Arizona Journal of Environmental Law & Policy, Volume 9 (2018-2019)
ABOUT THIS COLLECTION
The Arizona Journal of Environmental Law & Policy (AJELP) is an interdisciplinary online publication that examines environmental issues from legal, scientific, economic, and public policy perspectives. This student-run journal publishes articles on a rolling basis with the intention of providing timely legal and policy updates of interest to the environmental community.
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The Shifting Landscape of Ancestral Lands: Tribal Gathering of Traditional Plants in National ParksThe National Park Service (“NPS”) acknowledges that Native American tribes have deep “historical, cultural, and religious” ties to the lands that the NPS was created to conserve. The national park system was established through the National Park Service Organic Act of 1916 (“Organic Act”) to “conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” However, in the process of conservation, the new legal regime stripped away the historic uses of these ancestral lands from many Native American tribes. In most national parks, tribes could not gather traditional plants as it was deemed to contravene the conservation mandate. A few tribes were able to gather plants either through prior treaties, congressional acts, presidential proclamations, memoranda of understanding, or even by nonenforcement of the regulations. However, in June 2016, after persistent efforts by tribes, the NPS enacted a final rule that enables federally-recognized tribes to enter into agreements with individual national parks with which the tribe has a historic connection to gather traditional plants. This rule was opposed by environmental and watchdog groups that questioned the NPS’s authority to promulgate such a rule. This article begins by discussing the treaties, park enabling acts, and other agreements that give rise to tribal gathering rights within national parks. It next chronicles the evolution of NPS regulations and policy mindsets of NPS-tribal relations and how these mindsets affected tribal gathering rights. Following the section on historical regulations is an analysis of the 2016 final rule and criticisms thereof. This article concludes with a case study of the Eastern Band of Cherokee Indians, the first tribe to allocate funds for an environmental assessment, as required by the new rule, to gather sochan in the Great Smoky Mountains National Park (“GSMNP”), their relationship with the GSMNP, and how this struggle fits into the larger framework of tribal gathering rights.
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State Of Wyoming V. U.S. Department of the Interior Confused Agency Overlap with Preclusion: BLM Had Authority to Promulgate the Fracking Rule for Public Lands, Not Tribal LandsHydraulic fracturing (“hydrofracking”) is an increasingly used form of “clean energy” production, but, like anything in life, it has associated costs. Associated costs include potential groundwater contamination caused from chemicals used during the hydro-drilling and fracking process. In December 2016, the EPA released a study, which found that hydrofracking is associated with the “contamination of underground sources of drinking water and surface waters resulting from spills, faulty well construction, or by other means.” At first glance, it would appear that the most direct source for regulating groundwater contamination caused by hydrofracking would be the Underground Injection Control Program (“UICP”) of the Safe Drinking Water Act (“SDWA”). In 2005, however, Congress expressly excluded hydrofracking from the Environmental Protection Agency’s (“EPA”) UICP authority in the Energy Policy Act. Public and legal commentary refers to this exclusion as the “Halliburton Loophole.” Given the regulatory gap that the Halliburton Loophole created, on March 25, 2015 the Bureau of Land Management (“BLM”) promulgated the “Fracking Rule.” The Fracking Rule amends 43 C.F.R. Part 3160 of the Federal Land Policy and Management Act of 1976 (“FLPMA”) to create a comprehensive regulatory scheme for managing hydrofracturing and groundwater contamination caused by such drilling and well operations. The Fracking Rule’s regulatory scheme attempts to address three areas of hydrofracking on federal and tribal lands: (1) wellbore construction; (2) chemical disclosures; and (3) water management. The BLM argues that promulgating the Fracking Rule is a part of its “regulatory sphere.” BLM claims this regulatory sphere is created by comprehensively reading several statutes together, which include the FLPMA, Mineral Leasing Act of 1920 (“MLA”), Indian Mineral Leasing Act of 1938 (“IMLA”), and the Indian Mineral Development Act of 1982 (“IMDA”). The BLM used both the FLPMA and MLA for its authority to regulate hydrofracking on federal lands, whereas the BLM used the IMLA and IMDA for its authority to regulate hydrofracking on tribal lands. Because the Fracking Rule has the potential to change the fracking industry, several states—including Wyoming, Colorado, North Dakota, and Utah—along with several gas companies and the Ute Indian Tribe, sued the Department of the Interior challenging aspects of the rule.11 In State of Wyoming, Judge Skavdahl held that the BLM violated the scope of authority granted to it by Congress in promulgating the Fracking Rule. In setting aside the Fracking Rule, the court provided three connected, yet independent, reasons for reaching its holding. First, the court held that since both the FLPMA and MLA are silent as to hydrofracking, the BLM exceeded its congressionally delegated authority in adopting the rule. Second, the court reasoned that the EPA has regulatory authority over hydrofracking, which precluded the BLM from promulgating the Fracking Rule. Finally, the court asserted that administrative structure created by Congress restricts the BLM authority to land use planning; rules relating to environmental protection are solely under the jurisdiction of the EPA. State of Wyoming does not discuss the BLM’s authority under IMLA or IMDA for regulating hydrofracking on tribal lands at all. This is curious since, in the September 30, 2015 Wyoming decision, Judge Skavdahl did examine the Ute Indian Tribe’s contention that the BLM breached its fiduciary duty to Indian tribes when promulgating the Fracking Rule. Specifically, Judge Skavdahl held that IMDA requires meaningful efforts to involve tribes in the regulatory decision-making process, which the BLM breached. This article argues that the U.S. District Court of Wyoming improperly decided State of Wyoming, and the Tenth Circuit should confirm the validity of BLM’s Fracking Rule on appeal. Specifically, State of Wyoming mistakenly assumed that the EPA’s SDWA authority and the Halliburton Loophole precluded the BLM’s authority under FLPMA. But when Congress created the Halliburton Loophole in 2005, it only intended to alter the EPA’s regulatory authority under the SDWA and not BLM’s authority. With the FLPMA and MLA, the BLM has broad authority to prevent public lands from being unnecessarily degraded by mineral extraction. By providing regulatory checks on hydrofracking through the Fracking Rules chemical disclosure requirements and other requirements—such as sufficient cement casing for hydrofracking wells, the BLM is acting within its broad authority. Nevertheless, the BLM lacks authority under the IMDA and IMLA to apply the Fracking Rule to tribal lands. Tribal lands are unique, and the BLM owes tribes special fiduciary duties under the IMDA and IMLA.18 Specifically, the government must act in the best interest of the tribe when promulgating a rule that affects tribal economic activities and mineral leases. This article first establishes the current scientific and public understanding that hydrofracking does adversely impact ground water quality. Second, BLM’s Fracking Rule is discussed, and the 2015 State of Wyoming decision is critiqued in light of well-established administrative principles. Third, I outline the statutory controls for regulating hydrofracturing fluid. Fourth, I argue how the Fracking Rule squarely fits within this statutory framework. Finally, I argue that the BLM improperly failed to consider the special jurisdictional limitations when extending the Fracking Rule to tribal lands.
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Deserving a Place at the Table: Effecting Change in Substantive Environmental Procedures in Indian CountryThis note explores how tribal-federal relations have impacted environmental justice efforts in domestic pipeline construction in and around Indian Country. The impact these poor relations have had on indigenous peoples has the potential to adversely affect indigenous people and their reservation and ancestral lands. This note discusses how the federal government’s consultation provision in the National Environmental Policy Act and Executive Order 12898—that were supposed to support and include tribal governments in the process—have disregarded tribal governments as indigenous sovereign nations that must be brought into the conversation long before the first shovel penetrates the ground to disturb sacred land. The Dakota Access Pipeline case through the Standing Rock Sioux Nation is used as a case study to further explore the consultation process and tribal-federal relations in the process. Drawing on Federal Indian Law, looking to federal common law and introducing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), this note suggests incorporating human rights law into the environmental justice platform as well as delving into the trust doctrine and an interest balancing test to improve tribal-federal relations in the consultation process. Including tribes in the decision-making process will help inter-government relations and garner tribal self-determination.
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Water, Climate Change, and the Law: The Case for More ProtectionIf environmental laws are a means to an end, what is the “end” of environmental laws in Arizona? What do we hope to protect? At what point do existing laws and institutions become obsolete in light of increasing development pressure, changing societal values and climate change? What is the path forward given so much change and uncertainty? Is there a meaningful possibility of protecting both our economy and the fragile environment that we live in in the context of climate change? As the pace of change accelerates in human and natural systems, it will become increasingly important to ensure that our institutions, laws and policies are enabling a resilient and sustainable future for our children, as opposed to becoming barriers to progress. This requires ongoing evaluations of the costs and the benefits of current approaches, as well as an assessment of whether there are feasible alternatives that might be more effective in meeting the goals of Arizona citizens. The groundwater management system in Arizona, first adopted in 1980 through the Groundwater Management Act, was very sophisticated, remarkably so in light of Arizona’s current reputation as a hard-line conservative state. In fact, though there have been scores of amendments over time, the basic provisions have not changed very much. That said, climate change and an array of other issues pose challenges that have not yet been addressed, and pressure on water supplies, rural communities and natural habitats is increasing over time. The Southwestern US is at the “bleeding edge,” as climate scientist Jonathan Overpeck puts it, of climate change impacts—given ever-increasing temperatures in combination with likely reductions in average total precipitation. Surface water flows are already declining and are expected to continue to decline over the decades ahead.1 Though the Southwest actually experiences fewer extreme weather and climate events (hurricanes, tornados, storm surges, etc.) than other parts of the US, the incremental changes in temperature, precipitation and runoff are already having dramatic effects on our water supplies. This is particularly evident in the Colorado River reservoirs, with water levels steadily declining. The “bathtub ring” around lakes Mead and Powell provide ample evidence that our assumptions about water supply availability are not in line with hydrologic reality. However, the more irreversible but less recognized impacts are those happening across our landscapes—especially in the context of changes in water-dependent ecosystems and forests. And they are directly impacting rural communities and their economies. Why do changes in riparian and aquatic systems matter? They matter not only because they support the majority of the biodiversity of the state, but because extinction is permanent, and because biodiversity has intrinsic value to many. They also matter because the quality of our environment is a significant part of our quality of life. And quality of life is one of the pillars of our economy— Arizona without the Grand Canyon, the White Mountains, the Verde, Salt and San Pedro Rivers, the National Forests and Parks, and rural ranching and agricultural communities is not the Arizona that we know and love. Although there are many challenges ahead—not the least of which is Arizona’s long-term failure as a state to invest in the future —there are paths forward in building a more resilient future for rural communities and for environmental values.
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Will the Means Justify the End of Environmental Law? Environmental Law Must Undergo Reasoned Legislative DebateAs we examine the course of environmental laws in this country, the pressures on existing laws and what ends we should be aiming for in the future, it is necessary to explore the animating policy decisions and innovations of these laws. But we also must be courageous enough to openly debate the policy decisions underlying those laws and whether they represent the best way forward for our society. If we fail to do so, the existing statutory structure will continue to be hollowed out and made less and less useful and applicable until we will have an end to environmental law as we know it. In this essay, I will describe the pressures that are currently being put upon environmental law, explain how those pressures are related to a failure to debate environmental and other societal values, and propose that we have the strength to preserve and/or alter environmental laws to meet the needs of today’s country and world.
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Rising Tides, Rising Obligations: Enforcing Tribal Trust Responsibility for Climate Change MitigationThe trust responsibility, in the context of Federal Indian Law, is the unique political and legal relationship between the federal government and Native nations. The theory is based on the exchange of federal authority over Native peoples for their protection and well-being under the treaties signed between them. History has shown that the Government seldom acts in compliance with this relationship. Despite the trust’s colonialist doctrinal roots, Native nations continue to cite this relationship as a tool to protect their remaining resources. In the years since Cherokee Nation, which first discussed the trust relationship, the nature and extent of the relationship has been inconsistently applied by all government branches, to the point where many remain skeptical to the trust’s utility in the 21st century. The Trump administration continues to divest from previous efforts to reduce, or even study, the impacts of climate change in the face of rising average global temperatures and attendant environmental consequences. Native nations bear the brunt of the consequences as water becomes scarcer, forests burn and die off, and access to traditional resources becomes more difficult. While the trust responsibility is not often seen as a method to compel equitable relief, such as specific performance of treaty provisions, this Note will show that the canon of Federal Indian Law supports an affirmative, actionable trust responsibility that would bind federal agencies to climate change reduction efforts. The federal government must carry out its obligation to protect Tribal trust resources under their management, including mitigating climate change to minimize losses to such resources. The legal remnants of the original trust doctrine still retain enough power to control federal action in this regard, under the Administrative Procedure Act and the Indian Claims Commission Act. This new application of the trust to climate change mitigation could be a useful tool to turn a traditionally hollow, paternalistic doctrine into a means of crafting a sustainable future for Indigenous communities in line with its original intent.
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Trickster Law: Promoting Resilience and Adaptive Governance By Allowing Other Perspectives on Natural Resource ManagementA multiplicity of anthropogenic stressors are individually and collectively making natural resources management a realm of pervasive uncertainty. New and legacy pollution—particularly the global spread of plastics and persistent organic pollutants and the tremendous level of nutrient loading —threaten both human and non-human health as well as larger social-ecological function. Loss of biodiversity has become egregious enough to be dubbed the Sixth Mass Extinction, while the impacts of climate change are driving the plethora of species that remain to shift their ranges and intermix in ways that have never occurred before.6 More pervasively, climate change and its “evil twin,” ocean acidification, are altering the basic conditions of planetary function—from global average and local temperatures, to ocean currents, to precipitation patterns, to water supply, to vegetation patterns, to marine chemistry, and much more. At the same time, both the global population of humans10 and their consumeristic impulses continue to increase, leading footprint studies to conclude that we are collectively consuming far more than one Earth’s worth of goods and services every year. Unless and until greenhouse gas concentrations in the atmosphere stabilize, we can’t expect to just hunker down and survive until a “new normal” emerges. Instead, for a while, everything will be changing all the time—including the natural resources upon which all human societies depend. Welcome to the Anthropocene. As Melinda Harm Benson and I argued in The End of Sustainability, this new reality means that managing for "sustainable" use of natural resources will become increasingly impossible. Trickster law offers a new perspective on environmental and natural resources law by combining new scientific models, adaptive governance theory, and a new cultural narrative to allow these areas of law to better cope with the realities of the Anthropocene. In particular, this essay focuses on how, by allowing room for new voices and values, trickster law can contribute to the emergence of different priorities and structures of natural resource management that promote the resilience of social-ecological systems in a changing world.