As 2022 draws to a close, Your Congress in Action is taking a look back at some of the year’s biggest federal policy developments that affect the CRM industry, how ACRA advocated on behalf of the sector, and how they could impact CRM for years to come.
- Strengthening the Historic Preservation Fund
In early 2022, historic preservation advocates in Congress introduced landmark legislation to double the annual funding level for the Historic Preservation Fund (HPF) and making it a permanent program for the first time in its history. The Historic Preservation Enhancement Act was introduced by Rep. Teresa Leger Fernandez (D-NM) and developed in conjunction with ACRA and its preservation allies.
As ACRA President Daniel Cassedy wrote to Rep. Leger Fernandez, the bill “gives preservation offices, the companies that work with them, and communities that rely on grant funds to promote preservation what they most desperately need: support to build their capacity to serve their communities and certainty that the funding will be available in the future.“
Although the bill has not been enacted so far, its importance will only grow next year, when the Fund’s authority is scheduled to expire.
- Eliminating Appendix C
In a major announcement earlier this month, the White House indicated that the U.S. Army Corps of Engineers is starting a rulemaking effort to rescind Appendix C and “instead rely on ACHP’s regulations and joint USACE/ACHP guidance for implementation of Section 106.”
The move came after ACRA called on the Corps rescind Appendix C, following the distribution of a member survey about the Corps’ regulatory program, and after the Corps held a special listening session for ACRA firm members in July regarding their deliberations over Appendix C.
In their comments, ACRA said that adopting the ACHP regulations “will result in stronger and more meaningful consultation with Tribal governments and descendant communities, better enabling the Corps to fulfill its trust responsibility to Tribal Nations. It also will lessen inconsistencies between how the Corps approaches Section 106 reviews and those of other federal agencies that follow 36 CFR 800, and would improve consistencies among Corps districts on how Appendix C is implemented.”
The Corps is expected to work in 2023 to develop its new 106 rules, and ACRA will stay heavily engaged in the process.
- A Landmark Domestic Spending Bill
In August Congress passed one of the largest domestic spending bills in history. The Inflation Reduction Act of 2022 (IRA) would spend $386 billion on energy and climate provisions and $98 billion on access to health care. It’s paid for with a new 15-percent minimum tax on corporate income, provisions that allow the government to negotiate the prices of certain prescription drugs under Medicare and Medicaid, and other revenue raisers.
Although CRM was not the focus of the bill, its size and scope mean it will impact the profession in a number of ways, including through additional funding to federal agencies to support “efficient, accurate and timely reviews,” and spending $40 billion for projects that increase the domestic supply of critical minerals through production, processing, manufacturing, recycling or fabrication of mineral alternatives. (You can read more about what’s in the bill here.
With Republicans taking control of the House next year, it’s not likely we will see another piece of legislation as far reaching as this one for at least a few years, if not longer.
- A Change in House Control
Although their gains were less than expected, Republicans did well enough in the November election to win control of the House in 2023 and 2024.
Now that they have secured a majority, House GOP leaders are looking to unveil a package of bills as early as January to increase domestic production of fossil fuels and critical mineral mining – which could also mean an accelerated push to streamline permitting laws or exclude some projects from Sec. 106 and NEPA altogether.
Although such bills could pass a Republican-controlled House, they would likely be dead on arrival in a Senate controlled by Democrats. But, with the Senate Energy and Natural Resources Committee chaired by West Virginia Sen. Joe Manchin (D-WV) – not to mention the Biden administration’s desire to reduce domestic dependence on oil and critical minerals from countries like Russia and China – some form of increased fossil fuel exploration and extraction could find a way forward next year.
- Speeding up the Permitting Process
The last year saw the start of what’s likely to be a prolonged effort to reform federal permitting laws. In August, Manchin secured a commitment from Congressional leadership and the White House to hold a vote on his proposal, which would set maximum timelines for permitting reviews, streamline existing environmental permitting processes, and address “excessive litigation delays,” among other things.
Manchin spent the fall trying to round up support for his bill, but opposition from conservative Republicans and progressive Democrats prevented it from advancing. That said, the new Republican House majority in the next Congress will probably try to pass legislation that may go further in making changes to NEPA, Sec. 106 and other consultation laws – efforts that ACRA and its members will need to stay on top of as the new year starts.
- Limiting Government Regulations
When the Supreme Court closed out its term last June, most of the focus was on its decision reversing Roe v Wade. But another decision could have significant impacts on federal regulations, including on environmental and cultural resource issues.
In a 6-3 decision in the case West Virginia v. EPA, the Court 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.
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. 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.
- Restoring NEPA
The Biden administration took its first steps this year in undoing changes to the National Environmental Policy Act (NEPA) made by his predecessor. In 2020, the Trump administration revised how the White House Council on Environmental Quality (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.
In April, CEQ released its final rule undoing the Trump administration’s NEPA changes, including restoring the authority of agencies to analyze alternative approaches to a proposed project when conducting an Environmental Impact Statement (EIS) and reestablishing that CEQ’s NEPA regulations are a floor, not a ceiling, for agency NEPA procedures.
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.”
- Protecting Sacred Tribal Objects
Despite partisan gridlock, Congress approved legislation to protect sacred objects. The Safeguard Tribal Objects of Patrimony (STOP) Act, which was endorsed by ACRA and other groups, would prohibit the exporting of sacred Native American items and increase penalties for stealing and illegally trafficking Tribal cultural patrimony.
The Senate passed the bill unanimously in early December, following House passage last year. The next stop: President Biden’s desk, where he is expected to sign it into law.
- Safeguarding African American Burial Grounds
After several years of advocacy by the preservation community, Congress has come tantalizingly close to enacting legislation to protect and preserve African-American burial grounds. Historically, families of color were often barred from burying their loved ones in White cemeteries, and many African-American burial sites have been neglected over time, effectively erasing the memory of countless Americans whose history deserves to be told.
The ACRA-backed African-American Burial Grounds Preservation Act, bipartisan legislation introduced in both the House and Senate, would allow the Interior Department to make grants for the identification, preservation, restoration and interpretation of historic African-American burial grounds. The bill was approved earlier this year by the Senate Energy and Natural Resources Committee, and is on the docket for Senate action this week.
While it might not make it across the finish line this year, the strong bipartisan support means it is likely to become law in the coming years.
- A Push for More Mining
As the White House looks for ways to increase domestic extraction of critical minerals needed for electric vehicles, cell phones and other technologies, for which the U.S. is currently reliant on adversarial nations like China, the Interior Department formed an Interagency Working Group on Mining, Regulations, Laws and Permitting.
ACRA urged the working group to ensure that permitting processes for mine projects provide consistency, clarity, and certainty, and support the early involvement of cultural resource professionals in the planning process. In its public comments, ACRA outlined the elements needed to improve the mine permitting process, including increased funding and capacity for state and Tribal historic preservation offices (SHPOs/THPOs); ensuring early engagement of, and coordination with, cultural resource management professionals; development of historic contexts for regional mining; and ensuring early and effective consultation with Tribes and descendant communities.
Earlier this month, the Departments of Interior and Agriculture agreed with at least one of ACRA’s recommendations, announcing they will implement recommendations on ways to ensure Tribes are engaged earlier during the development of mining proposals on public lands and providing Tribes a seat at the table in discussions regarding mining proposals.