How the Permitting Bill Threatens our Historic and Cultural Sites

Just over 60 years ago, President Lyndon B. Johnson signed the National Historic Preservation Act (NHPA) into law. The premise was simple: we need to build in such a way that new projects and our most significant historical sites can coexist. For over half a century, the NHPA has proven that we can protect the special places intrinsic to America’s DNA, like the African Burial Ground in New York, or the Crow Canyon Petroglyphs in New Mexico, and build new projects that keep our country moving forward. But federal attacks on NHPA regulations and the recently released Bipartisan American Affordability and Jobs Act (BAAJA) threaten to overthrow that delicate balance, and Tribal Nations are sounding the alarm.  

Section 106 is at the heart of the NHPA, requiring the federal government to work directly with Tribal Nations, states, and stakeholders on the ground who have knowledge of an area’s cultural and historical significance as it considers projects that would impact those sites. The NHPA also affirmatively requires federal agencies to engage in government-to-government consultation with Tribal Nations during each step of the Section 106 process. This cooperative process allows those experts to highlight potential issues and identify alternatives early in the process. Done correctly, the NHPA ensures projects can move forward while historic and cultural sites are protected.   

Threats to the NHPA – and the historic places throughout the country that it protects – began earlier this year. In July, the Advisory Council on Historic Preservation, which oversees NHPA implementation, advanced sweeping draft regulatory revisions that would make Tribal consultation and public participation largely optional, limit which culturally important places could be protected, and allow the federal government to ignore many types of harms caused by projects. Then, Senate negotiators released BAAJA, which would codify many of the draft regulation’s most troubling proposals. While the Advisory Council’s proposal could be challenged in court or reversed by a future administration, the permitting bill would set those provisions in stone. In some instances, the bill would go even further than the regulations to eliminate protections for historic places. Consequently, the National Congress of American Indians, National Association of Tribal Historic Preservation Officers, Native American Rights Fund, and many Tribal Nations have called on Congress to reject the bill’s NHPA title 

Below, we break down how BAAJA would gut the NHPA.  

• It would eliminate meaningful Tribal consultation. BAAJA would make consultation with Tribal Nations and other interested parties optional during the critical early stages of a proposal. Only after an agency has developed a report covering the project and its potential impacts would it be required to provide that information. Early consultation allows Tribal Nations and other entities to inform decision-makers of potential conflicts with a proposed project, identify cultural resources that the agency may not be aware of, and help develop alternatives that could potentially avoid impacts to cultural resources. BAAJA would leave whether to conduct early and meaningful consultation entirely up to an agency’s discretion. And if an agency determines that there will be no adverse effects caused by a project, it never has to consult at all. 

• It would limit what types of projects must go through the Section 106 process and what places would qualify as culturally important. BAAJA limits federal “undertakings” to projects that are determined to be subject to “substantial Federal control and responsibility,” without defining that term. It also explicitly excludes nine categories of projects entirely, including where the Federal government is “only” providing funding. The bill would also restrict properties of traditional religious and cultural importance to places where an important “event … occurred,” including “building[s], structure[s], or object[s].” While it is unclear how courts may interpret this sprawling definition, it appears designed to limit which cultural sites can be protected and gives the federal government – not Tribal Nations – the final say over what properties are culturally significant enough to qualify.  

• It would limit what harms to historic and cultural places agencies can consider under the Section 106 process. The bill specifies that “adverse effects” must be “reasonably foreseeable,” which may exclude all consideration of indirect or cumulative impacts. Agencies also would not be allowed to consider “visual, atmospheric, or audible” impacts unless they would cause a “direct impact on a historic property that would significantly dimmish [its] eligible characteristics,” or “temporary” impacts, with no apparent limit on how much time counts as “temporary. Finally, even if significant adverse effects are identified, BAAJA provides federal agencies with a new authority to simply claim that “other considerations outweigh” those impacts and advance the project. Altogether, fewer projects would be subject to Section 106 consultation, and for those that do go through the process, many impacts would be disregarded. 

• It would impose strict requirements and punishments on Tribal and State Historic Preservation Officers. Under BAAJA, Tribal Historic Preservation Officers (THPOs) and State Historic Preservation Officers (SHPOs) would be under rigid deadlines, having just 30 days to respond if an agency chooses to conduct early consultation, and no more than 90 days to provide comment on an agency’s Section 106 report. While THPOs and SHPOs regularly engage in consultation quickly, meaningful consultation can require more time than such fast deadlines might allow. The bill would also allow the Secretary of the Interior to suspend funding and seize the functions of THPOs and SHPOs if these new deadlines are missed. We already know that delays in the consultation process often come from factors outside of these officers’ control, such as evolving submissions or incomplete information. Penalizing offices for missing arbitrary deadlines is as much of a coercive threat as it is unfair. To add insult to injury, the bill provides no mandatory funding to the Historic Preservation Fund, meaning THPOs and SHPOs would continue to be subject to shifting political winds for the resources they need to operate. 

• It would all but eliminate the ability of harmed communities to challenge faulty decisions. BAAJA makes a series of changes that would make it significantly harder to challenge unlawful Section 106 reviews. It would shrink the statute of limitations to as little as 150 days, limiting the time Tribal Nations and other parties have to discover a potential violation, obtain legal counsel, and file a challenge. It would also require courts to afford agencies “substantial deference” and prohibits courts from substituting their judgment for that of the agency’s, meaning poor agency decisions may prevail even when it is likely that the agency made significant errors. And finally, BAAJA would prohibit judges from vacating legally deficient authorizations or issuing an injunction to stop a project pursuant to the NHPA, even though agency decisions under the NHPA are rarely litigated. One recent review of the more than 120,000 federal undertakings every year found that an average of just 8 undertakings are challenged under an NHPA lawsuit. This should be celebrated as a sign of how the NHPA successfully resolves countless conflicts without parties ever needing to resort to litigation. Instead, the bill makes it exceedingly difficult if not impossible for plaintiffs in those rare circumstances of egregious agency actions to ever receive justice. 

For 60 years, the NHPA has guided responsible development across our country. Now, BAAJA threatens Tribal sovereignty and tries to take a sledgehammer to a process that has allowed us to preserve and protect countless meaningful places in America. Tribal Nations are demanding that Congress work with them to ensure permitting reform does not come at the expense of Tribal consultation and sacred sites. Congress should listen.