Congressional Plenary Power and Indigenous Environmental Stewardship: The Limits of Environmental Federalism

Abstract

Congressional plenary power has been a powerful force in federal law for over a century, forming the legal foundation of Congress’s extraordinarily wide range of legislation over indigenous Americans, their lands, and their governments. The Supreme Court's corollary Plenary Power Doctrine has bolstered this power over time by requiring highly deferential judicial review of the many statutes related to Indian affairs. Despite the lack of a strong Constitutional foundation, Congress has consistently used the mantle of Plenary Power to legislate in a wide range of indigenous matters and the Supreme Court has declined to place meaningful constraints upon its exercise. In the area of environmental law in particular, Congress exercised its plenary power to delegate environmental regulatory authority through various statutes, including the Clean Water Act, the Clean Air Act, the Safe Drinking Water Act, and others. These delegations have been widely lauded for the opportunities they created in the area of tribal environmental law. Yet, despite the excitement that these amendments initially brought, their value remains open for debate. For instance, less than .1% of federally recognized tribes have obtained primacy from EPA under one or more of the Tribes as States (TAS) provisions in the environmental statutes. The faulty legal foundation and arguably low level of success of the TAS provisions (particularly when viewed across the entirety of tribal and indigenous lands in the United States) call into question the continuing role and value of the Congressional Plenary Power Doctrine itself. For, while the short-term goal of improving air or water quality might be achieved by the tribes that can manage to satisfy the numerous criteria to obtain primacy in one or more areas, the legal reality is that the federal government still controls the regulatory playing field for the vast majority of tribes, and even for tribes that have obtained TAS status in one area, but not others. This Article examines critically the role of Congressional plenary power, in the past and in the modern era, to illustrate how the Constitutional basis for Congress’s asserted power in this area is inherently flawed. It also explores the pragmatic limitations of Congressional plenary power over tribal environmental quality. Finally, the Article explains how continued recognition of Congressional plenary power over indigenous environmental regulation and environmental quality causes serious and troubling concerns for tribal sovereignty and tribal environmental quality in the long term.