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's inquiry, therefore ought to have been differently framed, given tribes' unique legal and political status. Specifically, EPA ought to have confronted squarely the impact of its decision on tribes' fishing rights, rather than consider these rights as a mere afterthought. EPA 's 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' 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's work with the mercury rule, in the hope that the lessons gleaned here might help EPA's future efforts to consider and respond to environmental injustice in the tribal context.
Environmental Justice in the Tribal Context: A Madness to EPA's Method, 38 ENVTL. L. 495