Environmental Justice in the Tribal Context: A Madness to EPA\u27s Method

Many American Indian tribes and their members are among those most burdened by mercury contamination. When the Environmental Protection Agency (EPA) set out to regulate mercury emissions from coal-fired utilities, it was aware that mercury contamination and regulation affects tribal rights and resources. EPA\u27s inquiry, therefore ought to have been differently framed, given tribes\u27 unique legal and political status. Specifically, EPA ought to have confronted squarely the impact of its decision on tribes\u27 fishing rights, rather than consider these rights as a mere afterthought. EPA \u27s process, too, should have been differently conducted EPA should have consulted with tribes from the outset, in an effort to comprehend what was at stake from tribes\u27 perspectives. Although EPA purported to consider environmental justice as it developed its Clean Air Mercury Rule, it failed utterly. In this rulemaking, EPA perpetuated, rather than ameliorated, a long history of cultural discrimination against tribes and their members. This Article examines the missteps in EPA\u27s work with the mercury rule, in the hope that the lessons gleaned here might help EPA\u27s future efforts to consider and respond to environmental injustice in the tribal context