Weighing Tribal authorities to combat carbon pollution

The questions come up: Do Treaty rights apply to carbon removal? Do co-management and Tribal delegated authorities enable Tribes to regulate projects directly? A few legal scholars and tribal leaders have suggested variants of these ideas. 

To be clear, exactly how 19th Century treaties may pertain to CO2 management is still debated. As a field, carbon emissions cleanup is young, so it is still largely governed under statutes built for other purposes. 

As the volume of cleanup activity grows, the need to define purpose-built governing rules is rising, both in Indian Country and beyond. The two briefs we share here offer an initial scan of some options for Tribes as they consider building their own guardrails and permitting programs. Tribes have multiple tools they can use to protect their lands and communities, support emissions-cleanup approaches they find useful, or fend off projects that look like trouble.  

If validated, a Treaty habitat right might position Tribes to expedite or drive federal investment in emissions cleanup projects that help to protect or restore treaty resources eroded by CO2-driven environmental impacts. That could include warming, ocean acidification, marine oxygen depletion, or knock-on effects such as altered flow regimes in salmon rivers. 

Less wide-reaching powers under co-management or delegated statutory authorities could enable some Tribes to regulate projects within their own lands and waters—including carbon removal projects. One of example of delegated authority is clearcut but still relatively rare. Navajo and Fort Peck have obtained “primacy" under the Safe Drinking Water Act to regulate wells that inject CO2 into the ground to enhance oil recovery, a process that incidentally sequesters some of the gas in geologic formations (and can sometimes earn a tax credit for doing so). Separately, Navajo and MHA Nation in 2023 won EPA funding to develop their own regulatory programs to oversee wells that inject CO2 specifically for geologic storage (Class VI wells). Some other potential applications, particularly in marine carbon removal, would be novel.

We drafted two concept briefs to explore some of these avenues, and we post them here to invite further review and critique. We welcome suggestions especially on practical constraints, potential pathways we may have missed, and limitations of these approaches.

Restoring Atlantic Salmon Spurs Carbon Firm

Restoration efforts that locally counteract acidification are already common in salmon-bearing rivers in New England and Atlantic Canada, using crushed limestone to buffer fish-menacing acids unleashed by pollution. As it washes into the sea, the rock dust can also bind CO2 for thousands of years. Thus salmon restoration has spawned a Nova Scotia firm, CarbonRun, that couples fish protection with carbon removal. CarbonRun struck its first deal to sell carbon removal credits in 2024, with a $25.4 million purchase by Frontier, a consortium of corporate carbon-removal buyers that invest in “high-quality” long-lasting removals.