Introduction to Tribal Environmental Justice Law

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Introduction to Tribal Environmental Justice Law

• Brenda Brandon TOSNAC Coordinator
• Myron Dewey HERS Research Assistant
• Haskell Environmental Research Studies Center

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STATUTES REGULATIONS

• A statute is a type of law
• they exist at the federal, state, county and
  local levels
• federal statutes are written by Congress and
  signed by the President
• Regulations support statutes
• they are issued by governmental agencies to
  carry out the law
• they are the details that state how a law will
  be implemented

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EXECUTIVE ORDER

• An Executive Order is an order issued by a
  governments chief executive
• it is not a statute or regulation
• it is not written or passed by a legislative body
• it is intended to give attention to a certain law
  or body of laws directs federal agencies how to
  implement them
• agencies to which an Executive Order applies have
  a legal and political obligation to fulfill the
  requirements of the order

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Important Tribal Law Concepts

• Treaties, and other Agreements (e.g. Executive
  Orders and Statutes)
• Tribal Sovereignty, including Jurisdiction
• Federal Trust Responsibility
• Executive Order 13175 (2000)
  Consultation and Coordination With Indian Tribal
  Governments
• Government-to-Government Relationship

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Executive Order 13007 Indian Sacred Sites (1996)

• Accommodate access to sacred sites by Indian
  religious practitioners
• Applies to Federally owned lands except Trust
  Lands
• Protect the physical integrity of sacred sites
• Complements other procedures regarding tribal
  life
• Executive Directive on eagle feather use in the
  practice of the American Indian religion (1994)

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President Clintons Executive Order 12898

• Foster non-discrimination
• in programs affecting health or environment
• Encourage greater opportunities
• for minority or low-income communities to
  participate in decisions
• Created the Interagency Working Group on
• Environmental Justice
• Required federal agencies to do additional
• research on environmental justice issues
• Described how existing laws could be used to
  address environmental justice issues

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Rules and Regulations

• Environmental acts, rules, and regulations are
  influenced by Environmental Justice (EJ)
  guidelines within agencies
• Environmental Justice guidelines and activities
  are laid in place over (superpose) Agency
  Environmental programs

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EJ Issues Addressed in Permitting

• Resource Conservation and Recovery Act
• Hazardous Waste Treatment, Storage and Disposal
• Clean Water Act
• State Water Quality Standards
• National Pollution Discharge Elimination System
  Permits
• Section 404 of CWA- Army Corps of Engineers
• Clean Air Act
• New Source Review
• Title V- permits from stationary sources
• Tribal Air Rule (40 CFR Part 71)

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Potential Environmental Justice Authorities

• Superfund (composed of two authorities)
• CERCLA (Comprehensive Environmental Response,
  Compensation and Liability Act)
• SARA (Emergency Planning and Community Right to
  Know Act)
• Safe Water Drinking Act
• Toxic Substances Control Act
• Federal Water Pollution Control Act
• Federal Insecticide, Fungicide, and Rodenticide
  Act
• Marine Protection, Research, and Sanctuaries Act
• National Environmental Policy Act

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Interagency Federal Working Group on
Environmental Justice

• Environmental Protection Agency
• Office of Management and Budget
• Office of Science and Technology Policy
• Office of the Deputy Assistant to the President
  for Environmental Policy
• Office of the Assistant to the President for
  Domestic Policy
• National Economic Council
• Council of Economic Advisers
• and such other Government officials as the
  President may designate

• Department of Defense
• Department of Health and Human Services
• Department of Housing and Urban Development
• Department of Labor
• Department of Agriculture
• Department of Transportation
• Department of Justice
• Department of the Interior
• Department of Commerce
• Department of Energy

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Agencies Use Existing Laws to Achieve
Environmental Justice Goals

• Federal Interagency Working Group
  http//www.epa.gov/Compliance/environmentaljustice
  / interagency/index.html
• Requires agencies to work together
• to develop EJ strategies and commitments
• and to share information
• Through Public Participation and Sharing of
  Information processes agencies achieve EJ goals
  related to social, economic, environmental and
  health issues and policy

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EJ
Clean Water Act
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EJ
CAA
CWA
RCRA
Pesticides
Superfund
Brownfields
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EJ
Clean Air Act
Clean Water Act
National Environmental Policy Act
Solid Waste
Pesticides
Superfund
Brownfields
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Environmental Impact to TribesCultural Risk
Considerations

• Sustainability concerns
• Human and Environmental Health
• Natural and Cultural Resources
• Social Enhancement and Economic Opportunity
• Any proposed environmental project, contaminant
  concern or cleanup activity can impact any or all
  categories of cultural consideration

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Potential Impact
EJ
Sustainability
Natural and Cultural Resources
Social Enhancement Economic Opportunity
Health Environment
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Tribal Case Study III

• Fort Belknap Tribes
• Harlem, Montana

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Snake Butte Mountain Brownfields, Zortman
Landusky Mine Superfund
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Influence of Contaminants on Tribal Cultural Risk
Concerns

• Different contaminants are represented by
  brightly colored dots
• Contaminants can impact any or all categories of
  cultural risk-
• Sustainability concerns
• Human and Environmental Health
• Natural and Cultural Resources
• Social Enhancement and Economic Opportunity

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Fort Belknap Case
EJ
Brownfields- Snake Butte
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EJ
Brownfields
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EJ
Superfund- Zortman Landusky Mine
Brownfields
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Multiple Contamination Concerns

• Tribes can be impacted by a number of
  contaminated sites
• Some sites have multiple contaminant concerns,
  indicated by small dots connected by lines
• A particular contaminant source can influence
  multiple regulatory aspects, indicated by arrows
  connecting circles

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EJ
Brownfields
Superfund
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EJ
CWA
Brownfields
Superfund
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Multi-Media and Multiple Source Contamination and
EJ Concerns

• Involving multiple media, such as water and air,
  or air and sediment increases level of EJ
  concerns
• Multiple contaminant sources can add to
  complexity of EJ concerns
• Multiple environmental activities can have
  cumulative impact to the Realm of EJ the
  stacking affect

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EJ
CWA
RCRA
Brownfields
Superfund
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EJ
CWA
RCRA
Brownfields
Superfund
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EJ
CWA
RCRA
NEPA
?
Brownfields
Superfund
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Evaluation of Risk of EJ Concerns

• EJ concerns increase as
• number of contaminated sites increases
• multi-media concerns increases
• number of contaminants within each site increases
• degree or seriousness of contaminant impact
  increases at each site
• level of cultural impact increases overall

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Gray Areas of Defining EJ

• Any and all Tribal EJ issues become important in
  any environmental process, especially when
  multiple cultural resources or activities are
  impacted or potentially impacted
• Tribal EJ issues are not always well defined, as
  social, cultural, spiritual components are not
  easily assessed and are rarely adequately
  considered during environmental processes

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The Question of Assessing Risk and How it Relates
to EJ

• During Superfund process it is important to
  provide effective communication avenues in order
  to adequately address risk concerns within
  Environmental Documents
• Effective public involvement in addressing
  potential risk can help alleviate overall level
  of EJ concerns within community during cleanup
  process

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www.tosnac.org

• Technical Outreach
• Services for Native
• American Communities
• (TOSNAC)
• BrendaBrandon_at_msn.com
• Toll Free 1(866)880-2296