Tribal Suits Over Sacred Sites & EPA Weakens Regs

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4:10This is Bloomberg Law with June Grosso from Bloomberg Radio. When EPA Administrator Lee Zeldin launched what he called the greatest day of deregulation in American history six months ago, there seemed to be no mention of protecting the environment or endangered species, but rather of advancing American energy, revitalizing the auto industry, and getting rid of climate protections put in place by the Biden administration. EPA will be reconsidering many suffocating rules that restrict nearly every sector of our economy and cost Americans trillions of dollars. Our actions include the Biden administration's deeply flawed Clean Power Plan 2.0, Mercury and Air Toxic Standards, Quad OBC, Particulate Matter 2.5, Light, Medium and Heavy Car and Truck Rules.

5:09And in keeping with those goals, the agency has sought to roll back dozens of environmental regulations. The latest, the EPA plans to end the Greenhouse Gas Reporting Program, which for the last 16 years has tracked pollution from some 8 ,000 sites and requires large, mostly industrial polluters to report their planet-warming greenhouse gas emissions to the government. My guest is environmental attorney Jennifer Novak. Jennifer, this Greenhouse Gas Reporting Program was created by legislation signed by President George W. Bush in 2007. Explain what it does. The Greenhouse Gas Reporting Program has been the primary way for the U.S.

5:59government to track certain emissions for about 8 ,000 of the country's largest facilities since 2010. This is how we've tracked emissions of carbon dioxide, methane, and other gases that come from sources like oil refineries and steel mills and cement plants and coal-burning power plants. And it's how we have been identifying where a lot of these emissions have been coming from, but also tracking whether or not we are able to try to reduce them by addressing those sources. And we've been relying on this for quite a long time up until now. I will also note that this is also a way for places like California and other states that have cap and trade programs to be able to both design as well as track the emissions so that they can determine how to run those programs and using this information from around the country.

7:00The EPA Administrator Lee Zeldin said the Greenhouse Gas Reporting Program is nothing more than bureaucratic red tape that does nothing to improve air quality. Would you agree with that? I do not agree with that. This program provides very valuable data for us to understand what is going on in these industries, how it may be contributing to local communities, as well as to a larger, more global problem. And asking for certain industries known to be large sources of these emissions is not just red tape, not just cost, but is part of understanding the science of what the problem is. And more importantly, science is the foundation for how we determine what policies to have and how to implement them, whether or not we even need certain policies.

7:55So by depriving universities, nonprofits, other governments of this data, we effectively are attacking the very foundation of the policymaking, which is the science. Truthfully, it's the opposite of transparency, and it would mean a lot of these otherwise climate-based policymakers will be flying blind. Is the only benefit the only reason for this, that it's going to save businesses, according to Zeldin, up to$2.4 billion in regulatory costs over the next decade? Is that the benefit here? It's really the only thing I see, that the only justification one could bring up. And more importantly, we don't know where that number comes from, so we don't know if that's the true cost.

8:40I will also note that this doesn't mean that certain industries won't collect the data. It just means they won't report it so that the public and the government doesn't know how bad a problem might be. So the cost savings from the collection and reporting may not be as great as the Trump administration is assuming. The EPA is terminating dozens of environmental regulations. Is this just one part of that rollback? It really does go to the issue of the regulations. One of the reasons why we haven't seen the ability to eliminate many regulations, especially in the environmental realm, is because the science just doesn't justify it.

9:24If you put the science out there to show that you do need certain regulations or certain policies, then it's very hard for the government to simply wipe them off the books. So here, by attacking the science or at least depriving the science from that discussion, then it makes it a lot easier to try to take things off the books that might otherwise be needed. I will note that just because we're not necessarily recording and reporting this information does not mean that these facilities are not emitting things like the methane and the carbon dioxide. It just means we won't know about it. Is it sort of in line with the Trump administration trying to erase notes of climate change on websites?

10:10It goes part and parcel with that. If you can't point to the science and the data to show what's happening with the climate, then one can argue that it's all made up, right? If you have the data, then it makes it harder for them to say that climate change doesn't exist. Before Biden left office, he said that they handled things in such a way that the Trump administration wouldn't be able to destroy their environmental achievements. but it seems like they are doing that. They certainly are trying. For example, under President Biden, we had the Inflation Reduction Act of 2022, which required certain oil and gas facilities to both collect their emissions data and report it.

10:59The Trump administration is not getting rid of that particular requirement, but they are proposing that there's a delay in implementation for 10 years. In other circumstances, the priorities of the EPA clearly have been publicly shifted, where I believe the administrator has been saying that the mission of EPA is to support the U.S. economy, whereas I think most people would argue that the mission of the Environmental Protection Agency is to protect both people and the environment and to ensure that we are not either destroying health and the environment, but certainly to try to maintain it as best we can while balancing the need for economic development and other things we need in our lives.

11:46But in this situation, what we see is an attack on the inside as well. What kind of information is coming out? What kind of opinions people can have? What kind of studies they are developing? And this is part of an overall much larger situation with the Trump administration also attacking things like universities and nonprofits that were receiving grants to work on especially climate issues. So it's a multifaceted attack on the many places that would already be working together, collaborating, sharing data in order to make these larger policy changes that the Trump administration clearly does not agree with.

12:26You know, you talk about science, etc. But the Trump administration has asked NASA to decommission and possibly destroy two satellites that measure greenhouse gases from space. Yes, that has been in the news lately. And it's consistent with this proposal to eliminate the reporting of greenhouse gases. One could look at it as a short term, long term issue. Long term, we're going to need this data from a variety of sources. and shutting down the reporting or eliminating satellites means you may save money in the short term, but sooner or later, we are going to need that back. So we will be behind.

13:08It may be harder for us to address these larger problems in the long term if we haven't been working on them consistently all along. And you can't just take a break and then come back to it and pick up where you left off. The Earth does not care whether or not we believe in climate change. The Earth is doing what it's doing, and we can either address it and understand it now, or we will have far more expenses and human effects later on down the road. That was going to be my next question. You anticipated I was going to say, if a new administration comes in that believes in climate change and fighting climate change, can we recoup?

13:48We certainly can go back to the fight, but you will have lost potentially years of data and thousands of data points in the process. That being said, I would anticipate that we will see lawsuits arising from this proposal. There is also a public comment period, so it's not a done deal yet, this particular proposal, and I don't know whether or not it will go into effect right away. I would anticipate there will be requests to the courts to delay the implementation on the very grounds that we've been discussing, just the need for it, the severity of the problem, the fact that we are at a critical juncture with respect to understanding and addressing climate change.

14:33Can the states in any way step in and make requirements of facilities in their state? The states can step in and put in their requirements. But part of the problem is by having a federal program, you have consistent requirements across the board, as opposed to going state by state with their requirements. You may see variances in the quality of information that is reported. And so it is more difficult to attack this on a state by state or regional government by regional government basis, as opposed to having a federal program. In addition, states definitely like to be able to look to having federal law to turn to and be consistent with and to enforce.

15:17And the Clean Air Act has been a very powerful tool for decades in terms of addressing these issues. It's a lot harder for states to step in and try to supplant that. How does this affect the tax credits that companies get that capture and bury their carbon emissions? It's unclear how it will affect it. That certainly is one of the unknowns here, which is that there are other reasons why businesses collect this data and report it. Sometimes it may be that they have carbon capture requirements. They may have other sustainability requirements. There may be requirements from the Department of Energy, for example.

16:00And so it's not that these companies won't necessarily need this information. It is that, again, that we won't be receiving it through reporting necessarily, or it will be much more patchwork because of their other issues. But to the extent that companies are trying to do the right thing, they're going to find themselves in an interesting situation where some companies may have ongoing requirements and some may be excused from it and therefore be getting an economic advantage. Thanks so much, Jennifer. That's environmental attorney Jennifer Novak. Coming up next, Apache tribes try to stop development on a sacred site.

16:40This is Bloomberg.

16:49For centuries, Western Apaches have worshipped at Oak Flat, a nearly seven square mile site in Arizona, where tribal members conduct religious ceremonies that can't take place anywhere else. One is the Sunrise Ceremony, a three-day coming-of-age ceremony for Apache girls that requires gathering certain plants at Oak Flat and being painted with white clay from the ground. For years, the tribal members have tried to stop the federal government's transfer of the sacred tribal land to a copper mining company, which will end in the sacred site being destroyed. Indigenous and environmental groups have filed multiple lawsuits against the U.S.

17:32Forest Service, but the legal paths for tribal groups to protect Oak Flat on religious grounds have been narrowed by several decisions. They bring up the question of whether tribal religious freedom claims, are getting equal treatment. A dissent by Justice Neil Gorsuch suggests they're not. My guest is Heather Whiteman runs him, director of the Tribal Justice Clinic at the University of Arizona. Heather, can you give us the background of this legal fight? Yeah, in 2014, Congress passed the Southern Arizona Land Exchange and Conservation Act as part of a much larger defense authorization bill that was really so voluminous that it didn't have a whole lot of review and people weren't paying super close attention to some of the smaller parts of that much larger piece of legislation.

18:28And because of that, this particular bill, the Southern Arizona Land Exchange and Conservation Act, was able to make its way through congressional ratification and was signed into law by President Obama. This particular initiative had been a standalone bill numerous times before and had never moved forward, never been able to get through Congress. What the bill does is it mandates the transfer of Forest Service land to a private company, Resolution Copper, for the purpose of mining a substantial deposit of copper that underlies the surface of that land. The reason why that's difficult or why it's been opposed for so many years is because the land on the surface is the site of very significant, long-standing religious practices by the Western Apache people.

19:24And so the mining of the copper will result in the complete destruction of a substantial area of the surface land. It will subside. It will create a very large crater. It won't be usable any longer for the purposes that the Apache people have maintained on that land for hundreds and hundreds of years, if not longer. And so that, according to the Apache people, is a substantial burden on their religious practice. And common sense would, I think, lead anybody to a similar result, that if you destroy the land that is absolutely necessary for the practice of a religion, that's a burden. So that's the conflict in essence.

20:06Are the legal challenges based on the First Amendment or the Religious Freedom Restoration Act? The challenges are based on both of those. There are also claims that have been raised related to the treaties between the Western Apache people in the United States, And also some claims that are based in NEPA, the National Environmental Policy Act, and consultation claims as well that, you know, the consultation process between the federal government and the tribes in question here, the tribal members and the tribal government was not sufficient or it wasn't meaningful. The procedural history here is so complicated.

20:45It's been up to the Ninth Circuit more than once, right? So there are several different causes of action. To back up a little bit further, as part of the Land Exchange Act, environmental impact statement is to be prepared. And then within 60 days of the finalization of the EIS or the environmental impact statement, the land transfer is mandated to take place. That's what the act provides for. And so the EIS was underway, was being prepared, preliminarily announced to be about to be released back in 2021. And that was when Apache Stronghold filed its lawsuit in the District of Arizona. Apache Stronghold is a coalition of tribal members.

21:33It's not the tribal government, but it's, you know, some of the folks who were really involved and so devoted to the practice of their religious beliefs at Oak Flat and, you know, really sincere adherence to those cultural practices and beliefs from within the Apache tribe. And so there are a couple of different claims that were raised in that particular lawsuit, the RFRA claim, the First Amendment claim, as well as treaty claims, and some of the other issues with NEPA and the APA. The district court initially dismissed most of those claims, but what did go forward was the RFRA and First Amendment issues, and those went up to the Ninth Circuit.

22:14The Ninth Circuit ruled against Apache Stronghold and moved on to review en banc before an en banc panel also ruled against Apache Stronghold in a very, very complicated opinion or series of opinions, about 240 pages, seven different written opinions with sort of two different majorities holding in two different ways. And then from there, there was a petition for a review through the full en banc Ninth Circuit Court of Appeals, which was denied, after which point Apache Stronghold petitioned for certiorari to the U.S. Supreme Court. Will you explain why the Ninth Circuit found that the transfer couldn't be considered a substantial burden on religious exercise?

23:04So the Ninth Circuit opinion, it's a tough one to parse out, right? And so there are a couple of different things that happen there. First, the court ruled that there was no substantial burden, right, because there's not coercion. Under some previous case law, the Ninth Circuit has a very narrow definition of substantial burden and of coercion. So they have ruled that in the absence of withholding of a benefit because of a religious practice or a punitive or punishment type of provision in a generally applicable federal law that is triggered by what would otherwise be, you know, a basic exercise of a religious practice, that there's no coercion that results in no substantial burden.

23:55Will you tell us more about how Native American religious practices require relationships with specific locations and natural features and how that played into the arguments. And that's the second part of the Ninth Circuit on bond holding. So the first is applying this really narrow standard, really restrictive standard for finding a substantial burden. And also a different majority of the Ninth Circuit then held that where there's a federal property management initiative, that cannot burden religious freedom rights, which is really wrong when you think about it, that, you know, under the Ninth Circuit ruling, we're limited from ever bringing any kind of claim then saying that a federal land management decision substantially burdens our free exercise rights because it's federal property, the federal government has the right to do what it wants with its own land.

24:53And that just doesn't seem right to me, that we can't limit the federal government from violating the First Amendment because the federal government is the landowner. So the analysis under the Ninth Circuit approach is really that we're looking at the relief thought to limit our ability to ever find an injury to people's First Amendment rights. So we can't find a burden because the relief that we're seeking, which will limit what the federal government as a landowner can do with its own property, you know, it certainly presents a real challenge to any Native American person whose religious beliefs depend on a relationship with a specific land base, and many of ours do.

25:34Many of us have religions and religious practices and beliefs that require specific things to happen in specific places, often at specific times, and that is our sincerely held religious belief and how we practice it. So it renders Native of American religious beliefs virtually unprotectable in many instances under the way that the case law has developed. And I just think that can't be right. And I hope most Americans would consider that situation and feel similarly, that that simply cannot be correct, and that cannot be consistent with our Constitution or what our founders intended. And tell us about the religious significance of Oak Flat with regard to the three-day coming-of-age ceremony for Apache girls that tribe members say can't take place anywhere else?

26:23From my understanding, and I'm not an Apache person, Oak Flat is the site where female members of the San Carlos Apache tribe have their coming-of-age ceremonies. So it's where a girl becomes a woman, and there's a specific ceremony that takes place when a girl becomes a woman. And it's a very intensive, multi-date ceremony. It's incredibly onerous physically. There's a lot of prayer. A whole community comes together to help bring a girl into womanhood. It's a necessity for a woman to go through that ceremony to fully realize her identity as an Apache woman. So it's incredibly significant. It's one of the most important things that happens in any woman's life in that culture.

27:07As we've discussed, there are several cases here. Which is the case that went to the Supreme Court? And the litigation that's been, you know, most developed and has gone the furthest up that was brought by a coalition of tribal members who organized as a nonprofit corporation as Apache Stronghold. And so, you know, Apache Stronghold petitioned for certiorari to the U.S. Supreme Court. The U.S. Supreme Court, upon completion of the cert petition briefing, brought the case in for conference, I think something like 16 times. So it went up for review to consider whether it would be, whether cert would be granted many, many times over the course of last spring.

27:49Ultimately, on May 27th, the Supreme Court denied certiorari, unfortunately. However, soon after the denial of cert, Apache Stronghold's attorneys filed a petition for basically a reconsideration of the cert petition, asking the Supreme Court to grant Sir Shirari, remand the case back to the Ninth Circuit, and provide clear direction to the Ninth Circuit on how to review the legal argument going forward in a new Ninth Circuit review. Part of the reason for that is because intervening precedent was decided after the denial of Sir Shirari. Coming up next, the Supreme Court denied cert, but Justice Neil Gorsuch said it was a grave mistake for the court not to hear the case.

28:41I'm June Grosso, and you're listening to Bloomberg. Indigenous and environmental groups have filed multiple lawsuits against the government seeking to preserve Oak Flat, a 6.7 square mile site for Western Apache's religious ceremonies that plaintiffs say can't take place anywhere else. Years-long court challenges have attempted to stop the federal government's transfer of the land to a copper mining company. But the legal paths for tribal groups to protect Oak Flat on religious grounds have been narrowed by several decisions, especially in the U.S. Court of Appeals for the Ninth Circuit. I've been talking to Heather Whiteman Runs Him, director of the Tribal Justice Clinic at the University of Arizona.