Court Upholds EPA Approval of Oklahoma Environmental Programs in Indian Country

The 10th U.S. Circuit Court of Appeals on Oct. 16 denied the Pawnee Nation of Oklahoma’s petition and upheld the Environmental Protection Agency’s approval of Oklahoma’s request to extend 26 state environmental regulatory programs to Indian country. The 2-1 published opinion, Pawnee Nation of Oklahoma v. Zeldin, No. 25-9548, leaves the EPA’s May 2025 decision in place.

The case turns on Section 10211(a) of a 2005 federal transportation law. The opinion says the provision “came to be known as the ‘Midnight Rider,’ because it was added last minute and without discussion.” Oklahoma made its request several weeks after the U.S. Supreme Court’s 2020 McGirt decision, the opinion says. The programs fall under six federal environmental statutes, including the Clean Air, Clean Water and Safe Drinking Water acts.

The EPA approved the request Oct. 1, 2020. After 16 Oklahoma Tribal Nations, including the Pawnee Nation, petitioned the agency in March 2021 to revisit that decision, the EPA began a second Tribal consultation process, according to the opinion. In January 2025 the agency withdrew the 2020 decision and approved the request with a state-Tribal engagement condition, then issued a May 2025 approval without the condition. The Nation challenged the May decision.

The Nation argued that the provision expired in 2009 and that the EPA should have kept the condition, which required Oklahoma to follow Tribal engagement protocols such as notice, conferral and reporting to affected Tribes. The majority rejected those arguments, concluding the provision “remains active and did not expire in 2009” and that the EPA could not attach conditions once the statutory requirements were met.

Judge Tymkovich wrote for the majority and a separate concurrence. Judge Federico dissented, writing that “EPA does have the discretion and authority to impose at least some tribal-protective conditions” when applying the provision. “Because EPA concluded otherwise, I would grant Pawnee Nation’s petition and remand back to EPA to reconsider its agency decision,” he wrote.

The opinion quotes the EPA as saying the agency’s “ordinary statutory and regulatory authorities to oversee and review state programs will continue to apply.” It describes Oklahoma’s request as seeking to restore the pre-McGirt scope of its programs, not expand it, and as excluding categories of land already understood to be Indian country before McGirt, such as Indian allotments and Tribal trust lands. The opinion also notes that in November 2004 the EPA granted the Pawnee Nation’s application for treatment as a state to administer regulatory programs on Tribal trust lands under the Clean Water Act.

Oklahoma Gov. Kevin Stitt called the ruling “a clear victory for all four million Oklahomans, the state of Oklahoma, and the rule of law” in a statement dated Oct. 20.