ESCAPING ENVIRONMENTAL PATERNALISM: ONE TRIBE'S APPROACH TO DEVELOPING A COMMERCIAL WASTE DISPOSAL PROJECT IN INDIAN COUNTRY
 
AUTHORS
KEVIN GOVER* AND JANA L. WALKER**
 
INTRODUCTION

    We have been asked to address the issue of environmental racism in the context of commercial solid and hazardous waste projects on Indian reservations.  Let us say at the outset that we have no quarrel with those who believe that undesirable facilities-such as waste disposal facilities more likely to be found in a poor minority community than in a wealthy white one.' However, the environmental community must come to understand that not all such facilities are unwanted by the host community and that, in those cases where a community wishes to have such a facility, its decision is to be respected. As an example of such a host community located in Indian country, we will use our experience in helping the Campo Band of Mission Indians of California develop a solid waste project on its reservation.

    With respect to waste disposal, there are two issues facing Indian tribes today. First, how do tribes dispose of the solid waste generated on their reservations, and second, does a tribe want to use its land as a site for a commercial waste project as a form of economic development? Almost without exception, over the last year the media has focused its entire attention on the issue of commercial projects. We cannot count the number of articles in magazines and newspapers titled "Dances with Garbage."2 The media has created a steady drumbeat of stories about tribes all over the country building landfills and taking in hazardous waste, implying that the waste industry is marauding unchecked in Indian country, immune from any environmental regulation whatsoever.

    Is it true? In our experience over the last few years, this is just not the case, and we believe that much of the media attention has been misguided and uninformed. Even if we assume that some waste companies are targeting Indian country, tribes have almost always repelled these so-called attacks.3 In most cases, tribes are not even giving these companies an interview. Of the dozens of proposals that apparently have been made to tribes, only a small number remain under serious consideration.4 Tribal governments quite clearly have demonstrated that they are fully capable of deciding whether or not a project will serve their best interests.

    To set the record straight, the bigger problem is not that the waste industry is beating a path to the tribal door. Rather, it is the unauthorized and illegal dumping occurring on reservations. For most Indian communities the problem of open dumping on tribal lands is of much greater concern than the remote prospect that a commercial waste disposal facility may be sited on a reservation.

    Until 1986, Congress had left tribal governments completely out of the federal environmental scheme. In 1986, Congress enacted the first tribal amendments to federal environmental laws. Those amendments allowed tribes to be treated as states for program enforcement and grants under the Safe Drinking Water Act.5 Congress enacted similar amendments to Superfund in 1986,6 the Clean Water Act in 1987,7 and the Clean Air Act in 1990. 8

    Unfortunately, Congress has not yet enacted tribal amendments to the Resource Conservation and Recovery Act (RCRA)9 authorizing tribes to assume primary enforcement authority for solid and hazardous waste programs. This means that even though tribes possess inherent authority to do so,10 tribal amendments will be necessary before tribes will be eligible under RCRA for any federal grant or contract assistance to deal with their waste problems.

    On Indian lands, it is estimated that there are over 650 sites where solid waste has been disposed of.11 This includes 108 tribally-owned landfills constructed years ago by the Indian Health Service (IHS).12 Although IHS originally built these landfills to meet the then existing federal standards, now, under the more stringent federal standards, only a handful of the 108 are reported to be in compliance with EPA requirements.13 One estimate by the Indian Health Service found that it would cost $160 million to construct on reservations solid waste facilities that would be in compliance with EPA standards,14 and to date, we do not know where this money will come from.15

    The threat of tribal environmental liability comes at a time when Indian reservations are some of the most impoverished places in the country. Off the reservations, states, counties, and cities are scrambling to deal with their own problems of an ever increasing waste stream, rapidly dwindling capacity in existing landfills, and increasing public opposition to the siting of "locally unwanted land uses"-or"LULUs"-such as landfills. We refer to these public position groups as NIMBYs or "Not in My Backyard" groups. Another term used to describe them which seems particularly fitting where tribal waste projects are concerned is "CAVE" or "citizens against virtually everything." At any rate, the overall high poverty level for Indian communities and the NIMBY pressure on state and local governments to put landfills in someone else's backyard have contributed to the false belief that reservations alone have been targeted by the waste companies.

    The second and more controversial issue facing tribes involves the use of reservation lands as sites for commercial solid and hazardous waste disposal facilities. Looking at the waste industry as a form of economic development, in many respects it can be a good match for tribal communities. The industry is usually willing to pay the costs of developing new projects without requiring a tribe to put any cash up front. Since most tribes just do not have the money to independently fund large-scale economic development, this makes the industry attractive to Indian communities desperate for development. The waste industry needs isolation and an abundance of land, and, again, because of the overall lack of tribal economic development, undeveloped land is a resource that many tribes have. The waste industry also provides numerous opportunities for unskilled and semi-skilled workers, including training in the construction and environment compliance fields. On most reservations, unemployment is extremely high and opportunities for training Indians very limited. Finally, the waste industry is and must be recognized as an indispensable and legitimate part of the services sector of the economy, and as such, can be an extremely profitable form of development for tribes.

    All of this means that, under certain circumstances, a solid or hazardous waste disposal project may represent a viable and appropriate form of industrial development for some tribes and can provide extraordinary opportunities for economic development on some reservations. It is not appropriate for every community, and we certainly are not urging tribes to site waste facilities on their reservations. Each tribe must decide for itself if it is interested in such development. Our intent is merely to put things in a more honest perspective and to describe one process that, when and if a tribe seriously considers a commercial waste proposal, it can use to evaluate the proposal effectively and, if it's feasible, plan for its development.

The Campo Band Model

    Over the last four years, our firm has helped the Campo Band pursue a commercial solid waste landfill. This project will accept only municipal solid waste and will not accept any hazardous waste. Based on the Campo Band's experience, we have identified several key elements that we believe will help such projects succeed.

    The Campo Band is a federally recognized tribe whose reservation is located in southeastern San Diego County, California. Like many other Indian communities, the Band is economically depressed with an unemployment rate of approximately sixty percent, low educational levels, and mostly substandard and overcrowded housing.12  The Band has long wanted economic development, but for several reasons its prospects were bleak. First, because of its remote location and high desert environment, the Band was unable to attract manufacturers or tourists to the reservation. Gaming, which has been so beneficial in many tribal communities, was not an option because three major Indian gaming centers stand between the reservation and the major population centers of the County. The Campo Band also was prone to the "silent killers" of economic development on Indian lands; it had no track record of successful projects, no physical or political infrastructure to attract businesses and provide outsiders with some level of comfort, and absolutely no investment capital to support a deal.

    In 1987, the County of San Diego conducted a pr siting study that identified the reservation as a potential landfill site.17 The study showed an increasing waste stream and that the county landfill capacity would be depleted by the year 2004.18 Later studies showed that, in 1990, the County was producing about 3.9 million tons of solid waste each year.19 By the year 2000, the County waste stream is expected to increase to 5.8 million tons per year.20 Moreover, disposal capacity at the County's primary landfills is nearing exhaustion and, as a result, the County is truly facing a solid waste crisis and needs to find new landfill space in a hurry.21

    At first, the Band was very negatively disposed to the idea of siting a landfill on its reservation. However, its tribal leaders decided to look at the matter more carefully, and the Band authorized a consultant to conduct a feasibility study for a tribal solid waste project. The feasibility study was consistent with current County projections indicating a great increased demand for waste disposal capacity.22 The Band also learned that the solid waste industry was a good match for a tribal community with high unemployment, low educational levels, and no investment capital. Although the Band recognized the potential environmental problems, it became convinced that, with current technology and proper regulatory controls, the landfill could be operated with no more impact on the environment than any other industrial development.

    Very early in its consideration of the project, the tribal leaders wisely determined that the project would not succeed without the enthusiastic support of the tribal community. Because these projects are so controversial, community support is absolutely necessary. If a tribe finds itself with a substantial number of tribal members opposing a project proposal, it will need to turn that tide quickly or the project will just never go forward. The Campo Band tribal leadership has been open with the tribal members from the very beginning. This was a necessity because all legislative and proprietary powers of the Band are vested in the General Council, which is composed of all adult members. As a result, the development of the project has been a learning process for the entire tribe, and each member of the General Council has a good understanding of what is involved, the pros and cons of the project, and its status. Over the last four years, the General Council has voted on dozens of matters related to the project, and the project has always received the overwhelming support of the tribal community.

    Having gained a thorough understanding of the economic and environmental issues that might arise, the Band decided to proceed with the project which will consist of a recycling facility, a composting facility, and a landfill for municipal solid waste. The Band also decided that, while accepting solid waste, it would prohibit the processing and disposal of any hazardous waste within the reservation.23

    The Band's first step was to develop the infrastructure necessary for the project, including tribal environmental codes and the means to enforce them. Environmental regulation is the main way that tribes can decrease the risk of adverse impact from these projects as well as potential for tribal environmental liability under federal laws. Where tribal amendments have been enacted to the federal environmental laws, tribes are expressly authorized to develop and enforce environmental protection programs and receive federal grants to do so.24  Even though tribal amendments to RCRA are lacking, tribes interested in commercial waste projects will need to develop waste codes and regulations for their reservations. Developing these codes can be very expensive, particularly without the benefit of federal grant money, so it is important to note that responsible developers in the waste industry are quite willing to pay these costs.

    In developing its environmental codes, the Band used several strategies to deal with state and public opposition to the project. The Band wanted to ensure that the state environmental laws would be preempted from applying to any aspect of the project. This required the Band to build its own comprehensive regulatory system around the federal Indian leasing laws and the federal environmental laws. Preemption is important because a tribe may create a significant competitive advantage to siting a facility on a reservation merely by streamlining the permitting process. The California permitting process can take several years, and the Campos believed that they could permit the project faster with absolutely no compromises on the environmental integrity of the project. We want to emphasize that streamlining means increasing the efficiency of the process; it does not mean that the tribal permitting process is less stringent or less protective of the environment. While some developers mistakenly believe that, by engaging in d particular activity on Indian lands, they will be unregulated, this is just not the case.

    In setting up its environmental program, the Band established the Campo Environmental Protection Agency,25 or "CEPA", and charged it with developing a solid waste management plan for the reservation, including codes and detailed regulations.26 CEPA also is charged with administering and enforcing the tribal environmental codes.27

    Because some elected officials of the State of California were very opposed to the project, the Band decided that its best defense to possible state challenges would be a tribal solid waste code that complies not only with applicable federal laws, but also is at least as stringent as the solid waste laws of the state.28 CEPA thus developed and the General Council adopted, a tribal environmental policy act,29 a solid waste management act,30 and solid waste regulations.31 In developing the tribal programs, CEPA reviewed federal and state environmental laws and used California standards as its baseline. However, in many respects, CEPA toughened those standards and now will have the most stringent and aggressive environmental program in California.

    By early 1988, the Band had assembled a development team comprised of a financial advisor, legal counsel, and solid waste industry consultants. The development team ensures that the Band will have the proper information upon which to base its decisions and, ultimately, structure the project to benefit the tribe financially, socially, and environmentally. The Band decided that the developer would pay the costs of these experts, and any potential developer that balked was shown the door.

    The Band also created a tribal development corporation called Muht-Hei, Inc. or "MHI." MHI is wholly owned by the Band, and its board of directors consists entirely of tribal members. Once the Band had analyzed the project's feasibility and begun developing its regulatory and business infrastructure, it needed to find the best developer for the project. Using the development team, MHI prepared an economic proposal that explained to potential developers the proposed terms for the operation of the landfill and recycling facility. Those terms include aggressive provisions regarding rents, royalties, bonus payments, compliance with the tribal environmental laws, Indian preference in employment and training, indemnification, and insurance.

    With its proposal in hand, and again using its consultants, MHI then went looking for potential developers and opened negotiations with several solid waste management firms. After an eighteen month search, MHI closed agreements with Mid-American Waste Systems, Inc., a publicly traded company that operates some twenty landfills in a dozen states, and Campo Projects Corp., a corporation whose principals have successfully operated recycling facilities for twenty years.

    The Band decided that the easiest way to proceed would be through a lease of tribal land to MHI for the development of the project. In 1978, the Band had designated certain lands for industrial development. MHI has agreed to sublease part of the land-about 400 acres-to Mid-American for the development of the landfill, and part to Campo Projects Corp. for the development of the recycling facility.

    Relying on its financial consultant, the Band looked at the value of lands used for landfills across the country and used these figures to set its asking price. The end result is that the lease with the developers will require annual payments of seven figures to the Band and MHI. Because a single Superfund cleanup is now averaging $25-$30 million,32 the Band negotiated with the developers so that the Band and the Department of Interior would be indemnified by the developer for any liability resulting from the project. In addition, the Band is requiring insurance policies, bonds, and other financial assurances from the developers to insure their ability to make good on these agreements. Because employment is a primary goal of the Band, the Band negotiated a strict Indian preference requirement in hiring and training decisions. Eventually, the Band wants to see its tribal members doing not only the manual labor, but also the marketing, engineering, and management for the project.

    Because, under the National Environmental Policy Act (NEPA),33 the Department of Interior's approval of the lease and subleases will be deemed a major federal action, an environmental impact statement or "EIS" is required.34 Anticipating this, the Band initiated the federal review process by having its consultant an environmental assessment. The Bureau of Indian Affairs (BIA) is now working on the project's EIS. Typically, an EIS will discuss mitigation measures to avoid adverse impacts on the environment. The Band is planning to incorporate these mitigation measures into its primary operating standards for the project. Any violation of those mitigation measures will also serve as a breach of the underlying lease and make a developer subject to penalties under the lease, including cancellation.  While RCRA requires a hazardous waste facility to obtain a federal permit, there is no federal permitting system for a solid waste landfill. As a result, the EIS and its mitigation measures must serve as the federal environmental review for the Band's project. The Band's approach to the development of its project shows that existing federal laws can be used effectively to safeguard environmental quality and tribal economic interests.

    The benefits of the project to the Band will be many. The Band expects that the project will provide tribal economic self-sufficiency and full employment to its tribal members. The project will provide the investment capital that the Band has never had for future projects. Half of the revenues will be reinvested by MHI in other enterprises. The other half will be used to provide badly needed services on the reservation. Some of the Band's plans include providing full scholarships for any tribal member admitted to college; refurbishing all existing tribal facilities and constructing new ones; establishing a tribal housing authority; constructing new homes for every family now living in substandard housing; and providing income supplements to each tribal member.35

    In undertaking the development of a commercial waste project, or, in merely studying or considering the development of such a project, tribes must be prepared to face stiff local and state NIMBY opposition. In many instances, the NIMBYs are forming new alliances. For example, the NIMBYs, the Sierra Club, and two major waste disposal firms, Waste Management, Inc. and Laidlaw, recently teamed up to oppose the siting of any commercial waste project on Indian lands in California.36 When we see environmental groups carrying the water for waste management firms in opposition against a tribal waste project, we are forced to wonder whether it is the environmentalists' concern for environmental protection or the waste firms' concern for economic protection that is the moving force. We also have seen non-Indian ranchers allied with their Indian allottee/Landlords to oppose a project in South Dakota.37 Is it a new solidarity between the cowboys and Indians or just a marriage of convenience? In our view, it is the latter.

    Tribes also have become the focus of uninformed media coverage like the "Dances with Garbage' articles.38 These authors, many of them environmentalists, managed to glean from the movie "Dances with Wolves" only the "noble savage" stereotype that leads one to believe that "real Indians" do not produce trash, would never harm their environment, are simple in their approach to complex issues-in short, that Indians are just not smart enough to develop or regulate waste disposal responsibly. This Indian stereotype is insulting to say the least, and it smacks of the same arrogance that led fifteenth-century Europeans to conclude that they had "discovered" America.

    This is what we find troubling in the "environmental racism" issue. Too often, the environmental community appoints itself the officious protector of the Indians. We read with amazement a recent article in an environmental journal in which the author-presumably a non-Indian, haughtily proclaimed that, "in the newly-revived cosmology of Indian people, Indian lands and waste projects are simply incompatible."39 The author so concluded after having spent all of a week with some three hundred Indians gathered to discuss, among other things, the matter of environmental racism. To people like ourselves, Indians who have devoted our careers to the defense of Indian rights, this is unspeakably arrogant.

CONCLUSION

    For tribes considering developing commercial waste projects on their reservations, the major issue they face will not be an environmental one, but instead one of power and racism. Much of the environmental community seems to assume that, if an Indian community decides to accept such a project, it either does not understand the Potential consequences or has been bamboozled by an unprincipled waste company. In either case, the clear implication is that Indians lack the intelligence to balance and protect adequately their own economic and environmental interests. This is clearly a racist assumption; the same assumption that guided the federal policies that very nearly eradicated Indian people in the late nineteenth and early twentieth centuries.40 It
is "environmentalist racism," and ultimately every bit as destructive as the open hostility to Indian people that we experience in many Parts Of this country.

    We need the support and understanding of the environmental community, not its protection. Indian people are uniquely qualified to protect their own interests. Left to apply their own intelligence, beliefs, and values to a situation, they will make the right derision. The environmental community must respect that decision-whatever it may be-rather than attacking the decision and a tribe's right to make it.

    In closing, we would like to share with you an observation by Bill Largo, a youth counselor for the Campo Band:

 
 
------------------------------------------------FOOTNOTES ---------------------------------------------------------------
* Partner, Gover, Stetson & Williams, P.C., Albuquerque, New Mexico.

**  Associate, Gover, Stetson & Willims, P.C., Albuquerque, New Mexico.

1. See Paul Mohai & Bunyan Bryant, Environmental Injustice: Weighing Race and Class Factors in the Distribution of Environmental Hazards, 63 U. COLO. L. REV. 921 (1992).

2. See, eg., Thomas Daschle, Dances with Garbage, CHRISTIAN SCI. MONITOR, Feb. 14, 1991, at
36; Conger Beasley, Jr., Dances With Garbage, 2 E MAG. (Nov./Dec. 1991); Mary Hager & Bill Harlan, Dances With Garbage, NEWSWEEK, Apr. 29, 1991, at 36.

3. Kathleen Shaheen & John T. Aquino, Waste, Disposal on Indian Lands, WASTE AGE 58, Oct. 1991. For an article citing Indian resistant to siting waste dumps on tribal lands, see Tribe Resist Tempting Landfill Offers, CHI. TRIB., Sept. 22, 1991, at 4.

4. Id.

5. 42 U.S.C. § 300i. 1 1 (I 988).

6. 42 U.S.C. § 9626 (1988).

7. 33 U.S.C. § 1377 (1988).

8. 42 U.S.C. § 7601(d) (1988).

9. 42 U.S.C. §§ 6901-6992k (1988 and Supp. 1990).

10. See Blue Legs v. United States Bureau of Indian Affairs, 867 F.2d 1094 (8th Cir. 1989), aff'g Blue Legs v. Environmental Protection Agency, 668 F.Supp. 1329 (D.S.D. 1987).

 11. Select Committee on Indian Affairs, 102d Cong., 2d SESS., WORKSHOP ON SOLID WASTE DISPOSAL ON INDIAN LANDS 7 (Comm. Print 1992) (statment of Sylvia Lawrence).

12. Id. at 8 (statemmt of Bill Pearson, Indian Health Service").

13. Id.

14. Id.

15. In addition, a ubiquitous problem on Indian lands is unauthorized or "midnight dumping." These sites are prohibited under RCRA and also most be cleaned up.

16. See Draft Impact Statement for the Campo Solid Waste Project § 3.6, at 3-78 to 3-83 (Feb. 1992).

17. See id. § 1.5, at 1-10.

18. Id.

19. Id.

20. Id.

21. Id.

22. Id.

23. The Band codified this prohibition in its environmental codes discussed infra. Cf. Campo Band of Minion Indiana Solid Waste Management Code of 1990, tit. 1, § 103 (1992).

24. See supra notes 5-8 and accopanying text.

25. Campo Band of Mission Indians Gen. Counc. Res. No. 88-005 (Feb. 10, 1988).

26. Id. See also Campo Band of Mission Indians Solid Waste Management Code of 1990, supra note 23.

27. Campo Band of Mission Indians Eniviromental Policy Act of 1990, enacted by the Campo Band of Minion Indians Gen. Counc. Res. No. 90-0019 (Sept. 9, 1990).

28. Nejedly-Z'berg Dills solid Waste Management and Resource Recovery Act of 1972, 7.3 Cal. GOV'T CODE §§ 66700-66794 (West 1992) (§§ 66700-66752 repealed 1989); see also CAL. CODE REGS. tit. 14, §§ 17200-17840 (1992).

29. Campo Band of Mission Indians Environmental Policy Act of 1990, supra note 27.

30. Supra note 23.

31. Campo Band of Mission Indians Code of Tribal Regulations, tit. V (1992).

32. Clean Sites, Main Street Meets superfund: Local Government Involvement at Hazardous Waste Sites 7 (Jan. 1992) (organization report on file with the University of Colorado Law Review).

33. 42 U,S.C. §§ 4321-4370& (1988).

34. 42 U.S.C. § 4331 (1998).

35. See supra note 16, § 3.2 at 3-78 to 3-83.

36. See generally Ron Roach, Panel OKs Bill Regulating Dumps on Indian Lands, SAN DIEGO EVENING TRIB., Apr. 30, 1991, at B1.

37. Conger Beasley, Jr., Of Landfill Reservations, 3 Buzzworm 41 (Sept./Oct. 1991).

38. See supra note 2.

39. Andre Carothers, The First People, 2 E MAGAZINE 72 (Sept./Oct. 1991).

40. See generally FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW ch.2 (2d ed. 1982).

41. Campo: Sharing the Future (Ringe Media, Inc. 1991)(video on file with the Campo Band of Mission Indians).