Court Supports Cleaner Air for Tribal Lands in Michigan

By Michelle Chen Sep 12, 2009

Cross-posted from Air America: After generations of seeing their habitat ravaged by industrial pollution, one Native American community in the Midwest is reclaiming sovereignty over the air they breathe. A federal appeals court has ruled that a Wisconsin-based Native American community has the right to enjoy a higher standard of clean air under federal environmental regulations, compared to the neighboring state of Michigan. Judge Diane Wood explains in the decision why Native communities–as long as they are relegated to separate parcels of land and under assault from various pollution sources–should be able to push for separate standards under the Clean Air Act:

The cultural and religious traditions of the Forest County Potawatomi Community… often require the use of pure natural resources derived from a clean environment. Many years ago, the Community became alarmed by increasing pollution levels in its lakes, wetlands, and forests.

The court basically found that the Potawatomi Community, which has campaigned widely on climate change and other pollution issues, responded properly to epidemic pollution by appealing to the Environmental Protection Agency for a regulatory change. The agency may upgrade some tribal areas to “Class I status” under a special program of the Clean Air Act, which “would have the effect of imposing stricter air quality controls on emitting sources in and around the Community’s redesignated lands.” The Clean Air Act has long served as a crucial, if limited, tool for poor and marginalized communities to resist environmental degradation. The Act sets limits on certain pollutants and establishes a permitting process, whereby polluters looking to set up a facility must demonstrate how they will adhere to air quality standards. A higher designation for the Potawatomi Community doesn’t completely eliminate sources of pollution, but it does provide a stronger shield against carbon monoxide, ozone and other stuff clogging the air. The ruling notes that the Community’s proposal is rooted in cultural practices that pre-date both polluters and government regulators:

[The tribe] sees the preservation of these lands as crucial to its cultural heritage. For example, the Community’s belief system requires that plants and animals that are used for medicines and religious ceremonies be obtained in a pure form from a clean environment. With increasing pollution, the community saw its heritage threatened…

The EPA supported an initial redesignation request about 15 years ago. Both Wisconsin and Michigan objected at first, citing the potential impact on polluters in surrounding non-tribal lands. Although the community eventually worked out an agreement with Wisconsin’s government to limit the geographic range of the enhanced standards, Michigan continued to balk at stricter regulation. The state apparently felt that in its dispute with an embattled tribe trying to salvage what’s left of its natural heritage, the government turned out to be the “injured" party. The court was not sympathetic. According to the opinion, on top of a faulty legal argument, Michigan has no business pleading victim after resisting opportunities to reach a settlement with the tribe as Wisconsin did. And who exactly is injured by cleaner air? Judge Wood notes that for the surrounding communities, “Michigan’s air can only benefit from the redesignation of Community lands to Class I status.” Michigan’s government does have one reason to chafe at broader clean air protections for local tribal lands. Folks across the state are suffering from both the recession and the filthy legacy of Big Auto. Meanwhile, the EPA is working on incorporating greenhouse gas emissions into its air pollution regulatory regime. Just as the country is poised to weaken the power that polluters have so long held over our economy and natural resources, people might start looking to spread the Potawatomi’s indigenous wisdom across the Rust Belt. Image: Lake Michigan, Michigan City, IN (Paul Burd, Highly Subjective)