EPA Directs Oklahoma to Coordinate with Tribes on Protecting Air, Water and Public Health

The United States Environmental Protection Agency (EPA) on January 13 issued a new decision directing Oklahoma to give Tribes a seat at the table when administering dozens of federal environmental programs in the state. EPA’s decision covers at least 26 programs and provides for Oklahoma to coordinate with Tribes on permitting and regulatory decisions addressing air and water pollution, drinking water protection, toxic substances, hazardous and solid wastes, and other issues.

EPA’s new decision modifies an October 2020 order in which the agency approved a request by Oklahoma to assume responsibility for those programs on tribal lands across the state. Oklahoma Tribes opposed that request, and the Pawnee Nation of Oklahoma challenged the 2020 order in federal court.

“We look forward to working with Oklahoma,” said Misty Nuttle, president of the Pawnee Nation Business Council. “The state and the Pawnee Nation can better protect our air, water, and public health if we coordinate and pursue consultation efforts.”

EPA’s decision arises from a 2020 U.S. Supreme Court decision, McGirt v. Oklahoma, which determined that much of eastern Oklahoma, where the state had for many years been exercising jurisdiction, is recognized as tribal land. Normally, federal environmental programs are administered on tribal lands by EPA or the Tribe, rather than by the state. However, following the McGirt decision, the governor of Oklahoma requested to take over administration of federal environmental programs on tribal lands in Oklahoma. The request was made pursuant to a legislative rider included in a 2005 transportation funding law known as the Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005 (SAFETEA). The SAFETEA rider applies only in Oklahoma and provides for the state to assume environmental regulatory authority over tribal lands under certain conditions.

Following EPA’s October 2020 approval of Oklahoma’s SAFETEA request, the Pawnee Nation challenged that decision in federal court, and numerous Tribes asked EPA to withdraw the approval. On January 13, 2025, EPA formally withdrew the October 2020 approval and replaced it with a new approval that is conditioned on Oklahoma coordinating with eleven Tribes affected by the transfer of authority to the state. The conditions direct Oklahoma to confer with those Tribes on permitting, regulation, and enforcement of environmental laws, under a process similar to what EPA follows when it consults with Tribes on federal actions.

“We had urged EPA to deny Oklahoma’s SAFETEA request outright,” said Michael Freeman of the environmental law firm Earthjustice, which represents the Pawnee Nation. “But EPA’s decision reflects a reasonable compromise. The new terms will give Tribes a seat at the table and help mitigate the impacts of transferring environmental regulatory authority to the state. We hope to collaborate with the state to protect the air, water, and health of all Oklahomans.”