Thing is, the Blue Angels serve no tactical military purpose; the squadron’s $40 million annual budget and 7-pilot, 17-officer, 100-sailor team is an investment in brand-building. Brands are important sources of profit, and so naturally businesses invest heavily in their brands. But the US Navy isn’t supposed to generate profits, so what’s the point of the Blue Angels?
Why public agency brands matter
Public agencies have brand equity just like businesses do. Agency names, logos, songs, slogans, and other images carry positive or negative associations that make people more or less favorable toward the agency. For public managers, positive brand equity facilitates implementation in lots of ways.
Brand equity can strengthen or weaken morale. Agencies with strong brand equity have an easier time attracting talented employees—which is important because governments often cannot compete for the best employees on salary and benefits alone.
How many kids grew up wanting to be FBI agents after watching X-Files? Or wanting to be motorcycle cops because they liked Ponch and Jon on CHiPs?
Shrewd public managers know that brand equity is a political asset. A strong brand can buffer their organizations from politicians in times of crisis, and help build a coalition in support of expanded or enhanced authority. Leaders of agencies with strong brands can protect their “turf.” Citizens are more supportive of government programs when those programs are explicitly associated with favored agencies, too. My last post reported on a recent experiment that found that support for government management increased when associated with a specific agency’s name. Rhea Graham’s terrific response affirmed my sense that public managers think carefully about their agencies’ brands.
Implications for policy design
We typically think that assignment of implementation responsibility should follow capacity and competencies—that agencies with the necessary human capital and facilities should handle implementation. Brand equity introduces another dimension to the delegation decision. In some highly partisan contexts, it may make sense to assign implementation to multiple agencies in ways that align with their respective brand equity.
The findings in my recent study suggest that the US Army Corps of Engineers might make implementation of water policies easier in “Red” states than in “Blue” states. For the latter, the EPA probably might enjoy greater brand equity even if it lacks some of the USACE’s technical capacity. It’s an idea worth exploring.
*In the 1990s, organizers moved up the “torchlight” parade to daytime in response to worries about crime. Seafair Pirates and Clowns became much less… exuberant. The parade is now a pleasant but decidedly less bacchanalian affair.