McGirt and the Oklahoma Midnight Rider

The United States Environmental Protection Agency (EPA) is stepping into the fracas between tribes and the state in the wake of the United States Supreme Court’s decision in McGirt. Last month, EPA issued notice and request for comment related to reconsideration of its October 2020 approval of a request made by Gov. Kevin Stitt to confirm the state’s EPA-approved environmental regulatory programs over certain areas of Indian country. Stitt’s request was an attempt to address the regulatory uncertainty created by McGirt and to confirm that those federal environmental programs previously administered by the state in Indian country prior to McGirt would remain under state authority.

The request was made under the infamous “Oklahoma midnight rider” in the Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005 (SAFETEA). The rider was inserted by Senator Jim Inhofe into the 2005 highway funding bill after review by the Senate and House and in response to attempts by Oklahoma tribes in the early 2000s to seek EPA approval to administer certain federal environmental programs on their lands. The rider allows Oklahoma to administer EPA programs across the entire state, including in Indian country, if it requests such authorization from EPA; it further requires that any tribes in Oklahoma seeking to administer federal environmental programs must first obtain a cooperative agreement with the state. The language of the rider gives no discretion to EPA to deny such a request. At the time of its passage, an attorney for the Pawnee Nation described the rider as “the most scary, direct, take-the-gloves-off-and-go-for-the-jugular attack on tribal sovereignty I have ever seen.”

Many federal environmental programs provide for delegation of regulatory authority to individual states, subject to minimum standards and to EPA approval and oversight. Prior to McGirt, when eastern Oklahoma was thought to be land over which the state had unequivocal jurisdiction, Oklahoma maintained a number of such programs covering that area.

Similarly, some federal environmental programs provide for delegation of regulatory authority to Indian tribes, otherwise known as “treatment as a state” (TAS). To achieve TAS status, a tribe must meet certain qualifications, namely that it is “capable, in the judgment of the (EPA) Administrator,” of implementing the program. The SAFETEA rider effectively gives preference to the state to administer such programs and furthermore prevents any tribes in Oklahoma from obtaining TAS statute without additional approval from the state. Thus, approval of the state’s request may have complied with SAFETEA and even promoted certainty and maintained the status quo of environmental regulation pre- and post-McGirt, but it also may have deprived Oklahoma tribes the opportunity to exercise their sovereignty with respect to TAS programs.

In his dissent in McGirt, Chief Justice Roberts observed that the majority’s decision had the potential to create “significant uncertainty” regarding environmental regulation in Oklahoma. Without intervention from Congress or further litigation clarifying the jurisdictional boundaries between Oklahoma tribes and the state with regards to federal environmental programs, it appears that Justice Roberts’ premonition was correct.

This article first appeared in The Journal Record on January 21, 2022, and is reproduced with permission from the publisher.