Federal Regulatory Delegations to States and Indian Tribes

Over the last thirty years, Congress has enacted a number of natural resources and environmental statutes that include potential delegations of regulatory authority to states, and more recently, to Indian tribes. Many of the federal statutes in question establish comprehensive regulatory schemes to govern one or more aspects of environmental protection or natural resources development, and then allow a State (or a Tribe) to assume “primacy” over the regulatory program within the borders of that State (or on the particular Tribe's lands).1 These federal regulatory schemes are not limited to activities, conditions or development on federal lands within a State, but rather extend to all lands within the State's borders.2

Of course, when Congress enacts a comprehensive environmental or natural resources development regulatory program, it is preempting the ability of states and tribes to legislate in those areas covered by the statute. Thus, on the one hand, Congress is terminating the authority of the states and tribes to legislate in a [13-2] selected area, while on the other hand, it is offering those same states and tribes the ability to be the primary regulator of the federally-enacted program if the states or tribes meet certain conditions set forth in the statute.3 Because the analysis of federal delegations to states is somewhat different from that of federal deleg