1. Tribal Authority Rule (TAR): Historical Overview David LaRoche

2. 2 TAR Development CAA Implementation Authority [Section 301(d)] –1990 CAA Amendments –Tribal air management authority –TAS

3. 3 TAR Development (cont.) EPA proposed implementation in 1994 –Eligibility requirements –Application procedures –Provisions for “treating tribes like states” Rule proposed Aug. 1994 Rule promulgated Feb. 1998

4. 4 Framework for Tribal Implementation of CAA Jurisdiction Sovereign immunity Modular approach Grant match requirement Federal implementation Eligibility requirements

5. 5 Tribal Jurisdiction Within exterior boundaries of reservation Other areas where tribes can demonstrate jurisdiction

6. 6 Sovereign Immunity Treating tribes in a manner similar to states –Tribes objected –Sovereign immunity waived only voluntarily or by Congressional statute Final TAR addresses issue directly –Withdraws proposal on section 304 –Allows alternative to judicial review

7. 7 Modular Approach Ensures flexibility Tribes and EPA develop approaches Elements to be –Reasonably severable –Consistent with legal requirements

8. 8 Grant Match Requirements Grants under Sec. 103 & 105 Sec. 103 requires no match Sec. 105 –5%, then 10% after 2 years with TAS with EPA RA demonstration of tribe’s ability to increase its share –40% without TAS –Waivers available for hardship (rare) EPA will review program over time

9. 9 Federal Implementation Trust responsibility Federal Implementation Plan (FIP) required –Where necessary or appropriate provisions –Without unreasonable delay

10. 10 Eligibility Requirements Federally recognized tribe Governing body with substantial governing duties and powers Statement of tribe’s authority Capability to carry out program

11. 11 TAR Litigation History DC Circuit Court of Appeals Petitions for review filed by –State of Oklahoma - withdrawn –AZ Public Service Company –National Assoc. of Manufacturers et al. –Salt River Project et al. –Oklahoma Gas and Electric Co. –National Mining Association

12. 12 Litigation Issues Judicial review Public participation in the TAS Process Abrogation of pre-existing contracts Reservation definition Jurisdiction

13. 13 DC Circuit Court Opinion Upheld EPA’s interpretation on every issue One judge dissented on extent of delegation provided by Congress

14. 14 Appeal to Supreme Court Issues in petition –Definition of “reservation” –Congressional delegation of authority Supreme Court denied certiorari (review) –(Re-hearing possible but not likely) DC Circuit Court opinion upheld

15. 15 Any questions?