Trump Administration Targets National Treasures and Public Input

Cultural resources in every state and community, along with treasures in the nation’s capital, are threatened by a new Trump administration proposal that would eviscerate a law that protects our shared patrimony and almost eliminate the public’s role in affecting them. Plans to substantially rewrite a key part of the National Historic Preservation Act (NHPA)—known as Section 106—could not only fast track the administration’s most controversial projects, including a deeply unpopular 250-foot-tall Triumphal Arch between the Lincoln Memorial and Arlington National Cemetery, it could imperil our shared heritage nationwide.

The NHPA of 1966 grew out of an era of urban renewal when whole neighborhoods and city centers were ravaged by highway construction that have left still present scars. It was part of President Lyndon Johnson’s ambitious Great Society initiative that included the Clean Water Act, Voting Rights Act, creation of Medicare, and many others that aimed to foster healthier lives and improve and sustain the natural and built environments for all Americans. On October 15, 1966, President Johnson signed the NHPA into law saying it would “preserve for our children the heritage of this great land we call America that our forefathers first saw” and “help enrich the spirit of America.” As we honor the nation’s 250th anniversary, that remains both apt and relevant.

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Since then, the wonky sounding Section 106 has been one of the most important regulatory pillars the public has had to safeguard irreplaceable significant cultural resources.  Importantly, Section 106 fosters dialogue with the public to improve projects and develop creative solutions that address new needs without creating irreparable damage to important sites; and, it has also helped reroute or prevent highway expansions, mineral extraction, and other damaging acts in significant cultural landscapes. The revised regulations would turn back the clock to an era that allowed unbridled highway expansions, large-scale urban renewal demolitions, and unchecked energy and mineral extraction. And, it would further open the door to massive data centers in historic rural and suburban enclaves. The consultative process mandated by Section 106 is one of the few avenues through which ordinary people can still influence federal decisions that affect their communities.

The Advisory Council on Historic Preservation (ACHP), a federal agency within the Executive branch that administers the NHPA and “promotes the preservation of America’s historic places and advises the President and Congress on national historic preservation policy,” recently voted to drastically rewrite Section 106.

It’s hard to identify the most troubling aspects of the proposed changes, but there is at least one that sticks out. The revised law erases this language: “The views of the public are essential to informed Federal decisionmaking (sic).” In fact, there are at least eighteen separate instances in which public participation, access, and notification are eliminated. Instead, there is new language that says the government will have “exclusive discretion to determine the usefulness of public participation.” The government will "determine the usefulness of public participation"? The net effect is that a federally mandated consultative process would be turned into a very circumscribed one-way conversation.

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There’s more but first it’s worth understanding how Section 106 works to appreciate the devastating magnitude of the proposed changes (we’ll try not to make this too pedantic).

According to the ACHP’s website, Section 106:

“requires federal agencies to consider the effects on historic properties of projects they carry out, assist, fund, permit, license, or approve throughout the country. If a federal or federally-assisted project has the potential to affect historic properties, a Section 106 review will take place.

“Section 106 gives the ACHP, interested parties, and the public the chance to weigh in on these matters before a final decision is made. This process is an important tool for citizens to lend their voice in protecting and maintaining historic properties in their communities.”

In practical terms, what does this mean?

Section 106 reviews are for sites eligible to or listed in the National Register of Historic Places at which the work, called an “undertaking” (renovation, restoration, rehabilitation, etc.), is proposed. The goal of a Section 106 is to identify whether an undertaking has “adverse effects” (federal parlance for negative impacts) on a site, and how to “avoid, minimize, or mitigate” the “adverse effects.” “Avoid, minimize, or mitigate” is a core tenet of Section 106.

The review also allows for “consulting parties”—subject area experts—to be invited to participate in the review process and offer advice on how to “avoid, minimize, or mitigate adverse effects.” Consulting parties may include SHPOs, Tribal representatives, local governments, and other agencies, along with advocacy organizations, and members of the public. Since The Cultural Landscape Foundation (TCLF) was established in 1998, it has participated in scores of Section 106 reviews across the country and is currently involved in many in Washington, D.C.

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The consultation process not only identifies adverse effects and how to address them, but it also can improve the overall design (as recently happened with the White House Visitor Screening Facility). Once there is a consensus a detailed Memorandum of Understanding or a Programmatic Agreement is prepared for signing by all the consulting parties. If an agreement cannot be reached, the ACHP can intervene to broker a solution.

Here’s some important context: of the approximately 110,000 projects nationwide that undergo Section 106 reviews annually, only about two percent (some 2,000 cases) result in potential harm to a historic property.

O.K. are you still with me?

How will Section 106 change? Along with determining the “usefulness of public participation,” there are new and severe changes and restrictions; here are some examples:

•    “Avoid, minimize, or mitigate,” the benchmark for how to address negative impacts, is eliminated. The new, diluted standard is now to “make reasonable efforts” and “identify reasonable mitigation measures to address adverse effects.”

•    Historic properties are more narrowly defined mostly by their material features and the need to be “geographically compact,” and excludes significant traditional cultural associations. It also adds this startling language: “noncompact, unimproved natural features such as mountains, valleys, bodies of water, or landscapes, including ethnographic landscapes, do not qualify as property for the purposes of section 106.” This one places a big bullseye on cultural landscapes with significant ethnographic associations with native peoples.

•    Also removed, is language recommending that Section 106 reviews commence “at the early stages of project planning.” Currently, doing so can identify and address problems at the outset, such as an inappropriate location for a project (a key issue with the Triumphal Arch), thereby making the review process more efficient and keeping project costs down. But, hey, why plan ahead?

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•    The scope and scale of adverse effects is more circumscribed with a focus on “material damage and physical alteration.”  This overly simplistic measurement completely ignores important context and eliminates a more holistic assessment that includes aspects of a property’s integrity, specifically: “location, design, setting, materials, workmanship, feeling, or association.” This backsliding is reminiscent of an era that narrowly focused on historic buildings and not more holistically on historic properties.

•    There is vague new language about the need for “balancing the nation’s interest in historic preservation with its other interests, such as economic development.” Talk about subject to interpretation.

•    The revised law removes language stating: “consultations [should be] appropriate to the scale of the undertaking.” Once again, consider the Triumphal Arch, which if built would be the world’s tallest monumental arch and only second in height to the Washington Monument, so there should probably be multiple consulting party meetings for something this important; actually, there has been only one and the process is speeding towards completion.

The administration’s "bunker buster" bomb approach to revising Section 106 is both dangerous and ludicrous for its excess and overreach. There will be an opportunity for the public to comment on the proposed changes before the ACHP votes on final approval—and the public should comment. However, this administration has repeatedly and forcefully demonstrated that it doesn’t care about informed public opinion (take for example the 100,000 comments, mostly negative, received in a ten-day period about the Arch); in fact, it rachets up the obstinance. So, I guess we’ll see them in court ... again.