By: Jesse Ward
Volume X – Issue I – Fall 2024
I. INTRODUCTION
Amidst a changing climate and global economy, balancing history and heritage with progress is a pressing challenge for any country, including the United States. How can the nation take care of its historic resources without hindering technological advancement? Historic preservation law, the legal framework that protects valuable historic buildings, objects, structures, and lands, is critical to that balance, and relies on one federal statute. In 1966, the United States Congress passed the single most important federal legislation about the past: the National Historic Preservation Actor NHPA. According to the law, projects by the federal government or that use federal funds and affect historically significant structures have to undergo review on their level of harm and mitigation efforts. [1]
Nearly sixty years later, the act still influences how large projects such as infrastructure developments move forward. In August of 2024, the federal Advisory Council on Historic Preservation released a “Draft Program Comment on Accessible, Climate-Resilient, and Connected Communities,” aiming to create an alternative to the NHPA review process for housing, climate-smart buildings, and climate-friendly transportation projects. This was emphasized as part of an effort to reduce energy use, improve resilience, and decarbonize transportation. [2] Program comments and other alternatives to NHPA review have been scrutinized in the past. However, this Draft Program Comment has faced significant challenges and criticisms due to its broad and unprecedented nature. It raises questions about the intentions behind the NHPA, the role of the ACHP, and how historic preservation law and protecting the environment can coexist.
II. THE NATIONAL HISTORIC PRESERVATION ACT AND SECTION 106
In the wake of urban renewal and massive change in American cities during the mid-20th century, Congress decided that there had to be a clear process for preservation of history. [3] The sweeping National Historic Preservation Act (NHPA) passed in 1966 with several notable provisions. It established federal policy on preservation as well as the National Register of Historic Places. [4] Chapter 3023 outlines the process of creating State Historic Preservation programs and the critical responsibilities of State Historic Preservation Officers (SHPOs). SHPOs are responsible for long-range preservation planning, conducting surveys of historic property, nominating properties to the National Register, and advising local governments on matters of preservation, among other tasks. Importantly, they must consult with Federal agencies on federal undertakings that may affect historic property, assessing plans to protect, manage, or mitigate harm. [5]
At a federal level, a key provision of the NHPA was the creation of the Advisory Council on Historic Preservation (ACHP). The NHPA defines the Council as an independent agency of the United States Government that advises the President and Congress on historic preservation. Other duties include encouraging public interest, education, and participation in preservation and coordinating between all levels of agencies. A key task is to review preservation-related policies and programs of Federal agencies, recommending methods to improve the effectiveness, coordination, and consistency of those policies. [6] In many ways, the ACHP serves as a federal body that oversees implementation of the NHPA and promotes participation and interest in historic preservation in the United States.
Yet, the most well-known and significant part of the NHPA is referred to as Section 106, which involves consideration of preservation. Similarly to the National Environmental Policy Act, which encourages federal agencies to consider the environmental impacts of their actions, the NHPA encourages federal agencies to consider the effects of projects they carry out, approve, or fund on historic properties or structures. More specifically, Section 106 of the NHPA states that prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, the appropriate head of the federal agency shall take into account any effects on historic property. Additionally, that agency leader shall afford the ACHP a reasonable opportunity to comment. [7]
When it is determined that their actions or projects fall under NHPA, agencies are not required to come to a specific conclusion such as stopping a project. The review process only involves the following procedural requirements: notifying appropriate consulting parties, gathering information on properties in the affected area under the National Register, assessing the effects of their undertaking on these resources, determining “adverse effects,” and resolving these effects by developing alternatives in a legally binding agreement. [8]
III. ALTERNATIVES TO SECTION 106
Understandably, Section 106 can get in the way of significant federally funded and initiated projects. Procedural requirements such as gathering information, allowing for public comments, and conducting consultation are time-consuming. Some scholars argue the ambiguity of the statute’s scope and interpretable definition of “undertaking” lead to illegal segmenting of projects to produce less noticeable impacts. [9] The Section 106 process can also poke holes in projects, providing project opponents with evidence and the opportunity to stall. There have been numerous lawsuits which cite the NHPA and Section 106, and even when the decision is in the agency’s favor, the suit itself can become an unnecessary step. An illustrative example of these ideas is found in Save Our Heritage, Inc. v. Federal Aviation Administration, in which preservationists petitioned the FAA’s permitting of an airline to add flights without properly considering adverse effects or following Section 106. The petition was ultimately denied, as the agency had conducted its own studies and found no adverse effects. Judge Boudin’s majority opinion referenced ACHP regulations on Section 106: “If adverse effects are established, even more complex steps are entailed. Understandably, agencies are loath to submit to this cumbersome process…” [10]
Thanks to a categorical exclusion at the time, the FAA was able to dodge consultation and Section 106 with its studies. Exclusions are not uncommon: since the ACHP can issue regulations related to Section 106, it has used this power to create methods for speeding up the process called program alternatives. The ACHP defines these alternatives as ways for agencies to tailor the Section 106 review process for a group of undertakings or an entire program that may affect historic properties in order to improve the efficiency of Section 106 reviews and streamline “routine interactions.” [11] They are to be considered when an agency will carry out a repeated undertaking, when it is more efficient to group properties together, or when fitting the review process to specific agencies. [12]
Of these program alternatives, the most notable to this discussion are Program Comments, which identify a category of agency undertakings. They allow the ACHP to issue comments in the place of a case-by-case approach by providing a broad response to expected adverse effects. Importantly, the ACHP emphasizes in its regulations that this alternative can be created by the ACHP itself or requested by a specific agency. [13] In general, Program Comments include a public participation process, which an agency is typically responsible for, followed by a formal request, which the ACHP uses to consult with SHPOs or Tribal Historic Preservation Officers (THPOs). Finally, if the Comment is issued, the agency will publish a notice in the Federal Register. [14] Past examples include a 2010 Comment for evaluating the disposal of inactive Navy vessels, requested by the U.S. Navy, or a 2012 Comment for altering post-1945 concrete and steel bridges requested by the Federal Highway Administration. [15] These Comments, which can save agencies tens of millions of dollars each, explain how these agencies are still complying with the NHPA by identifying and considering effects on historic properties.
IV. PROPOSED PROGRAM COMMENT
On August 8, 2024, the ACHP announced its Draft Program Comment on Accessible, Climate- Resilient, Connected Communities. The proposed Draft Program Comment is part of an effort to support President Biden’s Investing in America agenda. It would aid federal agencies in complying with Section 106 of the NHPA, streamlining preservation review for certain projects. [16] The government-wide Comment would affect three major sectors: housing, climate-smart buildings, and climate-friendly transportation.
When it comes to housing, the Draft Comment mentions the work of the Department of Housing and Urban Development (HUD), which spends $9 billion per year on dated units, as well as the housing provided by the Department of Defense and Department of Agriculture. [17] In order to streamline the review of projects related to housing, a multitude of agency activities affecting housing would no longer require Section 106 review, either after the satisfaction of conditions and requirements, or altogether. These include most landscaping activities, rehabilitation of much of the exterior built environment, some interior and exterior renovations, hazardous materials, energy audits, and electrification. [18]
Climate-smart building practices affected by the NHPA include federal projects to finance zero emissions building projects, perform energy upgrades in federal buildings, and invest in electrification and energy upgrades in HUD-assisted housing. [19] Similarly to housing, this sector’s work would be streamlined under this Program Comment by eliminating or easing Section 106 review for several types of activities related to reducing buildings’ energy use or greenhouse gas emissions. These activities include typical site work such as landscaping, rehabilitation of non-historic outdoor features, exterior renovations, clean energy technologies, and electrification of buildings. [20] The ACHP states that this Comment will accelerate energy savings by allowing installation of solar panels on and electrification of historic buildings, working toward the Biden-Harris Administration’s goal of zero emissions from buildings. [21]
The third sector, climate-friendly transportation, spans many agencies including the Department of Transportation, HUD, and the Environmental Protection Agency. Affected activities include billions in public transit investments, as well as significant funding for trails, bike infrastructure, and low-carbon transportation construction materials. [22] Little to no further review would be required for agency activities like construction related to transit, pedestrians, and bicycles and work on bridges that do not serve automobiles. [23] The ACHP argues that loosening the review process allows more people to access safe streets, transit, and new modes of transportation, in addition to saving the Department of Transportation over ten billion dollars. [24]
Of course, the Draft Program Comment is more specific about these exemptions and conditions, for example, by making sure that street furniture activities do not displace historic objects. Many of these exemptions only apply to non-historic places. Nevertheless, the Comment comes across as sweeping and bold. To offer some justification and background for this Comment, the ACHP provided past examples where it issued Section 106 alternatives in each of these three economic sectors. It also offered that by clarifying the “preferred approaches” for these climate-friendly undertakings, agencies could instead spend more time reviewing undertakings with truly harmful impacts. [25]
V. CRITICISMS
Public comment ended for this Draft Program Comment on October 9th, 2024, at which point numerous organizations and citizens had submitted their frustrations. An immediate, and shared concern among many was that the Program Comment failed to align with the general intent and goals behind the NHPA. In a response, the National Conference of State Historic Preservation Officers (NCSHPO) wrote the Comment “should seek to harmonize, not subvert historic preservation, with other policy goals.” They asserted that instead of preserving the nation’s historical and cultural foundations, the Comment attempts to bypass preservation in favor of outside policies. [26] This is a fair point, considering the ACHP explicitly outlines how the Comment works toward the climate agenda of the Biden-Harris Administration. The NHPA’s definition of the Council as an independent agency advising the President and Congress on preservation strengthens this argument: preservation should be the top priority, not aligning itself with external policy goals.
A key related concern of the American Cultural Resources Association (ACRA), a network of cultural resource management companies, was that the Council has never issued a Program Comment of its own volition. Indeed, the ACHP’s self-issued regulations give it the power to initiate a Program Comment, but state that the Council may “provide” Program Comments, and repeatedly refer to the role of the “agency official” in the process. [27] The ACRA’s concern was that due to the unprecedented nature of this Comment, it should involve more care, time, and consultation, which does not appear to be the case. [28] While the ACHP utilized examples of past Comments to justify this one, they were all examples of a federal agency requesting a tailored review approach. On a similar note, multiple organizations noted that the broad scope of the draft only adds confusion to the Section 106 process for all undertakings rather than taking it away for “sustainable” ones. [29]
An additional common argument was that the Program Comment neglected the importance of SHPO, tribal, and public consultation in the Section 106 and preservation process. A critical part of the NHPA is its provision on SHPOs. These state officials are meant to consult with federal agencies on federal undertakings and plans affecting historic property. [30] In its response to the ACHP, the NCSHPO argued that state and local level consultation is a “fundamental pillar” of historic preservation that is ignored by this draft Comment. By applying the judgment of federal agencies such as the ACHP in place of that consultation, not only are the complex consultation structures of the NHPA bypassed, but decades of functional preservation practices are as well. [31] It is important to note that while public consultation can be seen as a hindrance to progress, it is intended to prevent future conflicts, mishaps, and oversights. When done correctly, taking advantage of statutes such as the NHPA should be seen as an asset instead of a barrier for federal agencies.
One could argue that these concerns are less about the August Draft Program Comment and more about Program Comments or Section 106 alternatives in general. In a particularly critical response, the Society for American Archaeology argued the Program Comment, and others like it, would be illegal. Their reasoning was that this Comment violated the NHPA by ignoring the public consultation provisions. However, they added that it was an example of “extra-legislative activity” with which the Supreme Court was concerned in the recent Loper Bright Enterprises v. Raimondo decision, determining that courts must not always defer to agency authority. “The ACHP provided itself with the authority to issue program comments…without any such authorization or direction from Congress,” the SAA asserted. [32] While this argument blurs the focus to a larger discussion about the ACHP and administrative law, it raises a good point. Does this Program Comment go beyond the ACHP’s legal authority to promulgate regulations considered necessary to govern the NHPA?[33] According to the SAA, the answer is undeniably yes, it does.
VI. DISCUSSION
Although based on these discussions and concerns, it would appear that ideas of historic preservation and progress in sustainable development are contradictory, that is not necessarily true. On a surface level, Section 106 makes technological and sustainable progress more difficult. Yet, it is important to remember that its goal is not to stop projects or become a roadblock. Instead, the NHPA, and ACHP by extension, are meant to encourage responsibility for and interest in the nation’s history. By keeping projects from destroying existing resources and encouraging care in dealing with those resources, historic preservation is crucial to sustainability. [34] The NHPA encourages the public to be more active in the development of their built environment, and functions hand-in-hand with environmental legislation such as NEPA to ensure that agencies are making researched, calculated decisions.
At the same time, concessions need to be made due to the realities of the NHPA. Although the SAA might argue they violate the NHPA, Section 106 alternatives such as Program Comments are borne out of an effort to achieve the statute’s goals. Congress provided the ACHP with the authority to publish regulations related to the NHPA, and past Program Comments have been successfully published in the Federal Register with little Congressional objection and great success. There are also logical reasons for the ACHP to prioritize sustainability and climate resiliency. While it is monumental, the NHPA is not a perfect statute, and it did not predict or include provisions related to climate projects. The climate is changing quickly, and countless landmarks and historically significant structures are at just as much risk as anywhere else in the nation. As of 2018, eleven percent of all properties listed in the National Register of Historic Places were within five miles of coastline and vulnerable to sea level rise. [35]
It is clear that in its current state, the alignment of this Draft Program Comment with the NHPA is shaky. The most pressing issue is the Comment’s attempt to use federal authority to replace the public and lower-level consultation, which is required by the NHPA. A striking implication of passing the Program Comment is that it could incorrectly communicate the ACHP’s role as regulatory. Dictating exemptions on common actions from multiple agencies without consultation on each exemption from SHPOs or other local parties is not advisory. At the very least, the ACHP should make any streamlining of review for individual sustainable building projects more transparent and subject to state, local, or public opinion. Methods such as tiered exemptions or SHPO consultation on individual exemptions would allow for more effective streamlining of Section 106 review without putting the participatory goals of NHPA at risk.
VII. CONCLUSION
Historic preservation law, while built around one major statute, involves a substantial amount of depth and complexity. Due to the National Historic Preservation Act, heritage and history have had real impacts on federal agency actions, so much so that there are exemptions and alternatives for review under Section 106 of the NHPA. The Advisory Council on Historic Preservation’s role in this process is to advise on a federal level regarding historic preservation policy, which exemptions can put into question.
When it comes to the Comment, organizations such as the ACRA and NCSHPO seem to be in agreement, and present valid arguments about ACHP priorities and the scope of exemptions. Additionally, the Comment has the potential to perpetuate the incorrect notion that regulation related to preservation must be contrary to progress and sustainable development. In reality, consultation, regulation, and careful consideration of history keeps the nation mindful of its existing resources. The Advisory Council on Historic Preservation should reconsider significant portions of its Draft Program Comment on Accessible, Climate-Resilient, Connected Communities. With editing such as more specificity on requirements for exemption or including the much-needed voices of the public, tribes, and state and local government, the ACHP can lawfully and efficiently use Section 106 alternatives as tools in creating a sustainable future.
Endnotes
[1] “National Historic Preservation Act - Historic Preservation (U.S. National Park Service),” Official Government Website, National Park Service, November 1, 2023, https://www.nps.gov/subjects/historicpreservation/national-historic-preservation-act.htm.
[2] “Proposed Program Comment on Accessible, Climate-Resilient, and Connected Communities | Advisory Council on Historic Preservation,” Advisory Council on Historic Preservation, August 8, 2024, https://www.achp.gov/program_alternatives/program_comment/PCs_2024.
[3] “National Historic Preservation Act.”
[4] U.S. Congress, “National Historic Preservation Act,” Pub. L. No. 89–665, § 302101, 54 USC (1966), https://www.law.cornell.edu/uscode/text/54/302101..
[5] U.S. Congress, “National Historic Preservation Act,” Pub. L. No. 89–665, § 302303, 54 USC (1966), https://www.law.cornell.edu/uscode/text/54/302303.
[6] U.S. Congress, “National Historic Preservation Act,” Pub. L. No. 89–665, § 304102, 54 USC (1966), https://www.law.cornell.edu/uscode/text/54/304102.
[7] U.S. Congress, “National Historic Preservation Act,” Pub. L. No. 89–665, § 306108, 54 USC (1966), https://www.law.cornell.edu/uscode/text/54/306108.
[8] “Section 106: National Historic Preservation Act of 1966,” U.S. General Services Administration, accessed October 15, 2024, https://www.gsa.gov/real-estate/historic-preservation/historic-preservation-policy-tools/legislation-policy-and-reports/section-106-of-the-national-historic-preservation-act.
[9] David A. Lewis, “Identifying and Avoiding Conflicts Between Historic Preservation and the Development of Renewable Energy,” NYU Environmental Law Journal 22 (February 2015): 302–4.
[10] Save Our Heritage, Inc. v. FAA, 269 F.3d 49 (U.S. Court of Appeals for the First Circuit 2001).
[11] “Program Alternatives | Advisory Council on Historic Preservation,” Advisory Council on Historic Preservation, accessed October 16, 2024, https://www.achp.gov/program_alternatives.
[12] “Program Alternatives.”
[13] U.S. Government, “36 CFR § 800, Protection of Historic Properties,” 36 CFR § 800.14 (2004), https://www.ecfr.gov/current/title-36/part-800/section-800.14.
[14] U.S. Government.
[15] “Program Comments,” Advisory Council on Historic Preservation, accessed October 15, 2024, https://www.achp.gov/program_alternatives/program_comments.
[16] “ACHP Announces Draft Program Comment on Accessible, Climate-Resilient, Connected Communities,” Official Government Website, Advisory Council on Historic Preservation, August 8, 2024, https://www.achp.gov/news/achp-announces-draft-program-comment-accessible-climate-resilient-connected-communities.
[17] “Draft Program Comment on Accessible, Climate-Resilient, and Connected Communities” (Advisory Council on Historic Preservation, August 8, 2024), 1–2, https://www.achp.gov/sites/default/files/2024-08/ACCCProgramComment.DRAFT%208.8.24.pdf.
[18] “Draft Program Comment,” 21–27.
[19] “Draft Program Comment,” 2.
[20] “Draft Program Comment,” 30–36.
[21] “ACHP Announces.”
[22] “Draft Program Comment,” 2.
[23] “Draft Program Comment,” 37–42.
[24] “ACHP Announces.”
[25] “Draft Program Comment,” 4.
[26] NCSHPO, “Response to ACHP Proposed Program Comment on Accessible, Climate-Resilient, & Connected Communities,” NCSHPO (blog), August 29, 2024, https://ncshpo.org/2024/08/29/ncshpo-response-to-achp-proposed-program-comment-on-accessible-climate-resilient-connected-communities/.
[27] U.S. Government, 36 CFR § 800, Protection of Historic Properties.
[28] Amanda Stratton, “ACRA Comments on Proposed ACHP Program Comment on Climate and Communities” (American Cultural Resources Association, October 8, 2024), https://acra-crm.org/acra-comments-on-proposed-achp-program-comment-on-climate-and-communities/.
[29] Stratton.
[30] U.S. Congress, National Historic Preservation Act, 1966.
[31] NCSHPO, “Response to ACHP.”
[32] Daniel H. Sandweiss, “SAA Final Comments” (Society for American Archaeology, September 20, 2024), https://documents.saa.org/container/docs/default-source/doc-governmentaffairs/final_comments_achp_pc_09202024.pdf?sfvrsn=53f62fae_3.
[33] Sandweiss, “SAA Final Comments.”
[34] “National Historic Preservation Act.”
[35] Kellie King, “Historic Preservation and Sea Level Rise,” Environmental, Social and Governance (ESG) Initiative (blog), July 9, 2021, https://esg.wharton.upenn.edu/news/historic-preservation-and-sea-level-rise/.