Transcript Tribal Authority Rule (TAR) Overview

Tribal Authority
Rule (TAR):
Historical Overview
David LaRoche
TAR Development
• CAA Implementation Authority
[Section 301(d)]
– 1990 CAA Amendments
– Tribal air management authority
– TAS
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TAR Development (cont.)
• EPA proposed implementation in 1994
– Eligibility requirements
– Application procedures
– Provisions for “treating tribes like states”
• Rule proposed Aug. 1994
• Rule promulgated Feb. 1998
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Framework for Tribal
Implementation of CAA
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Jurisdiction
Sovereign immunity
Modular approach
Grant match requirement
Federal implementation
Eligibility requirements
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Tribal Jurisdiction
• Within exterior boundaries of
reservation
• Other areas where tribes can
demonstrate jurisdiction
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Sovereign Immunity
• Treating tribes in a manner similar to
states
– Tribes objected
– Sovereign immunity waived only voluntarily
or by Congressional statute
• Final TAR addresses issue directly
– Withdraws proposal on section 304
– Allows alternative to judicial review
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Modular Approach
• Ensures flexibility
• Tribes and EPA develop approaches
• Elements to be
– Reasonably severable
– Consistent with legal requirements
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Grant Match Requirements
• Grants under Sec. 103 & 105
• Sec. 103 requires no match
• Sec. 105
– 5%, then 10% after 2 years with TAS with
EPA RA demonstration of tribe’s ability to
increase its share
– 40% without TAS
– Waivers available for hardship (rare)
• EPA will review program over time
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Federal Implementation
• Trust responsibility
• Federal Implementation Plan (FIP)
required
– Where necessary or appropriate
provisions
– Without unreasonable delay
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Eligibility Requirements
• Federally recognized tribe
• Governing body with substantial
governing duties and powers
• Statement of tribe’s authority
• Capability to carry out program
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TAR Litigation History
• DC Circuit Court of Appeals
• Petitions for review filed by
– State of Oklahoma - withdrawn
– AZ Public Service Company
– National Assoc. of Manufacturers et al.
– Salt River Project et al.
– Oklahoma Gas and Electric Co.
– National Mining Association
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Litigation Issues
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Judicial review
Public participation in the TAS Process
Abrogation of pre-existing contracts
Reservation definition
Jurisdiction
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DC Circuit Court Opinion
• Upheld EPA’s interpretation on
every issue
• One judge dissented on extent
of delegation provided by
Congress
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Appeal to Supreme Court
• Issues in petition
– Definition of “reservation”
– Congressional delegation of authority
• Supreme Court denied certiorari (review)
– (Re-hearing possible but not likely)
• DC Circuit Court opinion upheld
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Any questions?
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