Akin Gump’s Ian Shavitz Comments on EPA’s Relations with Tribal Nations Following Colorado Mine Spill

Ian Shavitz, senior counsel at Akin Gump and a member of the firm’s public law and policy practice, has been quoted by Law360 in its article “EPA’s Handling Of Mine Spill Threatens Ties With Tribes” regarding a toxic wastewater spill in Colorado that could lead to long-term damage to tribal waters. The spill from a defunct mine that the Environmental Protection Agency (EPA) was responsible for cleaning up led to the release of more than 3 million gallons of contaminated water.

The Navajo Nation, the article notes, has been criticizing the EPA for its lack of communication in the wake of the spill and has called for legal action against the agency. Failure to resolve the spill to the tribe’s satisfaction could resonate with other tribes across the country with Shavitz saying, “In many places, there’s already a distrust of the federal government, and then there’s an even greater distrust of the EPA. Throw in this situation that directly affects the tribe that the EPA caused, and then the EPA not having the best response — all of that snowballs.”

Noting how the situation might have been different if a private entity had been responsible for the spill, Shavitz said the EPA likely would have been very critical of its handling. “It makes for a much more difficult circumstance for tribes,” he said, “because they lose an agency that would be advocating on their behalf and holding basically a sword over a private developer.”

Shavitz added that federal environmental regulations and legislation impacting tribal interests, including the EPA’s controversial final Clean Power Plan, have contributed to tribal suspicion of the federal government and the agency in particular: “If it had been another agency, it might not have been as bad. But combined with what they’ve been trying to do recently, it probably amplified the level of mistrust on this issue.”

Finally, Shavitz predicted there will also be issues to resolve between tribal nations and the three states affected by the spill. “To the extent they do have the same interests, I think there are clearly advantages to trying to remain aligned with the states,” he said. “But there are certain obligations the federal government has to tribes it doesn’t have to states or anyone else.” The article indicates that the tribes may also be more inclined than the states to pursue litigation against the EPA, especially given the Navajo Nation’s president threat to do so. Shavitz said, “it might be difficult for the president of the tribe to walk that back.”