This summer’s blockbuster US Supreme Court decision striking down a fundamental doctrine of administrative law could have profound ramifications for compliance with bedrock statutes governing the treatment of historic properties and cultural resources.
How might this ruling impact heritage management? We dive into these topics with attorney Marion F. Werkheiser, a member of Chronicle Heritage’s Board of Directors and Founding Partner of Cultural Heritage Partners, PLLC.
First, A Primer:
As we all remember from civics class, Congress makes the laws, and Executive Branch agencies issue regulations that implement and enforce the laws. For forty years it has been settled law that when there is a dispute about whether an agency’s application of regulations is consistent with a statute, courts will first examine whether the statute clearly provides an answer. If it does, that’s the end of the inquiry. If the statute is ambiguous, or doesn’t speak to the specific question, courts will defer to the agency’s expertise in filling in any gaps on issues requiring the agency’s exercise of discretion, as long as the agency’s approach was reasonable.
For example, the National Historic Preservation Act’s Section 106 states in its entirety, “The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, shall take into account the effect of the undertaking on any historic property. The head of the Federal agency shall afford the [Advisory Council on Historic Preservation] a reasonable opportunity to comment with regard to the undertaking.” That’s it—the entire text of the statute.
Without regulations, we would not know how to implement this statute. For example, what constitutes “taking into account”? What is a “reasonable opportunity to comment”? How much weight, if any, should an agency give to the Advisory Council’s comments? The Advisory Council attempted to answer these questions and more in its regulations implementing Section 106 at 36 C.F.R. Part 800, and these regulations set out the Section 106 process that we all know today.
Because the Advisory Council is the agency charged with implementing Section 106, courts were supposed to defer to the Advisory Council’s interpretation and application of its regulations to fill in the gaps in the law, as long as the Advisory Council’s approach was reasonable.
This summer, the Supreme Court overturned this approach, called Chevron deference, named after the landmark 1984 Supreme Court case that established the two-part test. The Supreme Court’s June 2024 decision in Loper Bright instructs judges not to defer to an agency’s expertise and instead puts judges in the position of making rulings about technical issues affecting the application of regulations.
Why does this matter?
Cultural resource consultants are often in the position of guiding their clients through compliance with regulations governing implementation of the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA). The cultural resource management industry has lobbied for years for more predictability, cost certainty, and time efficiency in the application of these regulations so that their clients know what is expected of them to comply with the law. Unfortunately, in what the Natural Resources Defense Council has called a “severe blow to the ability of federal agencies to do their jobs,” the Supreme Court’s Loper Bright decision has muddied the waters and opened the door to challenges of regulations that we all thought were settled law.
When a foundational tenet of administrative law is overturned, it injects a great degree of uncertainty into regulatory compliance. As a result of Loper Bright, and another case called Corner Post that the Supreme Court handed down this term that extends the statute of limitations to challenge regulations, we can expect an explosion in litigation challenging regulations throughout the country. Giving judges more power to interpret—and by extension, apply, highly technical regulations—will also lead to inconsistencies across jurisdictions. One judge’s interpretation in Texas, for example, may differ drastically from another judge’s interpretation in California or another judge’s interpretation in Illinois, New York, Washington, D.C., or South Carolina, and we could end up with different standards for regulatory compliance in different parts of the country, similar to how “Waters of the United States” (WOTUS) were defined for Clean Water Act purposes until the Court’s decision in Sackett v. Environmental Protection Agency last term.
What’s next?
What could these decisions lead to in practice? Many environmental advocates are concerned that industry will challenge regulations to water them down and allow more environmental damage. They are right to be worried; for example, SCOTUS has agreed to hear a case regarding what the appropriate scope of NEPA review is in the 2024-2025 term that could have broad ramifications for federal permitting. On the other end of the spectrum, Loper Bright and Corner Post open opportunities for preservation advocates and Indian tribes to challenge National Park Service and Advisory Council on Historic Preservation regulations and their implementation to secure more protections for sacred places and historic properties.
Many preservation organizations, including the National Trust for Historic Preservation and the American Cultural Resources Association, have expressed confidence that the regulations implementing Section 106 are safe from challenge, as the NHPA itself expressly delegates to the Advisory Council authority to promulgate regulations, and the regulations have withstood earlier challenges. At Cultural Heritage Partners, we’re not so confident: Loper Bright and Corner Post open the door to new challenges of the regulations, and there are likely many activist judges who would gladly look past delegations of authority and prior precedent to reshape the landscape of Section 106 compliance.
In addition to concerns about predictability of implementation of Section 106, we have our eyes on an array of other statues and regulations that govern when federal permits are required for projects. We expect industry to file challenges to regulations with the goal of reducing the number of activities that are subject to compliance with Section 106 and NEPA in the first place.
It is more important than ever that project proponents have well informed, creative cultural resource management consultants to guide them through an increasingly unpredictable landscape of compliance. Learn more about Chronicle Heritage’s expertise here.