Environmental Federalism in Indian Country: Does Primacy Improve Enforcement?

• In Event: American Indian Policy and Intergovernmental Relations

Abstract

This paper analyzes the effects of implementation primacy on Clean Water Act (CWA) enforcement under American Indian tribal governance. The landmark environmental laws of the 1970s that form the core of America’s environmental policy regime are built upon federalist governance institutions: states bear much of the formal responsibility for administration and enforcement of the programs that govern air pollution, hazardous waste, and water quality. Extensive research on “environmental federalism” investigates the effects of these intergovernmental arrangements on environmental policy formation, administration, and outcomes. But the original legislation establishing these laws made no mention of American Indian tribal lands, and the subsequent research literature on environmental policy has given little attention to them. Indian tribes govern 4.8 million residents on 326 reservations covering 56.2 million acres—a population similar to Alabama’s and a land area roughly the size of Utah.

As sovereign nations under federal government trust, Tribal governments administer U.S. environmental policies directly in cooperation with the U.S. Environmental Protection Agency (EPA), not under state authority. Previous research on CWA and Safe Drinking Water Act implementation (Teodoro, Haider & Switzer 2016) finds that, compared with non-tribal facilities, tribal facilities receive less rigorous enforcement and violate these laws more frequently. They describe this disparity as a case of “systemic regulatory neglect” by the federal government. However, since 1987 tribes have been eligible to assume implementation primacy under federal environmental law. Teodoro, Haider & Switzer (2016) do not account for primacy status in their analysis of CWA enforcement. To date, 54 Tribal governments have secured primacy for CWA implementation.

Environmental policy implementation on tribal lands offers an exceptional opportunity to study the effects of primacy status on enforcement under environmental federalism. Do tribes that secure primacy use their newfound authority to enforce more rigorously? Or does primacy lead to even greater “regulatory neglect,” with tribes using primacy to shirk environmental regulations in a race-to-the-bottom?

Drawing on data form the EPA and other sources, we compare CWA enforcement across 405 tribal wastewater facilities regulated under the CWA. After accounting for factors that distinguish tribes that seek primacy from those that do not, we find that, on average, enforcement increases significantly under tribal primacy. These results are consistent with Cornell and Kalt’s (1998) “driver’s seat” hypothesis: placing tribal governments in the capacity previously occupied by the federal government improves Tribal outcomes. Our findings offer important lessons for public management and policy design in a federal system, and perhaps even more profound implications for environmental justice.

Authors

• Mellie Haider

• Manny P. Teodoro, Texas A&M University