Last week, the Senate Appropriations Committee released its Fiscal Year 2021 bill to fund the Department of the Interior. Several provisions of the Senate bill are important to note since they could have big impacts on preservation policy.

Strong Support for Preservation Programs in Both House and Senate:

• The Senate bill includes a big increase for the Historic Preservation Fund (HPF) — $19.34 million over last year’s level, for a total of $138 million. This increase is even more generous than the House of Representatives proposal of $136.425 million.
• Both chambers continue supporting increases for the National Endowment for the Humanities (NEH) and the National Endowment for the Arts (NEA), programs which the President’s budget had proposed cutting entirely. The Senate bill provides $162.25 million for each (the same amount as last year), and the House bill provides $170 million for each.
• Save America’s Treasures, funding for which was suspended from 2011 until 2016, received strong support from the Senate Appropriations Committee. They provided $16.5 million, an increase of $.5 million over last year. In contrast, the House bill provided $25 million. The Save America’s Treasures program, established in 1998, is managed by the National Park Service in partnership with the Institute of Museum and Library Services, the NEA, and the NEH, with the objective of preserving nationally significant historic properties and museum collections for future generations of Americans.
• In preparation for the country’s upcoming Semiquincentennial celebration, the Committee is creating a new, $10 million competitive grant program within the HPF to support restoration of State-owned historic sites and structures that honor and interpret the country’s founding, including Revolutionary War battle and commemorative monuments.
• The House and Senate Appropriations Committees allocated $7.4 million to the Advisory Council on Historic Preservation, an increase of $22,000.

Cautionary Notes on Actions Taken By the Trump Administration:

• The Senate Appropriations Committee expressed its concern with the National Park Service’s plan to modify the rule governing how properties are nominated for inclusion on the National Register. They noted that the Department failed to complete meaningful government-to-government consultation with tribes. Before implementing the rule, the Committee said that it expects the National Park Service to consult with tribes, Federal land management agencies, State and tribal historic preservation offices, and other stakeholders. The Coalition expressed these same concerns in our comment letter to the NPS and in subsequent meetings with the Office of Information and Regulatory Affairs.
• The Senate Appropriators noted the Trump Administration’s failure to provide a list of land acquisition projects. This list is required by the Great American Outdoors Act, a new law that permanently provides $900 million in annual funding for the Land and Water Conservation Fund. The monies help the federal government acquire new land for parks and trails, which often include historic resources.
• The Senate Appropriations Committee issued a reminder that oil and gas leasing within the 10-miles radius of Chaco Canyon should wait until tribes complete their investigations into culturally and historically significant areas and sites in places with high energy development potential. The Coalition for American Heritage signed a letter supporting legislation that would provide permanent withdrawal of 316,000 acres of federal lands surrounding Chaco Canyon.

Ongoing Efforts to Promote Diversity in the Sites and Stories We Honor:

• Strong support continues in both chambers for grants to protect and preserve the history and sites associated with the Civil Rights movement. The Senate bill provides $20.75 million in FY 21 and the House bill provides $22.25 million.
• In its Explanatory Statement, the Senate Appropriations Committee notes that the Civil Rights grant monies can also be used for recently discovered sites and stories of the transatlantic slave trade.
• The Committee encouraged NEH to provide support to projects that focus on our Nation’s history and culture, including Russian orthodox sacred sites and churches listed on the National Register of Historic places in need of restoration. The Committee also urged the Endowment to consider applications which focus on the complex and historically significant narratives of communities tied to recently discovered sites of the transatlantic slave trade, such as the Clotilda, the last known slave ship to arrive in the United States. Earlier this year, the Coalition for American Heritage submitted a letter in support of legislation recognizing the importance of the Clotilda.

Next, representatives from each chamber will negotiate differences between the House and Senate versions of the appropriations bill. A final version of the bill will need to pass both chambers before it can be signed into law by the President.

The Coalition for American Heritage weighed in with the U.S. Forest Service (USFS) on the proposed changes to regulations governing Federal oil and gas resources on National Forest System lands. In a comment letter to the agency, the Coalition warned that the changes could:

• reduce the level of environmental review of many proposed actions involving Forest Service land, 
• decrease the opportunities for public input and scrutiny of the Forest Service’s decisions under the National Historic Preservation Act and the National Environmental Policy Act, and
• imperil cultural resources located on Forest Service lands.

The Coalition also reminded the USFS that many Native American tribes have important ties to Forest Service lands. It is concerning, therefore, that the agency failed to conduct meaningful consultation with tribes in developing this proposed rule.

While the Proposed Rule seeks to reduce the backlog of expressions of interest and increase oil and gas leases, the Coalition believes that the solution is to improve the review process, not eliminate certain environmental requirements altogether. Coalition members often see environmental and cultural resources regulations blamed for delays, when in reality, staffing has been reduced or agency processes are otherwise insufficient for reviewing the number of oil and gas projects under their purview. 

For additional details, read the Coalition letter here. 

The Coalition for American Heritage invites all members to share which preservation topics most concern you. Results from the membership survey will help determine the Coalition’s advocacy efforts in the upcoming year. Take this opportunity to let us know what your top priorities are!

Share your thoughts at: https://www.surveymonkey.com/r/GKSWL2J

Read our newsletter for details on how the Coalition sent surveys to every candidate running for Congress this year. We asked them about the most pressing issues in historic preservation policy. See if your local candidates have responded! Read here for additional information.

On July 15, the Council on Environmental Quality (CEQ) unveiled its final revisions to regulations that will govern how, going forward, CEQ will implement the National Environmental Policy Act (NEPA). Each agency will now have to revise its own regulations for implementing NEPA so their agency-specific regulations are consistent with the new CEQ regulations. The Coalition for American Heritage has followed the development of these changes closely, and we expressed our concerns about the new regulations repeatedly throughout the rule-making process. Here, we assess how this final rule could impact historic and cultural resources, and we provide opportunities for action.

Most important, these new regulations will limit consideration of effects on historic properties in the NEPA review process. Classes of federal actions are now exempt from NEPA review and the types of project effects that are examined during the NEPA review process are now restricted. By removing classes of projects and types of impacts from NEPA review, the new regulations will restrict and reduce the consideration of historic properties in project decision making overall.

NEPA’s review process has long provided the public, including local stakeholders and Indian Tribes, with an opportunity to voice concerns about federal actions and projects. The opportunity for the public to review and comment on these actions and projects is the underpinning of the NEPA process. These concerns could be related to contamination of water sources, impacts to minority and underserved communities, destruction of cultural resources, or other environmental and social impacts. Under this new rule, CEQ significantly expedites the NEPA review process, bypassing or reducing time to implement many of the steps that allowed agencies to listen to, address, and remedy public objections to a project’s impacts.

The following are our top five concerns about CEQ’s new rule for implementing NEPA.

1. Fewer actions will be subject to NEPA review, because the new rule changes the definition of what activities warrant regulatory scrutiny.

The new rule eliminates classes of federal actions from NEPA review because they do not meet the new “threshold” requirements to undergo a NEPA review. First, CEQ now directs agencies to exclude projects with “minimal federal funding” or projects “where the agency does not exercise sufficient control” from review. (See §1508.1(q)). Because they do not define “minimal” or “control,” this revision will give agencies with wide latitude to define “minimal” and “control” without any public scrutiny, which will likely lead to litigation.

Second, agencies can also decide to exclude projects from NEPA review if they determine another process or statute will cover any concerns raised by stakeholders, or if they decide NEPA would conflict with another law that governs the project, again without any public input or scrutiny. (See § 1501.1). While this change may appear to enhance efficiency, in practice it gives agencies unilateral discretion over which projects merit review under NEPA. These changes clearly limit the projects subject to NEPA assessment and—particularly relevant to historic and cultural resources—those that would incorporate opportunities for the public to raise concerns about impacts on historic properties, as well as environmental and community impacts.

2. The new rule makes it more difficult for the public to raise concerns about a project’s effects on their community.

On top of the additional barriers to projects entering the NEPA review process, the new rule restricts the public’s ability to add its voice to or engage in the review process itself, once it is underway. This restriction emerges from a number of changes, including imposing arbitrary timelines that would significantly reduce comment periods. (See § 1501.10(b)(1-2)). Often, meaningful consultation with stakeholders and Tribes takes time, and time limits mean that agencies will be tempted to skip or shortchange steps in the process. In addition, the new rule limits the public’s ability to comment on the purpose and need of a project, restricting the type of input to a project’s design plans or outcomes. (See § 1503.1).

Finally, if public constituents miss these narrow windows to comment on the project, the new rule prohibits them from pursuing litigation in court at a later date. Furthermore, even those who are eligible to bring a claim after participating in the comment process may have to put up money to access to the court system, as the new rule encourages the use of bonds in any ensuing litigation. (See § 1500.3). Again, these additional burdens could entirely exclude some communities from raising objections or encouraging alternatives for projects that might minimize impacts to historic properties. They will also exacerbate the risks that many marginalized communities face due to environmental hazards, obstructing their ability to bring legitimate claims before the court and pursue environmental justice.

3. The new rule limits the types of effects agencies can consider.

Even if agencies determine a project qualifies for NEPA review, the new rule significantly limits the analysis  of a project’s effects on the environment. By revising the definition of effects, CEQ effectively excludes any impacts from consideration that do not occur as a direct result of the project or in its immediate vicinity. (See §1508.1 (g)).

Under the new rule, effects are not considered significant if they are remote in time, geographically remote, or the product of a lengthy causal chain. These types of effects can result in adverse impacts to historic properties. For example, a federal action whose purpose and need includes regional economic development may result in impacts to historic properties in the locations of the resulting development. In addition, under the new rule, a “but for” causal relationship is insufficient to make a federal agency responsible for a particular effect under NEPA. As a result, the full range of impacts resulting from of a private development which cannot proceed “but for” receiving a federal permit or approval (that is, the project would not take place without the federal approval or permit) will not be examined under the NEPA review process. The NEPA review will only consider the narrow location of the federal approval or permit, and not the entire private project, which may have adverse impacts on historic properties. 

4. When considering alternative plans to mitigate a project’s risks to the environment or historic properties, agencies can only assess a “reasonable number.”

The new rule also places an ill-defined and arbitrary limit on the number of alternatives that agencies can analyze. (See § 1502.14). Consideration of alternatives is important for identifying options that reduce impacts to cultural resources.  By limiting agencies to a “reasonable number” of alternatives, CEQ unnecessarily restricts agencies to an arbitrary set of possible solutions.

This new rule also limits the public’s ability to comment on these alternatives, curtailing what should be a robust review that takes into consideration stakeholder concerns. (See § 1500.3 (b)). Placing such a restriction will limit the agencies in their effort to avoid or minimize effects to historic and cultural resources.

5. Ultimately, the new rule introduces confusing new terms that will invite litigation and delay projects, the opposite of what the Administration says it intends to do.

Because of the ambiguity in certain terms contained in the new rule, the arbitrary discretion given to agencies, and an accelerated timeline for NEPA review that will create inevitable mistakes and omissions, these regulations are bound to result in extensive litigation. More litigation creates further project delays. NEPA now has fifty years’ worth of case law interpreting the statute and its regulations. These proposed regulations toss that case law—and all of the existing CEQ guidance—away.

Indeed, these regulatory changes will not only impact communities and the natural and cultural resources they value, but they will impact and impair industry. Industry groups will now lose the predictability that was previously afforded projects from clear regulatory processes, and the ability to rely on the public input process to surface and resolve concerns about a project early in a project’s development.

Recommended Response to Projects Under New Regulations

There are, of course, other changes to the regulations that impact the preservation of historic properties. Cumulatively, each of the changes we have listed here will severely limit the public’s ability to comment on projects and alert agencies and private developers to impacts on historic and cultural resources, the environment, and communities. The next question is where we can go from here to continue to protect historic properties.

The new rule begins to apply to all projects undergoing NEPA review on September 14, 2020, but agencies can now utilize the new rule voluntarily. This distinction is important, because communities can continue to engage with agencies using the old rule, reminding agencies that they do not have to apply the new rule until September 14 and that they will also likely come under challenge through litigation. The old rule remains the more reliable, legally sound procedure, tried and tested under 50 years of case law.

In short, until September 14, communities can strategically pressure the agencies to continue applying the old rule to both new projects, as well as projects where NEPA review has already begun. Communities should notify litigators when agencies attempt to apply the new rule prematurely. With regard to projects currently in litigation, agencies do not have grounds to say the implementation of the new rule leaves no legal remedy for these projects. The violations being litigated occurred before the new rule applied, and the agencies violated the applicable law at the time: the previous CEQ rule, which has 50 years of case law on which to stand.

Impacted communities should also become proactive about fact finding. Stakeholders can inform themselves about new project developments through multiple avenues, including accessing public records, FOIA requests, and initiating outreach to agencies. Once again, we expect litigation challenging these new regulations to ensue quickly.

Take Action to Oppose NEPA Regulatory Rollbacks

We encourage members to take action on this critical issue by contacting their members of Congress. Use our helpful tips in e-mailing your Congressional representatives:

• To identify who represents you in Congress, check https://heritagecoalition.org/find-your-members/.
• Visit your member’s website and look for a “Contact Me” tab that enables you to send an email directly to his/her office.
• If you prefer to call, the Capitol switchboard is 202-224-3121 and you can ask them to connect you to your Member’s office.
• Share your home address so that the Member of Congress can confirm that you are a constituent.
• In your message, provide a short explanation of how the NEPA regulatory rollback will likely impact your work and why you care about the issue. (It’s okay to use the same message in contacting your representative and both of our senators.)
• Ask your Representative to cosponsor HConRes 89, legislation that asks the Trump Administration to reverse ongoing administrative actions to weaken NEPA and its protections for American communities.

Communities can stay informed of developments through the Coalition for American Heritage’s website (www.heritagecoalition.org). To sign up for the Coalition’s e-newsletter, join as an individual member at https://heritagecoalition.org/for-individuals/. Follow the Coalition’s work on social media (LinkedIn or @heritagecoalition on Facebook and Twitter).