Environmental Justice in the Tribal Context: A Madness to EPA's Method

Article excerpt

  I. INTRODUCTION
 II. MERCURY CONTAMINATION AND REGULATION
     A. Mercury Contamination
     B. EPA's Efforts to Regulate Mercury
III. ENVIRONMENTAL JUSTICE IN THE TRIBAL CONTEXT
     A. Tribes' Unique Legal and Political Circumstances
     B. Impacts to Tribes: Different in Degree, Different in Kind
 IV. EPA's ENVIRONMENTAL JUSTICE ANALYSIS FOR THE CLEAN AIR MERCURY RULE
     A. EPA Treated Tribes as Just Another Highly Exposed
        "Subpopulation"
     B. EPA Played Games with the Concern for Disproportionate Impacts.
     C. EPA Misrepresented the Disproportionate Burden to Native People
        1. The Technical Support Document
        2. The Regulatory Impact Assessment.
     D. EPA Declined to Engage the Impacts of Delay
     E. EPA Ignored Those Impacts to Tribes that are Different in Kind
  V. CONCLUSION

I. INTRODUCTION

The rivers flowing through the [Bad River] Reservation and Lake Superior itself are important spawning grounds for sturgeon, lake-run trout, and walleye as well as many other fish, which make up a significant subsistence resource for the 1,200 Tribal members living on the Reservation and in the surrounding area. However, Band members, like many other Americans, need to restrict their fish consumption to avoid mercury poisoning.... It is unacceptable to continue to let our children be exposed to such a dangerous toxin while partaking of a food source that tribal members have enjoyed for centuries; a food source that should be a healthy part of their diet.

Bad River Band of Lake Superior Tribe of Chippewa Indians (1)

Over the last several decades this toxic substance, mercury, has caused many human health and ecological problems for Indian people.... Mercury is known to seriously impact fish eating wildlife such as loons and mink. These animals are a value to the ecosystem they inhabit and they are clan symbols for Tribal members. If these animals are threatened, Tribal culture is threatened.

Minnesota Chippewa Tribe (2)

GLIFWC's member tribes are particularly concerned about mercury contamination of ogaa (walleye), within the area ceded to the United States in treaties with the Chippewa dated July 29, 1837, and October 4, 1842. These treaties guaranteed to the Chippewa tribes certain hunting, fishing and gathering rights in the ceded territory. The purpose of this guarantee was to ensure that the tribes could continue their way of life to meet subsistence, economic, cultural, spiritual and medicinal needs....

Fishing and fish consumption are central to Chippewa (or Anishinaabe) culture. The practice of harvesting, sharing, and consuming ogaa (walleye) is passed down from generation to generation.... While these practices preserve traditional Anishinaabe 'lifeways,' there is concern in tribal communities that methylmercury in ogaa may pose serious threats to the health of tribal members' young and unborn children and therefore the continuation of these traditional lifeways.

Great Lakes Indian Fish and Wildlife Commission (GLIFWC) (3)

Although many of our Tribal members continue to fish and consume fish despite [Maine's statewide] fish consumption advisory, there are many Tribal families that no longer engage in cultural practices associated with fishing, and are thus not passing these traditions to new generations of Tribal members. The loss of our cultural ceremonies, language, and songs associated with fishing represents a significant impact on our Tribe, and results in permanent loss of the culture which defines our Tribe.

Aroostook Band of Micmacs (4)

When the Environmental Protection Agency (EPA) announced its proposed rule for mercury emissions from coal-fired utilities, (5) tribe after tribe tried to impress upon EPA the multiple and profound impacts of mercury contamination from their perspectives. Tribe after tribe sought to move EPA to consider the children who would forever suffer neurological damage and other harms. …