From the halls of Congress to the Supreme Court chambers to a television studio in Atlanta, the first week of summer 2024 brought a dizzying array of policy and political developments that impact CRM in ways large and small.
The biggest event was the first presidential debate of the election cycle. President Biden and former President Trump faced off at CNN’s studios, the earliest such encounter in the televised debate era. Betraying obvious disdain for one another, the two candidates traded accusations and barbs over the economy, foreign policy, abortion, which one of them was the worst president of all time, and their golf handicaps, to name just a few. (Section 106 did not come up.)
ACRASphere will leave it to the professional pundits to assess how the candidates did, but if you missed the debate, don’t worry: Biden and Trump are scheduled to go head-to-head again in September.
Court Reshapes Agency Rulemakings
The election drama was quickly eclipsed back in Washington, where the U.S. Supreme Court issued one of its most significant opinions in decades – one that could impact federal preservation programs and a bevy of other regulations.
A 6-3 majority threw out the 40-year old Chevron deference, the doctrine that required courts to defer to federal agencies’ expertise and judgement in rulemakings when the law was ambiguous. Chevron had long been opposed by conservatives as giving unelected agency personnel too much leeway in how they write regulations. (Ironically, the original doctrine was a victory for conservatives, in that the Court’s 1984 Chevron ruling allowed the Reagan-era EPA to issue less stringent air pollution rules than environmentalists wanted. [In yet another irony, the head of the EPA at the time was Anne Buford Gorsuch, mother of current Justice Neil Gorsuch.])
In tossing the Chevron deference, the Court’s majority ruled that the Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous.
What does this mean for federal regulations?
In the immediate term, nothing directly. The two cases before the Court involved the National Marine Fisheries Service (NMFS). Congress authorized the NMFS to create a fishery management program, which could allow for federal observers to be carried on board a fishing boats.
The NMFS issued a regulation that required the fishing industry to pay for the costs of these observers, which is typically around $710 a day, even though the law does not explicitly allow NMFS to charge the fee – but does not prohibit it, either.
Fisheries sued the NMFS, but lower courts ruled that the Chevron doctrine meant they were powerless to second-guess the rule. The Supreme Court reversed that by tossing out the Chevron doctrine.
This does not mean that all federal regulations are suddenly moot. It would take lawsuits challenging specific regulations to knock them down, and even then, courts could still decide that agencies were acting reasonably when writing regulations. But in light of the Court’s decision, agencies now lack the protection of the deference that the 1984 Chevron case provided.
This will almost surely cause a great deal of uncertainty as existing regulations across the government are challenged in court, and as courts try to discern how much power they can exert to block regulations. It also could force Congress to revisit existing laws to further clarify legislative intent to avoid confusion, though it is unlikely that Congress will ever be able to act in a quick fashion.
Impacts on Section 106
The impacts on the National Historic Preservation Act, and in particular, Section 106, are unknown. Some have raised concerns that the end of Chevron means that Advisory Council on Historic Preservation’s (ACHP) regulations implementing the NHPA (a.k.a., the 800 regs) could be challenged as going beyond statutory intent, particularly with regard to the costs borne by private sector parties for conducting 106 reviews.
On the other hand, the regulations may withstand legal challenges even absent Chevron, because federal law already authorizes the ACHP to charge “reasonable costs … to Federal licensees and permittees as a condition to the issuance of the license or permit” and, more broadly, allows the ACHP to “promulgate regulations as it considers necessary to govern the implementation of [Section 106] in its entirety.”
Nonetheless, ACRA will be analyzing the Court decision and subsequent developments around Chevron to ensure that the 800 regs and Section 106 are protected. Watch ACRASphere for more information and resources in the coming weeks.
House Reduces HPF Funding
If that weren’t enough, across the street from the Supreme Court members of Congress are furiously rushing to complete the annual appropriations bills for the upcoming fiscal year before they head home to campaign.
Last week, Republicans on a House Appropriations subcommittee approved a funding bill for the Department of the Interior, despite opposition from subcommittee Democrats.
Overall, the bill provides $14.7 billion for the Department Interior, which is $42.1 million below the current year’s level, and it provides $3.1 billion for the National Park Service, which is $209.8 million below the current level.
The bill would fund the Historic Preservation Fund at $168 million for the Historic Preservation Fund, which would be $20 million below the current year’s level, and would extend its authorization for an additional year, enabling it to continue receiving transfers from Outer Continental Shelf royalties.
The bill also would block the White House Council on Environmental Quality (CEQ) from administering its NEPA reforms, which among other things restored provisions jettisoned by the Trump administration in 2020.
ACRA and its partners in the preservation community continue to push Congress to provide adequate funding for the HPF so that S/THPOs have the resources they need to oversee 106 reviews and other key tasks. It is likely that, as the bill moves to the Senate, funding levels for HPF and other programs will be increased, and that the provision blocking the NEPA reforms will be taken out.
That said, the final bill won’t be completed until after the election, which, if last week’s debate is any indication, will be long and bitter. It’s going to be a hot summer, in more ways than one.