Environmental Federalism in Indian Country: Sovereignty, Primacy, and Environmental Protection

Abstract: Extensive research on “environmental federalism” investigates the effects of shared state-federal implementation on policy outcomes under the landmark American environmental laws of the 1970s. But these laws originally made no mention of American Indian tribal lands, and subsequent research on environmental federalism has given them little attention. Since 1987, tribes have been eligible to assume implementation primacy under federal environmental law, similar to states. We analyze Clean Water Act (CWA) enforcement under American Indian tribal primacy compared with tribal facilities regulated directly by the U.S. government. To date, 62 tribal governments have been approved for implementation primacy under the CWA. The number and diversity of tribes operating regulated facilities provides uncommon leverage on key questions about environmental federalism. Do tribes that secure primacy enforce environmental rules more rigorously? Or does primacy allow tribes to shirk regulations in a race-to-the-bottom? Analysis of CWA enforcement across 474 tribal wastewater facilities finds that, on average, enforcement increases significantly under tribal primacy. Our findings offer insights about environmental federalism, with important implications for environmental justice.