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Complying with the CAA in Indian Country

Clara Poffenberger, Air Quality Issues Affecting Oil, Gas, and Mining Development and Operations (2018)

From industry counsel perspective, there are currently three dynamic areas of discussion regarding compliance with the Clean Air Act (“CAA”) for operations in Indian country (1) the importance of jurisdiction - how it relates to permitting and other requirements, permit appeals, interpretation of regulations, and enforcement. (2) the complexity of jurisdictional determinations; and (3) the tangled relationship of NSPS, permits, and FIPs. I. Jurisdiction Matters A fundamental question for complying with air regulations is which government entity has jurisdiction: state, federal or tribal. State and tribal jurisdictions do not overlap; a source is either on state land or on tribal land, with rare exceptions. Jurisdiction is based on the physical location of the source on the land; it is not based on where the air emissions travel. Although the “air shed” of an area can include both state and tribal lands – the air emissions from a source impacts the air quality of state and of tribal lands – a source is usually only located on state or tribal land, not both. Federal lands – such as national parks – are subject to the air permitting jurisdiction of the state. Federal air regulations do not apply by themselves on federal lands; state regulations apply on federal lands; the federal government is an owner of lands under state jurisdiction. On tribal lands, federal regulations apply in the absence of approved tribal regulations or are incorporated by tribal regulations – just like a state. Which authorities have jurisdiction matters in several important ways for permitting and for enforcement of air regulations. For permitting, the differences relate to: (1) who issues the permit and the permit content preferences of the permit authority; (2) the appeals process for permit decisions; (3) what additional separate procedures or regulations apply; and (4) what guidance or interpretations of the applicable regulations might apply. For enforcement, the differences relate to: (1) who is the primary enforcer; (2) whether the applicable regulations can be enforced by citizens under the CAA; and (3) what other federal agencies might weigh in on issues. These differences, discussed further below, might be important when evaluating investment or operational options.