While Congress has been out of town on its customary Easter recess for the last two weeks, the Biden administration has been busy on a number of fronts, including making policy decisions that impact cultural resources.

Most notably, on Wednesday the White House Council on Environmental Quality released its final rule undoing the Trump administration’s changes to the National Environmental Policy Act (NEPA). In 2020, the previous administration revised how CEQ would implement NEPA, exempting classes of federal actions from NEPA review and restricting the types of project effects to be examined during the NEPA review process.

ACRA and a host of other organizations criticized the 2020 rule, arguing that the changes placed arbitrary deadlines and limitations on the review process and left important considerations at the discretion of agencies without public input, potentially leading to more litigation, project delays and threats to historic and cultural sites without recourse to consider how federal actions impact them.

Last week’s announcement by the Biden administration effectively reverses these changes. In particular, the new rule:

  • Restores the authority of agencies to analyze alternative approaches to a proposed project when conducting an Environmental Impact Statement (EIS). The 2020 changes left it unclear whether agencies were limited by their statutory authority and the applicant’s goals when considering alternatives.
  • Reestablishes that CEQ’s NEPA regulations are a floor, not a ceiling, for agency NEPA procedures. The 2020 changes had included “ceiling provisions” that prevented agencies from going beyond the CEQ regulations.
  • Broadens the definition of “effects” to include “direct effects,” “indirect effects,” and “cumulative impacts,” including climate change impacts.

In its announcement, CEQ said they will “continue. . . to work toward proposing a set of broader ‘Phase 2’ changes to the NEPA regulations to help ensure full and fair public involvement in the environmental review process; meet the nation’s environmental, climate change, and environmental justice challenges; provide regulatory certainty to stakeholders; and promote better decision-making consistent with NEPA’s goals and requirements.”

In addition to the NEPA revisions, the Biden administration has taken additional measures that could directly or indirectly impact cultural resources:

  • The Interior Department has asked the public for recommendations to inform its new Interagency Working Group on Mining Regulations, Laws, and Permitting. This action comes at a time when the administration is looking to boost domestic extraction of minerals needed for electric vehicles, cell phones and other technologies, for which the U.S. is currently reliant on adversarial nations like China. According to Interior, the working group’s role is to “gather information and develop recommendations for improving Federal hardrock mining regulations, laws, and permitting processes, and is inviting public comments to help inform the efforts of the working group.” Interior will hold in in-person public listening sessions, which will be announced in the coming months. The deadline for public comments is July 31, 2022.
  • The National Park Service has finalized a rule to allow deaccessioning of federally owned archeological items determined to be of insufficient national archeological inter According to NPS, “The new rule provides agencies with a rigorous procedure to remove from collections a limited number of particular material remains that are determined to be ‘of insufficient archeological interest’ by meeting very specific criteria. No human remains or cultural items as defined in the Native American Graves Protection and Repatriation Act (NAGPRA) may be disposed of under this rule.”
  • The Interior Department announced last week that it will resume oil and gas leases on federal land for the first time since the start of the Biden administration. The Bureau of Land Management (BLM) announced it will post notices for “significantly reformed onshore lease sales that prioritize the American people’s interests in public lands and moves forward with addressing deficiencies in the federal oil and gas leasing program.” The move comes after a 2021 S. District Court ruling requiring the administration to resume leases, and following the administration’s release of a report last year calling for a “balanced approach to energy development and management of our nation’s public lands. “Under the new leases, companies will be charged royalties of 18.75%, up from the 12.5% rate that had been the standard since at least 1920.
  • The Interior Department told Congress in a report last week that the Biden administration is expected to approve 48 wind, solar and geothermal projects with a total estimated capacity of 31,827 megawatts that can power about 9.5 million homes by the end of fiscal year 2025. If the projects are completed, the Biden administration would exceed the Energy Act goal of approving 25,000 MW of new onshore renewable projects by 2025.

Advocating for the Industry

When Congress returns to Washington this week, it will have a lot on its plate, including passing appropriations bills to fund federal agencies in the fiscal year that starts this fall.

Advocating for cultural resource management and a stronger federal consultation system have long been top priorities for ACRA – and they will be the focus of ACRA’s second annual Virtual Advocacy Week May 2-6, 2022. That week, you can join other CRM professionals in meeting virtually with your members of Congress to discuss issues important to the industry. ACRA will arrange your meetings and provide training beforehand. Meetings will be scheduled throughout the week to accommodate your schedule and those of congressional offices.

Just because you can’t make it to DC doesn’t mean that you can’t make an impact. Join your fellow CRM professionals and so sign up now to make sure the CRM industry is at the table.