We Correct the Record: Responding to Misinformation about Section 106
Did you know that the odds you will get hit by lightning in your lifetime are the same as the odds of a Section 106 review process causing a project to end up in litigation?
Industry lobbyists love to say that the National Historic Preservation Act (NHPA) creates litigation that delays projects. But that’s just not true. Our team pulled the data—we searched all federal court filings across the country, and found that only 285 cases have been filed since 1991 that include a claim under the NHPA.
That means that out of the more than 120,000 federal undertakings subject to NHPA review each year, only an average of 8 projects per year become subject to a lawsuit over NHPA-related claims. In other words, only approximately 0.0067% (sixty-seven ten-thousandths of one percent) of the federal undertakings reviewed under Section 106 end up in court. And for the majority of those cases, NHPA is just one of many claims alleged by Plaintiffs.
The reality is Section 106 presents little to no litigation risk for projects.
It is worth noting that the last 12 months have seen the largest number of NHPA cases filed in one year: 12. Many of those 12 cases are related to President Trump’s pet projects in Washington, D.C. or his executive orders reducing Section 106 review. The President seems to be the largest cause of NHPA litigation since he retook office.