1 The SIP Process: A case study in political reality and interpretation of bureaucratic language Presented by Scott Weir Air Quality Coordinator Kickapoo Tribe in Kansas

2 TRIBAL CASE STUDY

3 The Question was Simple From: Scott Weir Sent: Thursday, June 12, :17 AM To: Cc: Subject: Clean Power Plan Importance: Hey, all y’all: Please review the attached letter from EPA concerning the invitation to Tribes to consult on the Clean Power Plan, and please note the highlighted text. My question is this: Whether the Kansas Tribes enter into Federal consultation or not, are you going to work with us on EGUs. They’re a concern in Region 7… -scott

4 The Question was Simple, but… …I deliberately sent the to several people with whom I had worked closely when I was in the State Air Program. sent on June 12 th Forwarded to my former Section Chief Answer came on June 20 th – eight days later Written in the Bureaucratish language

5 The answer was not simple, and must be translated: Scott: As you can imagine, we are currently in the process of trying to sort out exactly what the proposed rule says and how it might impact Kansas. Our current task is to wrap our arms around that, and develop comments on the proposed rule to share with EPA. We will start the planning process in earnest after we see a final rule from EPA in a year or so. Between now and then we will develop an outreach plan to identify the various stakeholders in this process and how and when they will be included in the development of the state plan. We will include the tribes on our draft list of interested parties. That is all I can say for now.

6 The Translation Scott: As you can imagine, we are currently in the process of trying to sort out exactly what the proposed rule says and how it might impact Kansas. Our current task is to wrap our arms around that, and develop comments on the proposed rule to share with EPA. “This is not a priority. It wasn’t on our radar screen, the final rule is all that matters, and we’ll add the review to our list of future activities.”

7 The Translation (cont.) We will start the planning process in earnest after we see a final rule from EPA in a year or so. “We’ll take this seriously if we don’t like what we see in the Final Proposed Rule.”

8 The Translation (cont.) Between now and then we will develop an outreach plan to identify the various stakeholders in this process and how and when they will be included in the development of the state plan. We will include the tribes on our draft list of interested parties. That is all I can say for now. “We don’t actually think Tribes are stakeholders in this issue. We’ll put you on a non-existent draft list, and drop you off it later. We really don’t want to be bothered about this.”

9 The Bottom Line: Political Reality (not always true, but generally so – varies from State to State, with exceptions) State will act in own best interest and that of entities it regulates State will take easiest route to implementation Stakeholders have a voice, but State will hear what it wants and refute or minimize conflicting arguments State assumes tribal interests will somehow be in conflict with its interests State will not understand tribal sovereignty or take it seriously. (Kansas has never recognized sovereignty in writing, but relies on Federal court decisions.)

10 Sovereignty? Issues of Tribal sovereignty in Kansas (and in general) are decided in Federal court cases which demonstrate that the doctrine of Indian sovereignty in conjunction with Federal preemption bars the State from acting in its own interest

11 TAR and TAS Tribal Authority Rule and Treatment as an Affected State provide powerful legal mechanism for exercise of Tribal sovereignty and self-determination

12 Scott Weir, Air Quality Coordinator Kickapoo Tribe in Kansas Environmental Office ext. 2