Federal Enforcement Bias: States & Tribes without Implementation Primacy

• In Event: Federalism and Environmental Policy and Outcomes

Abstract

This paper analyzes the effects of federal implementation on Clean Water Act (CWA) enforcement and compliance among Native American Tribes and States without primacy authority, with an aim toward better understanding federalism, Native American governance, and environmental justice.

The national pollution control laws of the 1970s such as the Clean Air Act, Resource Conservation and Recovery Act, Superfund, Safe Drinking Water Act, and CWA were built under a model of regulatory federalism in which responsibility, or “primacy” for implementation is delegated to state and Tribal governments. Extensive research on environmental federalism investigates the effects of ‘primacy’ on policy outcomes under American environmental law. But the 1970s era laws that form the core of American environmental regulation originally made no mention of American Indian tribal lands. Tribal land, air, and water quality thus existed in a regulatory vacuum outside state jurisdiction and largely neglected by the federal government until the late 1980s. Research on environmental federalism has neglected tribes similarly.

In the late 1980s and 1990s, federal environmental laws were formally extended to tribal lands, and since 1987, tribes have been eligible to assume implementation authority under federal environmental law, just as states are. For tribes without primacy authority, implementation for federal environmental laws are administered directly by the EPA. To date, several states and the majority of tribal governments alike do not have implementation primacy. The entry of tribal authorities into the federal environmental policy arena provides an opportunity to address fundamental questions about biases in federal enforcement and environmental justice.

Environmental regulation on tribal lands is also objectively important. Tribal governments serve and are homes to a historically oppressed and disadvantaged racial minority. Political science research on environmental justice has found evidence of lax environmental enforcement in lower SES areas or areas with high concentrations of nonwhite populations. Yet as in so many other areas of inquiry, political scientists have largely neglected Native Americans and tribal governance (Ferguson 2016). More than any other minority group in American history, American Indians have experienced systematic efforts by the U.S. government to decimate their populations and cultures. Tribal governments have struggled to make meaningful their legal sovereignty with respect to a federal government that has repeatedly asserted its plenary authority over tribal lands and waters (Wilkins & Stark 2011). A pair of recent studies indicates that tribes have endured “systemic regulatory neglect of environmental implementation” (Teodoro, Haider & Switzer 2016). However, the authors did not account for possible bias in EPA enforcement. Does the EPA administer environmental policies differently amongst states and Tribes? Does the EPA enforce environmental laws more rigorously in states?

My empirical subjects are Tribal and State wastewater treatment facilities that do not have primacy to implement the federal CWA. Drawing on data form the EPA and other sources, I compare outcomes across tribal and state facilities without implementation primacy. Specifically, I compare CWA enforcement and compliance activity for facilities regulated by the EPA.

To summarize the main results, I find that there are disparities in federal enforcement of Tribal versus State treatment facilities. These results indicate that, for Native American tribes, implementation primacy may be a means for improving environmental enforcement.

Author

• Mellie Haider, Texas A&M