Update from Washington: Executive Order on Infrastructure Permitting and Call to Action in Support of the Great American Outdoors Act
Read our June newsletter for an analysis of how President Trump’s June 4th Executive Order could curtail public involvement in the federal permitting process. Get details on how to contact your Congressional delegation in support of the legislation that could protect historic resources across the country. And, sign up for our upcoming webinar, “Election 2020: What’s at Stake for Historic Preservation.”
Read the newsletter here.
New Executive Order Could Curtail Public Involvement in Federal Permitting
President Trump signed an executive order on June 4 directing federal agencies to waive environmental regulations to speed up infrastructure projects under the auspices of responding to the “economic emergency” presented by the COVID-19 pandemic. The good news is that the Order does not attempt to create a blanket waiver of environmental regulations, but is limited to directing agencies to use existing emergency authorities to expedite projects.
Nonetheless, the Coalition for American Heritage has profound concerns that agencies will invoke the Order to limit public involvement in federal projects, to deprive tribes of their rights to government-to-government consultation, and to limit consideration of impacts to heritage resources.
The Executive Order directs agencies to use emergency authorities they already have under the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the Clean Water Act (CWA), and to review all statutes, regulations, and guidance documents that provide emergency or expedited treatment—which includes 36 CFR 800.12. the part of the Section 106 National Historic Preservation Act (NHPA) regulations addressing declared emergencies.
Our concerns include:
· Emergency authorities have traditionally only been used to respond to emergency threats to national security and natural disasters. It is unclear whether existing emergency authorities can be invoked to respond to an economic slowdown.
· The Order does not give an end date or any indication of when the Administration would decide the economic effects of the public health emergency have improved enough to return to the normal course of business.
· Some emergency authorities, such as those in NEPA, do not require public notice that they are being applied. We are concerned that agencies will apply emergency procedures inappropriately, and we will not learn about it in time to object or litigate.
· Invoking emergency authorities when not consistent with existing law will increase litigation risk for infrastructure projects and their proponents, creating uncertainty and delays for projects.
The Order puts considerable pressure on agency heads to expedite projects, requiring that they submit reports in 30 days of how they are using the Order.
Members of Congress have already expressed their disapproval (see Speaker Pelosi’s statement here and Chairman Grijalva’s statement here.) The Coalition will be communicating its concerns to Congress and to the agencies.
You can help: Our greatest strength is our network of advocates across the country. Please let us know when you see agencies attempting to invoke this Order on projects on which you work or on projects you hear about. We need to know how the Order is being applied so that we can formulate the most effective responses.
Please stay tuned for more information.
How Trump’s New Executive Order Will Impact Historic Preservation
On Tuesday, President Trump signed an executive order (EO) directing the heads of every federal agency to “waive, suspend and eliminate” all regulations that they consider unnecessary obstacles to economic recovery from the coronavirus crisis. Whatever changes are made will likely remain in place throughout the remainder of Trump’s term in office. These changes could therefore last eight months, or almost 5 more years, if he is reelected.
What the Executive Order Does:
- Requires agencies to identify regulations that may inhibit the economic recovery from COVID-19 and, within applicable law, take appropriate action to waive, repeal, or modify them.
- Directs agencies to consider using temporary enforcement discretion, such as granting extensions of time for compliance or, possibly, issuing warnings rather than citations for minor violations.
- Directs agencies to review the regulations they have waived or modified directly due to the COVID-19 national emergency and consider whether those actions should be made permanent.
- Establishes “principles of fairness” that should be followed in agency enforcement and adjudication.
Potential Impacts of the Executive Order:
Much of the EO is a continuation of earlier Trump administration policies, which have focused on reducing regulations since the beginning of his term in office. The usual notice and comment process will still apply to regulatory changes except in those areas where agencies can reasonably cite some emergency authority.
Notable Changes:
- The EO directs agencies to use pre-enforcement rulings. Businesses could ask an agency to determine in advance if their proposed conduct is allowable.
- The EO also directs agencies to decline enforcement action if a good-faith effort was made to comply with a requirement or guidance.
- Expanded use of enforcement discretion is provided for as long as the economic recovery from the pandemic lasts, not just while the national emergency remains in effect.
Impact on Historic Preservation:
The Coalition for American Heritage is monitoring how agencies interpret this order, with a special eye on Section 106. If waivers are attempted, we expect that they will be challenged in court. As the situation develops, we’ll keep you posted about the impacts on the preservation field.
Help Preserve Underwater Tribal Heritage
Just under the water off the central coast of California, the submerged homes of the Chumash ancestors remain. A national marine sanctuary has been proposed for the area. However, the nomination may lapse without strong public support. It is subject to a five-year review, intended to ensure that all active nominations remain relevant to the surrounding community and the country as a whole.
To advocate for the importance of underwater archaeology and the significance of the proposed Chumash Heritage National Marine Sanctuary, submit a letter supporting the nomination. The deadline is June 15th. You may also choose to participate in a public meeting on May 27th.
Learn more about the site in the 2015 Chumash Heritage National Marine Sanctuary Nomination.
Coalition Urges Congress to Invest in Historic Preservation, Spur Economic Growth
The Coalition for American Heritage is urging top Congressional leaders to use investments in historic preservation to maintain important government services and spur economic growth. As Congress works to develop another bill aimed at providing relief from the impacts of the COVID-19 pandemic, the Coalition is asking that the legislation:
- avoid creating any legislative exemptions from permitting reviews designed to identify and preserve cultural resources and historic properties;
- provide $120 million for State and Tribal Historic Preservation Offices to enable their work while social distancing policies are in place and support local economic recovery;
- allocate $300 million to existing competitive grant programs in the Historic Preservation Fund (HPF);
- incorporate the recommendations of the Historic Tax Credit Growth and Opportunity Act (S. 2615/HR. 2825); and
- provide additional funding for the national endowments and the Institute of Museum and Library Services.
Incorporating these recommendations into the bill would aid America’s economic recovery by providing targeted funding for existing programs with a proven record of creating jobs and growing local economies. To read a full copy of the letter, click here.
Advocacy Internship – Summer 2020
At Cultural Heritage Partners, we are a mission-driven team committed to practicing law in a way that helps our clients protect and share cultural resources. This summer, we’re looking for an intern who can work remotely to support our team in our public policy advocacy on behalf of the Coalition for American Heritage.
Responsibilities will include:
- Researching the policy positions of candidates for public office
- Assist with advocacy work related to the National Environmental Policy Act and the National Historic Preservation Act
You’re a strong candidate if you:
- Are a law or public policy graduate student with a GPA of 3.0 or higher
- Have a demonstrated interest in historic preservation, public policy and/or political campaigns
- Are a motivated self-starter who can work remotely
- Can be available to work 15 hours per week throughout the summer (dates flexible depending on your schedule)
- Have strong oral and written communication skills that you can adapt depending on your audience
Cultural Heritage Partners is an equal opportunity employer committed to workplace diversity. We practice flexible work schedules, and we expect our intern will work remotely. We commit to providing a professionally supportive and rewarding experience. This position pays $15/hour.
Please submit a resume and a one-page cover letter by May 1 to jobs@culturalheritagepartners.com.
Resources for Businesses and Non-Profits Addressing the COVID 19 Pandemic
The $2 trillion economic stimulus bill passed by Congress makes small businesses, independent contractors, sole-proprietors, and 501c(3) non-profits (including museums, historic sites, independent libraries and scholarly societies) eligible for a “Paycheck Protection Program” from the federal government. Beginning on Friday, banks will accept applications for these monies.
What the Paycheck Protection Program Covers:
The bill, called the Coronoavirus Aid, Relief, and Economic Security (CARES) Act, includes $350 billion to provide 8 weeks of cash-flow assistance via 100% federally-guaranteed loans. If the employer maintains payroll, the portion of the loans used for covered payroll costs, interest on mortgage obligations, rent, and utilities would be forgiven.
It is retroactive to February 15, 2020 to help bring workers who have been laid off already back onto payrolls. The U.S. Department of Labor’s website provides additional details about eligibility and answers to frequently asked questions.
How to Apply for the Paycheck Protection Program:
Banks will begin accepting applications on Friday, April 3rd. If you’d like to apply, please contact your lender as soon as possible to notify him/her that you’ll be submitting an application. Demand is expected to be very high, and it would be prudent to ensure that your paperwork is at the front of the queue. Additional details are available on this Fact Sheet.
Congress Passes $2 Trillion Stimulus – What it Means for Preservation
Congress just voted to pass a $2 trillion stimulus bill aimed at helping our nation deal with the impact of the coronavirus pandemic. Included in the bill are several important provisions that will help preservation efforts, aid museums and historic sites, and benefit cultural resource management firms.
Read our Update from Washington for additional details.
Coronavirus Stimulus Should Honor Nation’s Commitment to Preservation
As Congress debates economic stimulus packages to respond to the coronavirus pandemic, the Coalition for American Heritage reminded key leaders that investments in infrastructure must honor America’s commitment to historic preservation.
The push to revive our economy and put Americans to work should not come at the expense of the public’s right to participate in federal permitting decisions. It is critical that federal projects continue to abide by existing review processes, including Section 106 of the National Historic Preservation Act.
If Congress allows projects to go forward without review, it would result in the loss of heritage resources of social, cultural, and economic value to many communities across the country. Our nation’s 10,000 historic preservation professionals and 1,300 small heritage resource management businesses have demonstrated their ability to quickly advance these reviews, so as to not delay critical infrastructure projects
To read a full copy of our letter, click here.