Recent Supreme Court Decisions–Implications for Tribes
1. Loper Bright
The Loper Bright decision overturned the Chevron deference doctrine, which required courts to defer to reasonable agency interpretations of ambiguous statutory terms. As a result, agency rules and guidance viewed as favorable to Tribes could be vulnerable. For instance, challenges to recent rules adopted by the Biden administration, such as the 401 Water Quality Certification Rule and Tribal Reserved Rights Rule, could be strengthened by the loss of Chevron deference; these rules enhance tribal voices in protecting the water quality of waters they use. Court challenges have argued the rules exceed EPA’s authority under the CWA. Post-Loper Bright, EPA can no longer count on potential statutory ambiguities to afford its interpretations Chevron deference, stripping the agency of a powerful judicial review advantage.
It should be noted that Loper Bright does not affect all agency actions. For example, it does not disturb the deference given to agencies’ scientific and technical expertise. Thus, agency actions requiring the exercise of such expertise, such as Biological Opinions issued under the Endangered Species Act, should not be affected by Loper Bright. The decision also leaves undisturbed the arbitrary-and-capricious standard of judicial review applicable to factual agency determinations like the Bureau of Indian Affairs’ decision to take land into trust for the benefit of Tribes.
In addition, the “Indian canon of construction,” which requires courts to interpret ambiguous statutes in favor of Tribes, could mitigate Loper Bright’s impacts on tribal interests. For example, in Arizona Public Service Co. v. Environmental Protection Agency, 211 F.3d 1280, 1294 (D.C. Cir. 2000), the D.C. Circuit relied on the canon to broadly interpret the term “reservation” as used in the CAA.
Finally, it appears that Loper Bright would not affect Tribes’ eligibility to be “treated as a State” (“TAS”) for purposes of implementation of environmental laws such as the CAA and CWA since the statutes authorizing Tribes to be treated as a state are clear and afford EPA discretion to authorize TAS status.
2. Corner Post
In Corner Post, the Supreme Court ruled that the default six-year statute of limitations period for challenging federal agency actions under the Administrative Procedure Act (APA) starts at the time of injury, not at the time of final agency action. The types of agency actions that are vulnerable to this new standard will depend on how expansively Corner Post is interpreted. Corner Post could be read narrowly, specific to its facts, and thus be applied only to facial challenges to agency rules and not extended to as-applied or procedural challenges. Moreover, many environmental statutes have their own timeframes for challenging certain agency actions, which often begin to run at the time the action becomes final. These time periods supplant the default statute of limitations and likely are unaffected by Corner Post.
If read broadly, Corner Post could mean that many agency actions benefiting Tribes for which there is no alternative specific time frame to challenge, such as EPA’s approval of tribal water quality standards, might be challenged long after the standards are approved. Conversely, Corner Post may open a window for Tribes to challenge agency actions that later become adverse to tribal interests. For instance, a reservoir constructed in accordance with a CWA 404 permit that floods tribal land more than six years after the permit is issued could be subject to later review.
A key issue to watch going forward is whether plaintiffs in existence at the time of final agency action can challenge that action at any time they are adversely affected by it. This hypothetical is in contrast to the facts of Corner Post, where Corner Post Inc.’s business came into existence after the default APA six-year period and was then injured by the interchange fee rule.
3. Jarkesy
Jarkesy interpreted the Seventh Amendment to require that civil penalties in SEC securities fraud cases be adjudicated by Article III courts with jury trials, rather than in-house by the administrative agency. Jarkesy could be extended to affect how the EPA and other agencies impose civil penalties if courts decide, as the Supreme Court did in Jarkesy, that the agency enforcement action reflects a suit at common law meant to redress private harms implicating the Seventh Amendment. Jarkesy therefore raises the question of whether EPA or USACE enforcement actions, wherein Congress has empowered the agency to assess civil fines–e.g., CWA Section 309(g)–implicate “public rights” or are closer in substance to common law private causes of action, such as common law nuisance. If the latter, these actions would need to be heard by a jury per Jarkesy. Notably, the Supreme Court’s opinion recognizes the “public rights exception” to the Seventh Amendment, under which cases implicating “public rights” can properly be heard outside of an Article III court. The Court’s opinion further recognizes that public rights cases include those that involve “relations with Indian tribes.” However, whether this public rights exception to the Seventh Amendment would extend to exclude environmental enforcement actions against Tribes from the jury trial requirement is unclear. Overall, agency enforcement of environmental statutes against Tribes may not be significantly affected.
Conclusion
Loper Bright, Corner Post, and Jarkesy collectively weaken federal administrative agency power but do not change fundamental aspects of federal Indian law. The decisions do not degrade tribal sovereignty or the federal governments’ obligations to Indian tribes arising from statutes, treaties, court decisions, or Executive Orders. Furthermore, the Indian canon of construction, which is an independent tool of statutory construction holding that statutory ambiguities must be read to favor Tribes, remains intact. Other core aspects of administrative law such as the arbitrary-and-capricious standard of review should also survive the Supreme Court’s latest decisions. Nevertheless, given the recent trend of the Supreme Court to restrict rather than expand the power of federal agencies, it remains crucial for Tribes to engage in the consultation process and build a robust administrative record that will withstand judicial scrutiny in this evolving regulatory landscape.
