How Trump’s New Executive Order Will Impact Historic Preservation

05/21/2020 3:38 PM | ACRAsphere Blog Team

This post initially appeared on the Coalition for American Heritage website. ACRA is a founding member of the Coalition alongside other heritage organizations.

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.

You can help us with this effort! If you hear about agencies starting to use this executive order to waive Section 106, even it is not for one of your own projects, let us know ASAP. We want to be sure mobilize the CRM industry as quickly as possible if this becomes the case, and your experiences in the field can help us put boots on the ground.

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