Court backs EPA giving Oklahoma authority over environmental rules on tribal lands

10th Circuit says EPA had authority under 2005 law to approve Oklahoma's authority EPA had shifted positions during Trump and Biden administrations Dissent says EPA had discretion to impose at least some protections for tribal interests By Nate Raymond Oct 16 (Reuters) — A divided federal appeals court on Friday upheld a Trump administration decision to unconditionally grant Oklahoma authority over environmental programs on tribal lands within the state.

A 2-1 panel of the Denver-based 10th US Circuit Court of Appeals ruled that the US Environmental Protection Agency acted in accordance with a long-dormant provision in a 2005 transportation funding bill that allows Oklahoma to seek authority over environmental regulatory programs in Native American territory. The provision was dubbed the "Midnight Rider" because it was added late and without discussion to the Safe, Accountable, Flexible, Efficient Transportation Equity Act. Oklahoma did not invoke the provision until 2020, after the US Supreme Court's 5-4 decision in McGirt v.

Oklahoma, which recognized about half of Oklahoma — much of the eastern part of the state — as Native American reservation land beyond the jurisdiction of state authorities. Later that year, the EPA during President Donald Trump’s first administration approved Oklahoma’s request. At the request of several tribes including the Pawnee Nation, the EPA under Democratic President Joe Biden withdrew the approval in 2021 and reconsidered the matter. In Biden's final days in office, the EPA again approved Oklahoma's request but with a condition that the state engage in efforts to seek consensus with affected tribes.

But once Trump returned to the White House, the agency issued a new decision last year eliminating that condition, prompting a lawsuit by the Pawnee Nation. The tribe argued the EPA’s action violated the Administrative Procedure Act, saying the Midnight Rider expired in 2009 along with other parts of the 2005 spending law and that EPA wrongly under Trump concluded it had no authority to impose conditions when approving Oklahoma's request. But US Circuit Judge Timothy Tymkovich, writing for the majority, said the Midnight Rider contained no sunset provision and did not authorize the Biden-era condition.

"Congress’s command that the EPA 'shall approve' a valid request does not authorize the agency to shrink that approval by attaching a condition to it," he wrote. Michael Freedman, a lawyer for Pawnee Nation at Earthjustice, did not respond to a request for comment. Tymkovich, who was appointed by Republican President George W. Bush, was joined by US Circuit Judge Robert Bacharach, an appointee of Democratic President Barack Obama.

US Circuit Judge Richard Federico, a Biden appointee, dissented, saying the EPA had the discretion to impose at least some protections for tribal interests. "This court should not so readily acquiesce to the total displacement of the tribes as the first sovereigns of their land absent a clear statement from Congress to the contrary," he wrote. The case is Pawnee Nation of Oklahoma v Zeldin, 10th US Circuit Court of Appeals, No. 25-9548.

For Pawnee Nation of Oklahoma: Michael Freedman of Earthjustice For the United States: Cameron Hinojos of the US Department of Justice Read more: EPA withdraws Trump Oklahoma environment order after input from tribes Tribes slam EPA move to give Oklahoma control of environmental rules (Reporting by Nate Raymond in Boston)