Sovereignty, primacy & environmental protection
Policy Studies Journal, May 2020
Mellie Haider, Manuel P. Teodoro
The landmark American environmental laws of the 1970s originally made no mention of American Indian tribal lands, and subsequent research on environmental federalism has given them little attention. Since 1987, tribes have been eligible to assume implementation primacy under federal environmental law, similar to states. We analyze Clean Water Act (CWA) enforcement under American Indian tribal primacy compared with tribal facilities regulated directly by the U.S. government. To date, 62 tribal governments have been approved for implementation primacy under the CWA. The number and diversity of tribes operating regulated facilities provides uncommon leverage on key questions about environmental federalism. Do tribes that secure primacy enforce environmental rules more rigorously? Or does primacy allow tribes to shirk regulations in a race‐to‐the‐bottom? Analysis of CWA enforcement across 474 tribal wastewater facilities finds that, on average, enforcement increases significantly under tribal primacy. Our findings offer insights about environmental federalism, with important implications for environmental justice.
Tribes with implementation primacy… enforce federal environmental laws more rigorously—especially for smaller facilities that might otherwise be neglected under EPA administration.