OKLAHOMA CITY — Brushing aside objections from tribes, the Environmental Protection Agency has granted a request from Oklahoma Gov. Kevin Stitt to grant the state jurisdiction over environmental issues on Indigenous lands within the state.
In a letter dated Oct. 1, EPA Administrator Andrew Wheeler approved the request to allow the state to oversee more than 20 environmental programs on tribal lands, including ones dealing with hazardous waste, water and air quality, emissions standards, asbestos in school buildings and underground tank storage.
The decision does not extend to individual allotments or properties that are held in federal trust. It also specifically exempts injection wells in Osage County.
“EPA recognizes that typically, in the absence of express authorization from Congress, states do not have jurisdiction in Indian Country to implement regulatory programs under the federal governmental laws administered by EPA,” Wheeler wrote. “Therefore, EPA generally excludes Indian Country from its approvals of state environmental regulatory programs. However, where a federal statute expressly provides for state program administration in Indian Country, EPA must apply that law and approve a proper request for such state administration.”
The law making such a request possible was enacted 15 years ago. Oklahoma’s senior Senator, Jim Inhofe, authored an amendment to the Safe Accountable Flexible Efficient Transportation Equity Act of 2005 that included language allowing Oklahoma to request administrative authority for environmental programs serving Indian Country that would normally be under the federal government’s purview.
Prior to his career as a coal lobbyist, Wheeler was Inhofe’s chief counsel from 1995-1997 and the chief counsel for the Senate’s Environment and Public Works Committee when SAFETEA was adopted.
Stitt’s request, initially submitted in July, was made just days after the U.S. Supreme Court’s decision in McGirt v. Oklahoma, which held that the Muscogee (Creek) Nation’s reservation in eastern Oklahoma was never disestablished.
Although the McGirt decision was specifically applied to criminal jurisdiction within the Muscogee (Creek) Nation, questions still remain about the ruling’s implications, both with respect to other tribes’ reservation claims and non-criminal issues, including environmental regulations.
Despite the ongoing efforts to work out agreements, the Stitt administration made the request on the grounds it would provide a single set of environmental regulations for the entire state. In an emailed statement, a spokesman for Gov. Stitt’s office said the decision would maintain the status quo for the state’s environmental programs.
According to documents obtained by Southwest Ledger, the EPA sent letters to all 38 of Oklahoma’s federally recognized tribes on Aug. 25, offering a three-week window in September for tribal consultations and one month to provide written comments.
Unlike its counterparts at the Departments of Interior and Justice, which require at least 30 days’ notice, the EPA’s tribal consultation policy does not have a minimum advance notice requirement.
Thirteen tribes participated in a multi-tribe consultation session on Sept. 8. Additional one-on-one sessions were held Sept. 9-14 with the Cherokee, Choctaw, Chickasaw, Osage and Sac and Fox nations and the Ottawa Tribe, while a request for a similar session from the Pawnee Nation could not be accommodated before the EPA’s self-imposed deadline of Sept. 15 due to calendar conflicts.
An additional 12 tribes submitted written comments, including the Fort Sill Apache Tribe and the Wichita and Affiliated Tribes.
In a statement issued Monday, the Muscogee (Creek) Nation took exception not only to the EPA’s decision to grant the request, but at how fast it moved to make it happen. A spokesman for the Okmulgee-based tribe confirmed that the state did not reach out to discuss compacting or other alternatives prior to making the request to the EPA.
“The Muscogee (Creek) Nation is disappointed in the decision of the EPA to grant Governor Stitt’s request to administer environmental regulation in certain areas of Indian Country under the SAFETEA Act of 2005.
“Like the SAFETEA Act itself, this was a swift move meant to circumvent the appropriate time and available information to adequately respond. The Muscogee (Creek) Nation submitted a request for tribal consultation just two days after the Governor submitted his request. The MCN was granted two consultations, but it seems the concerns raised did not suffice. The MCN will continue seeking remedies to the situation.”