ELR Citation: ELR 20248
No(s). 99-1151 (D.C. Cir. Oct 30, 2001)

The court holds that the U.S. Environmental Protection Agency (EPA) exceeded its authority under the Clean Air Act (CAA) when it promulgated a rule allowing it to treat areas where the Native American status is in question as Native American country, and proposing to make state/tribal jurisdictional determinations on a case-by-case basis rather than through notice-and-comment rulemaking. The court first vacates the portion of the rule authorizing EPA to treat areas where the Native American status is in question as Native American country for purposes of implementing a federal program in those areas. The CAA grants EPA the authority to implement a federal operating permits program if a state or tribe fails to implement an adequate program of its own. Where a valid state program exists, EPA may implement a federal program only for Native American country itself, not for lands the status of which EPA deems in question. Jurisdiction must either lie with the state or with the tribe, and EPA does not have the authority to implement a federal program in the absence of clear state or tribal authority. Thus, prior to implementing any federal operating permits program, EPA must determine the scope of state and tribal jurisdiction. The court next holds that in making these jurisdictional determinations, EPA must use notice-and-comment rulemaking. Congress has explicitly required the use of notice and comment in determining adequate authority when the Agency is evaluating state plans, therefore, EPA's decision to use separate adjudicatory proceedings that do not include notice and comment is contrary to law. The CAA further requires notice to a state whenever the administrator makes a determination that a permitting authority is not adequately administering and enforcing a program. This includes determinations of adequate authority and, thus, determinations of jurisdiction. Therefore, the rule is vacated in part and remanded.

Counsel for Petitioner
Henry V. Nickel
Hunton & Williams
1900 K St. NW, Washington DC 20006
(202) 955-1500

Counsel for Respondent
Cynthia A. Drew
Environment and Natural Resources Division
U.S. Department of Justice,Washington DC 20530
(202) 514-2000

Sentelle, J. Before Ginsburg and Edwards, JJ.