Agency Reverses Tribal Sovereignty Recognized in Recent Supreme Court Ruling
The Environmental Protection Agency has granted the state of Oklahoma regulatory control over environmental issues on nearly all tribal lands there, TYT has learned.
This strips from 38 tribes in Oklahoma their sovereignty over environmental issues. It also establishes a legal and administrative pathway to potential environmental abuses on tribal land, including dumping hazardous chemicals like cancer-causing PCBs and petroleum spills, with no legal recourse by the tribes, according to a former high-level official of the EPA.
This also includes hazardous chemicals that are byproducts of petroleum procurement and refining. In 2019, Oklahoma had the fourth largest petroleum industry in our country.
Oklahoma tribes said the agency’s decision was contrary to the principles EPA has applied since 1984.
TYT has obtained a copy of the letter EPA Administrator Andrew Wheeler sent to Gov. J. Kevin Stitt (R-Ok.) on Oct. 1. The end of the opening paragraph states simply, “EPA hereby approves Oklahoma’s request.”
TYT previously revealed that on July 22, Stitt requested control of environmental regulations on tribal land involving a wide range of issues. All of Stitt’s requests in his letter were granted by the EPA. They include:
- Hazardous waste dumping on tribal lands which could be any of the hundreds of hazardous chemicals listed by the EPA, including formaldehyde, mercury, lead, asbestos, toxic air pollutants, per- and polyfluoroalkyl substances (PFAS), pesticide chemicals, glyphosate and polychlorinated biphenyls (PCBs).
- Underground Injection Control, an EPA program used to permit fracking. Fracking uses large amounts of high-pressured water to remove oil and gas from shale rock. It is a contributor to climate change and is known to leave behind contaminated water and toxic pollution.
- Protecting large agricultural polluters in industrial-sized livestock operations, most often dairy cows, hogs or chickens. These mega-farms produce enormous amounts of waste, according to the Sierra Club, which estimates that “the quantity of urine and feces from even the smallest CAFO [Concentrated Animal Feeding Operation] is equivalent to the urine and feces produced by 16,000 humans.” In his letter, Wheeler acknowledges that the U.S. Supreme Court decision McGirt v. Oklahoma precipitated this EPA action. The McGirt ruling found that, by treaty, much of eastern Oklahoma is still Native American territory, which could mean under five tribes’ jurisdiction including for taxation and regulation. In anticipation of the decision, the Seminole tribe in 2018 issued an 8% tax on oil and gas wells on its reservation land.
The EPA has now granted the State of Oklahoma the same authority it had before McGirt on environmental issues, especially on petroleum. It can do this because federal legislation can nullify Supreme Court rulings. In 2005, a midnight rider attached to a transportation bill took away environmental regulatory control by Oklahoma tribes if requested by the state as it has now done. The Oklahoma state government is pro-fossil fuel and pro-big agribusiness.
Pro Fossil Fuel Interests
This return to previous pro-fossil fuel regulations may be one factor in the multi-billion dollar merger of Oklahoma’s Devon Energy with WPX Energy. As previously reported by TYT, the Petroleum Alliance of Oklahoma knew about Governor Stitt’s letter to the EPA on July 22, the day it was sent. This was close to one month before the tribal governments were told.
The EPA action infuriated Oklahoma’s Ponca Tribe. Casey Camp-Horinek, Environmental Ambassador & Elder & Hereditary Drumkeeper Ponca Tribe of Oklahoma, which provided the following statement:
“After over 500 years of oppression, lies, genocide, ecocide, and broken treaties, we should have expected the EPA ruling in favor of racist Governor Stitt of Oklahoma, yet it still stings. Under the Trump administration, destroying all environmental protection has been ramped up to give the fossil fuel industry life support as it takes its last dying breath. Who suffers the results? Everyone and everything! Who benefits? Trump and his cronies, climate change deniers like Governor Stitt, Senators Inhofe and Langford, who are financially supported by big oil and gas. I am convinced that we must fight back against this underhanded ruling. In the courts, on the frontlines and in the international courts, LIFE itself is at stake.”
TYT also obtained the EPA Summary Report sent Sept. 29 to Oklahoma’s tribes. In it, the EPA writes that the agency will keep Oklahoma’s environmental actions within federal law. But this is the same EPA that has rolled back 100 of the agency’s previous regulations protecting the environment and has pushed for a rule which would bar the agency from relying on scientific studies that have granted confidentiality to the people tested.
In a seminar Sept. 21 at the American Enterprise Institute, a conservative think-tank funded by fossil fuel companies, Wheeler concluded that he had fulfilled President Trump’s requests to him. Wheeler said, “[Trump] asked me to continue to clean up the air, continue to clean up the water and continue to deregulate and help create more jobs…”
The EPA not only granted all of Oklahoma’s requests, it added additional ones such as regulatory control over underground storage (the state has one of the largest oil storage facilities in the country), air pollution, pesticides, lead-based paints, and asbestos in schools.
The EPA Summary report says it consulted with 13 Oklahoma tribes in September. The report says that all the tribes questioned the limited consultation and short time of it, saying, “Comments submitted state that the length of the consultation period was too short, that the consultation should have been extended to tribes beyond Oklahoma…”
The EPA report also acknowledged that the Oklahoma tribes said the agency’s decision was contrary to the principles contained within the EPA Policy for the Administration of Environmental Programs on Indian Reservations (1984 Indian Policy). That policy requires a government-to-government negotiation.
The summary report concluded, “However, EPA is also bound to apply the clear and express mandate of Section 10211(a) of SAFETEA, a duly enacted Act of Congress, that specifically allows environmental regulation under EPA administered statutes by the State in areas of Indian country, and that requires EPA to approve a request of the State to so regulate notwithstanding any other provision of law…” Section 10211 (a), the federal law giving Oklahoma the legal right to take over environmental regulations on Tribal land, is a mere two-paragraph rider on page 795 of the 836-page SAFETEA transportation bill. In 2005, this midnight rider was maneuvered into this massive transportation bill by Sen. James Inhofe (R-Ok.). Inhofe is a staunch fossil fuel advocate and climate-change denier. EPA Administrator Andrew Wheeler worked for Inhofe for 14 years.
The former high-level official worked in the EPA’s office of general counsel. The former official told TYT, “EPA overstates when it claims ‘[t]he statute provides EPA no discretion to weigh additional factors in rendering its decision.’ The statute says that Oklahoma need not make any further demonstration of authority than it already did when it sought approval from EPA to administer the same programs elsewhere in the state. But the position EPA takes in the letter — that it lacks discretion entirely — departs from earlier statements made by EPA in Oklahoma Dept. of Environmental Quality v. EPA, where it interpreted SAETEA as still allowing it to attach conditions to its approval of Oklahoma programs implemented in Indian Country.”
Who will benefit from the state of Oklahoma taking over environmental regulations on tribal lands there? Fossil fuel companies, big agriculture, and livestock companies. This is based on what a former high-level EPA official said after reviewing Governor Stitt’s letter to the EPA requesting jurisdiction.
As for the future of Oklahoma’s environmental control, the EPA Summary Report includes one paragraph that suggests a pro-environment president and Congress could have impact, but only if new federal legislation is passed:
“EPA has found no evidence, nor has any been provided by tribes, that indicates section 10211 has sunset and is therefore no longer valid. Should Congress elect to repeal this provision after EPA approves the State’s request, EPA would address any effect on its approval of the State’s request at that time.”
U.S. Attorney General William Barr has now joined other Republican officials trying to nullify the McGirt v. Oklahoma ruling that much of the eastern portion of the state is tribal land. The Associated Press and a local Cherokee Radio station report that during a Sept. 30 visit to the Cherokee Nation headquarters, Barr said that he is working with Oklahoma’s federal congressional delegation to devise a “legislative approach” to address the McGirt decision. Both Governor Stitt and Senator Inhofe have called for a federal “legislative solution.”
As TYT has reported, Stitt and Inhofe have pushed for federal legislation to take over not only environmental regulatory control of Tribal lands but all regulatory control, which would return Oklahoma back legally to pre-McGirt status.
In six emails between the EPA’s public relations office and TYT, the agency has not denied the accuracy of TYT’s main points or the Wheeler letter and Summary Report.