NOTE—NTAA recommends that you begin your Tribe’s comment letter with introductory
remarks regarding the signatory’s position with the Tribe and include somewhere in the letter a
description of the Tribe’s physical environment and any particular concerns the Tribe has with
respect to this proposed rule. The more individualized the letter, the greater its potential impact.
Feel free to add you own arguments, objections, or support for various aspects of the proposal.
The deadline for comment submission is August 31, 201.
Submit your comments, by email: A-and-R-Docket@epamail.epa.gov
Attention Docket ID No. EPA–HQ–OAR–2014–0828.
August 31, 2015
The (Name of Tribe) is pleased to submit these comments regarding the U.S.
Environmental Protection Agency’s (EPA)’s Proposed Finding that Greenhouse Gas Emissions
from Aircraft Cause or Contribute to Air Pollution that may Reasonably Be Anticipated to
Endanger Public Health and Welfare, and an Advance Notice of Proposed Rulemaking, 80 Fed.
Reg. 34830 (July 1, 2015) (Proposal).
Indian Tribes and Climate Change
The (NAME OF TRIBE) strongly supports EPA’s proposal to use its authority under
section 231 of the Clean Air Act (CAA) to find that emissions of greenhouse gases (GHGs) by
aircraft may be reasonably anticipated to endanger public health and welfare. This proposal is
another important part of the federal government’s efforts to mitigate climate change, as
described in the President’s Climate Action Plan, issued in 2013. This proposal, which would
limit CO2 emissions from aircraft is consistent with President Obama’s Climate Action Plan and
with the final Clean Power Plan that EPA released August 3, 12015. The Clean Power Plan
addresses carbon pollution standards for new, modified, and reconstructed electric utility
generating units (EGUs). Fossil fuel-fired power plants are by far the largest source of U.S. CO2
emissions, making up 32% of U.S. total greenhouse gas emissions.
As the National Tribal Air Association has written in three previous comment letters to
EPA about the proposed Clean Power Plan, Native Americans and Alaska Natives, like the rest
of the nation, are suffering from the health effects of climate change. Further, Indian Tribes are
seeing the effects of climate change through increased storm surges, erosion, and flooding;
prolonged droughts never seen in modern times; and increased fires and insect pest outbreaks in
their forests. These are just a few examples of what is happening on and around the lands of this
nation’s 567 federally recognized Tribes. (NAME OF TRIBE) supports any action that EPA can
take to reduce the amount of GHSs that are released into the atmosphere and contribute to global
warming and climate change.
The (NAME OF TRIBE) finds that Tribal communities are much more severely and
directly impacted by climate change as compared to the general population. Tribal communities
are integrated into the ecosystems of North America; and many Tribal economies are heavily
dependent on the use of fish, wildlife, and native plants. Even where Tribal economies are
integrated into the national economy, Tribal cultural identities continue to be deeply rooted in the
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natural environment. As climate change disrupts biological communities, the survival of some
Tribes as distinct cultures may be at risk. The loss of traditional cultural practices, due to
climate-driven die-off or range shift of culturally significant plant and animal species, may prove
to be too much for some Tribal cultures to withstand on top of other external pressures that they
face.
Authority under the Clean Air Act
In the proposed finding, EPA defines GHGs as a pollutant of six well-mixed constituent
gases: carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur
hexafluoride. EPA has already set precedent in this matter by finding that GHG is a “pollutant”
in order to regulate emissions from new motor vehicles and new motor vehicle engines. This
definition of a pollutant was used by EPA for purposes of section 202(a)(1) of the CAA1 for
finding that GHGs from new motor vehicles cause or contribute to air pollution which may
reasonably be anticipated to endanger public health and/or welfare. The U.S. Supreme Court2 in
2007 agreed with EPA that GHGs are air pollutants that can be regulated under the CAA, and
upheld EPA’s authority under section 202(a) of the CAA to make an endangerment finding with
regard to GHG emissions from motor vehicles. Following that decision, EPA proceeded in 2009
with rulemaking to address GHG emissions from motor vehicles.3
EPA has taken several steps since the 2009 endangerment finding to regulate GHG
emissions from other types of sources. EPA has issued Proposed Rules for Standards of
Performance for GHG emissions from New Stationary Sources, namely related to Carbon
Emission Guidelines for Existing Stationary Sources specific to electricity generating units
(EGUs). The final Clean Power Plan issued by EPA on Aug. 3, 2015 now requires that electric
generating units must take specific measures to reduce carbon emissions.
Aircraft emissions are significant sources of CO2 and nitrous oxide, both of which are
characterized as greenhouse gases. The Proposal notes that in 2013, GHG emissions from
aircraft remained the single largest GHG-emitting transportation source not subject to GHG
regulations. According to EPA, an inventory of GHG emissions for the transportation sector,
indicated that aircrafts account for 11% of all U.S. transportation GHG emissions, and
represented more than 3% of total U.S. GHG emissions in 2013.4
EPA Authority under Section 231 of the Clean Air Act
The (Name of Tribe) believe that this Proposal is clearly authorized by section
231(a)(2)(A) of the Clean Air Act which states:
‘‘The Administrator shall, from time to time, issue proposed emission standards
applicable to the emission of any air pollutant from any class or classes of aircraft
1
42 U.S.C. 7521(a)(1)
Massachusetts v. EPA, 549 U.S. 497 (2007)
3
74 FR 66496, December 15, 2009.
4
80 FR 37762
2
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engines which in [her] judgment causes, or contributes to, air pollution which may
reasonably be anticipated to endanger public health or welfare.’’5
The Proposal explains that in order to issue standards addressing emissions of GHGs
from aircraft under section 231, the Administrator must first find that the air pollution being
considered may reasonably be anticipated to endanger public health or welfare. The
Administrator then must find that emissions of the air pollutant from certain classes of aircraft
cause or contribute to that air pollution.
This Proposal and the rules to follow that EPA announced in the Advance Notice of
Proposed Rulemaking6 have been found to authorize, if not require action by EPA under the
CAA. In 2010, Earthjustice and other petitioners sued EPA, claiming that EPA had
unreasonably delayed responding to a petition to determine whether or not GHG emissions from
aircraft cause or contribute to air pollution, which may reasonably be anticipated to endanger
public health or welfare. The findings required under section 202(a)(1) are the same as the
findings required under section 231(a)(2)(A). In 2011, the U.S. District Court for the District of
Columbia found that section 231(a)(2)(A) imposed a nondiscretionary duty on EPA to make a
finding with respect to endangerment from aircraft GHG emissions.7
(NAME OF TRIBE) supports the proposal because EPA is fulfilling its duties under the
CAA, as ordered by the District Court and supported by Supreme Court precedence. Moreover,
this Proposal continues to meet the goals of EPA to reduce the build-up of GHSs in the
atmosphere. The Proposal meets the Court’s mandate by finding that elevated atmospheric
concentrations of GHGs constitute air pollution that endangers both the public health and public
welfare of current and future generations. After reviewing a great deal of information and data,
the EPA Administrator proposes to find that GHG emissions from covered aircrafts cause or
contribute to the air pollution that endangers public health and welfare. (NAME OF TRIBE)
strongly supports this finding which is based on the scientific and regulatory research,
Environmental Justice
(NAME OF TRIBE) appreciates that EPA has explicitly recognized that controlling GHG
emissions from aircrafts is important for protecting the health and welfare of those who are
vulnerable to the effects of climate change, including the elderly, the poor, Tribes and Alaska
Natives. The Proposal notes that climate change impacts particularly effect populations who are
part of the peoples to be protected by Executive Order 12898 Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income Populations.8 This is especially
important, in light of the federal government’s trust responsibility to Native American tribes, and
as recognized by EPA in the 2014 EPA Policy on EJ for Working with Federally Recognized
Tribes and Indigenous Peoples when administering a federal statute. Federally recognized
Indian Tribes, Native Americans and Alaska Natives are specifically recognized by EPA as
5
42 U.S.C. 7571(a)(2)(A)
80 FR 37790
7
Center for Biological Diversity, et al. v. EPA, 794 F.Supp. 2d 151 (D.D.C. 2011)
8
80 FR 37761 and 37781
6
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being affected by climate change, and the Proposal to further limit emissions of GHGs from
aircraft is another important step towards protecting their health and culture.
Tribal Consultation
EPA writes that the endangerment and cause and contribute findings do no impose any
new requirements, so Executive Order 131759 does not apply to this action. The rationale for
EPA’s finding is:
“The endangerment and cause or contribute findings under CAA section 231 do not inand-of-themselves imposed any new requirements but rather set forth the Administrator’s
proposed determination that GHG emissions from certain classes of aircraft engines –
those used in U.S. covered aircraft – cause or contribute to air pollution that may be
reasonably anticipated to endanger public health and welfare.”10
The (NAME OF TRIBE) finds that EPA does not understand fully the intent behind the
Executive Order. EO 13175 requires EPA to develop an accountability process to ensure
“meaningful and timely input by development of regulatory policies that have tribal
implications.” Specifically, section 1(a) of EO 13175 defines “policies that have tribal
implications” as:
[R]egulations, legislative comments or proposed legislation, and other policy statements
or actions that have substantial direct effects on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on the distribution of
power and responsibilities between the Federal Government and Indian tribes.44
The (NAME OF TRIBE) finds that Proposed Rule has implications to Tribes, as
described in the Proposal and specifically with regard to environmental justice communities,
which EPA recognizes includes Federally Recognized Tribes. Climate-driven disruption of
biological communities is also having a considerable effect on the treaty rights of Indian Tribes.
Many such treaties preserve hunting, fishing, and gathering rights for Tribes on their lands and in
the usual and accustomed areas. Some Tribes are finding that the animals and/or plants on which
they depend for their cultural practices and identity have either migrated to other lands or
disappeared altogether.
(NAME OF TRIBE) urges EPA to provide significant opportunities for consultation with
Tribes as it proceeds with finalizing these finding regarding GHG emissions from aircraft and
developing regulations to control aircraft emissions and other sources of GHGs. The (NAME OF
TRIBE) strongly supports EPA’s proposal to use its authority under section 231 of the Clean Air
Act (CAA) to find that emissions of greenhouse gases (GHGs) by aircraft may be reasonably
anticipated to endanger public health and welfare.
Conclusion
9
Executive Order 13175, Consultation and Coordination with Indian Tribal Governments (Nov. 9, 2000)
80 FR 37805
10
4
In summary, (NAME OF TRIBE) is pleased to provide these comments in support of
EPA’s proposed use of section 231 of the CAA to regulate GHG emissions from aircraft, and
EPA’s proposed findings that GHG emissions from aircraft cause or contribute to endangerment
of public health or welfare.
On behalf of (NAME OF TRIBE)
NOTE—If appropriate, provide a staff contact whom EPA may contact if it has questions.
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