The Department of the Interior announced late Wednesday its plans to implement emergency permitting procedures to accelerate the development of domestic energy resources and critical minerals, enabling many energy projects to move forward with at most seven days of Section 106 consultation. The announcement comes in response to President Trump’s January executive order declaring an energy emergency and follows on the heels of guidance issued by the Advisory Council on Historic Preservation (ACHP) for emergency procedures under Section 106 of the National Historic Preservation Act for energy projects.
The emergency procedures permitting procedures under NHPA, the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). They cover projects related to the identification, leasing, siting, production, transportation, refining, or generation of a variety of energy sources, including crude oil, natural gas and natural gas liquids, refined petroleum products, uranium, coal, biofuels, geothermal energy, kinetic hydropower and critical minerals. Other renewable sources of energy like wind and solar are not included.
The announcement states that the Department plans to use the emergency provisions in 36 C.F.R. § 800.12(b)(2) to satisfy compliance with section 106 for projects that “seek to identify, lease, develop, produce, transport, refine, or generate energy resources, as defined in the energy emergency EO,” and “for which the project applicant(s) have submitted plans of operations, applications for permits to drill, or other applications.”
36 C.F.R. § 800.12(b)(2) stipulates that agencies can fulfill their Section 106 obligations by “[n]otifying the Council, the appropriate SHPO/THPO and any Indian tribe or Native Hawaiian organization that may attach religious and cultural significance to historic properties likely to be affected prior to the undertaking and affording them an opportunity to comment within seven days of notification. If the agency official determines that circumstances do not permit seven days for comment, the agency official shall notify the Council, the SHPO/THPO and the Indian tribe or Native Hawaiian organization and invite any comments within the time available.”
The announcement states that, in order to avail themselves of the emergency procedures, project applicants must affirm in writing to the Responsible Official(s) that they “will implement, to the extent prudent and feasible, measures that avoid or minimize harm to historic properties.” The relevant Responsible Official(s) in turn will be responsible for notifying the ACHP, relevant SHPOs, THPOs, and Indian tribes of the specific energy project or projects for which they intend to use the emergency section 106 alternative procedures as provided in 36 C.F.R. § 800.12(b)(2) and will invite comments within seven days of the notice.”
For NEPA, the Department will be “adopting an alternative NEPA compliance process” that will require environmental assessments (EAs) to be reviewed in roughly 14 days and environmental impact statements (EIS) to be reviewed in roughly 28 days.
ACRA is carefully reviewing the announcement and working with its allies in the preservation community to assess its impact and consider next steps.