While the Supreme Court’s June 24 decision overturning Roe v Wade has garnered a great deal of controversy and debate around the country, it was another high court ruling last week that may have even greater impacts, including on CRM.
In a decision that could limit the authority of government agencies to address major policy questions, a 6-3 majority of the Court last Thursday curtailed the Environmental Protection Agency’s powers to restrict greenhouse-gas emissions from power plants without congressional approval.
In his majority opinion, Chief Justice John Roberts said Congress never gave the EPA the authority to change the methods a power plant uses and that, while forcing a nationwide transition away from coal might be a sensible idea, the EPA cannot do so without a clear authority from Congress. In a dissenting opinion, Justice Elena Kagan argued that the decision strips the EPA of the power Congress gave it to respond to “the most pressing environmental challenge of our time.”
The ruling could open the door to more lawsuits challenging the ability of federal agencies to take regulatory actions without clear say-so from Congress. Regulating agencies commonly issue regulations that are intended to turn broad legislative goals from Congress into specific, workable rules; this practice has become more common in recent years, as gridlock has prevented Congress from taking action on pressing issues. The question is, how much leeway will agencies now have to use those laws to address societal issues, when the law itself does not explicitly give agencies clear direction. Will the ruling make it harder for agencies to implement NEPA and Section 106 rules as they see fit? How far can federal agencies do in protecting natural resources and historic assets when clear Congressional authority is lacking? ACRA and its allies in the preservation movement will be watching developments here closely.
Army Corps Appendix C Review
Even as the Court acted to curb agency actions, at least one agency is considering updates to how it fulfills its Section 106 obligations.
In early June, the U.S. Army Corps of Engineers announced a new effort to modernize its Civil Works program, including the possibility of rulemaking over its use of Appendix C. The Corps has asked Section 106 stakeholders to share their experiences with Appendix C and the challenges they encounter in protecting historic properties when using it by the end of July.
Any changes to how the Corps meets its obligations under Section 106 will have profound impacts on CRM firms across the country. ACRA plans to submit comments to the Corps that reflect the views of ACRA member firms. In order to give firms the opportunity to have a voice in the discussion, ACRA also is announcing two ways to weigh in:
- ACRA Member Survey. ACRA has launched an online survey to provide ACRA member firms to offer their thoughts on any potential changes to Appendix C. Please take the survey, which will help the ACRA Government Relations Committee formulate ACRA’s comments, by July 22.
- ACRA-Corps Listening Session. At ACRA’s request, the Corps has agreed to hold a special virtual listening session for ACRA member firms to discuss the potential changes. In the session, the Corps will brief us on their process and give firms a chance to share their views. The listening session will be Wednesday, July 13, 2022, from 1:30-3:00 pm EDT. To register, click here.
ACRA is committed to ensuring that CRM firms have a seat at the table when federal agencies make preservation policy. Don’t miss out on these opportunities to help shape the Corps’ Regulatory Program.
Historic Preservation Funding
Meanwhile, Congress is busy working on bills to fund the federal government in the next fiscal year, which starts October 1.
Last week the House Appropriations Interior Subcommittee approved an annual spending bill for the Department of the Interior that includes $171 million for the Historic Preservation Fund. This amount is $2 million below the current year but $19 million above the White House request.
ACRA and the preservation community are asking Congress to provide $200 million for the Fund in the new fiscal year to help state and Tribal historic preservation offices address the influx of Section 106 reviews expected as a result of the 2021 infrastructure law.
Last year, the Senate provided more funding than the House, and so ACRA is continuing its lobbying efforts to ensure that the Fund gives state and Tribal preservation offices the financial support they need.
In other CRM-related news:
- The Interior Department delayed the rollout Thursday of a proposed five-year offshore oil and gas development plan that had been promised by the end of the month, according to sources. No reason was given for the delay. Initial reports suggested that the plan would recommend to the White House that federal offshore oil and gas drilling auctions be confined to the Gulf of Mexico and should exclude all other federal waters.
- The Bureau of Land Management, the U.S. Forest Service, and the five Tribes of the Bears Ears Commission have formalized their partnership for co-management of the Bears Ears National Monument. This follows the October 2021 issuance by President Biden of Proclamation 10285, which restored the Bears Ears National Monument and recognized the importance of knowledge of Tribal Nations in managing the monument by re-constituting the Bears Ears Commission as established by President Obama in 2016. The BLM and the U.S. Forest Service jointly manage the monument and will prepare a management plan for federal lands within the 1.36 million-acre boundaries of the Bears Ears National Monument working cooperatively with the Tribal members of the Bears Ears Commission to protect and restore the monument objects and values.
- The House Appropriations Subcommittee on Financial Services and General Government approved its spending bill for the upcoming fiscal year, which includes a provision to create a commission to “review the assigning, modifying, or removing of names, monuments, statues, public art, historical markers, or other symbols owned or located on Federal Government property which are inconsistent with the values of diversity, equity, and inclusion.” The President, Speaker, Senate Majority Leader and minority leaders of both chambers would each appoint two members; the Commission also would include the Secretary of the Smithsonian and the House and Senate historians. Each commission member “shall have 10 or more years of educational and professional experience in one or more of the following disciplines”: history, art and antiquities, historic preservation, cultural heritage, and education.