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Friday, January 21, 2011

Enforcing Section 106

I understand that at the recent meeting in Palm Springs, California to discuss tribal cultural issues with energy development, some tribes were particularly vehement about the need for Section 106 of the National Historic Preservation Act (NHPA) and maybe the National Environmental Policy Act (NEPA) to be enforced more vigorously.

This is an interesting issue, and not as straightforward as one might think. For a very insightful discussion, let me recommend "Two Shades of Green," issued some years ago by the Rand Corporation. “Two Shades” compared how the Army complies with environmental laws that feature outside enforcement (Clean Air Act [CAA], Clean Water Act [CWS], etc.) and those that are supposed to be self-enforcing (NEPA, 106, etc.). It found, not surprisingly, that the Army did a helluva lot better with the former than with the latter. The report's downloadable at, and worth reading.

BUT it's a lot easier to enforce such hard-edged laws like CAA and CWA, which say things like "thou shalt not pump more than X ppm of gunk into the environment," than it is to enforce soft, squishy, process-oriented laws like 106 and NEPA, and even CAA/CWA enforcement doesn't work perfectly (See, for example, Our Unprotected Heritage [Left Coast Press 2009], pp 47-48, 135-6). AND such enforcement requires a largish bureaucracy (at USEPA and the state EPAs) to carry out.

And most importantly, I think it's an unavoidable rule that the tighter the enforcement of an environmental law, the more narrowly and nit-pickingly the subject of the law will be defined. If you think we have problems now with issues like “how big is your traditional cultural property,” just wait till you start trying to enforce legal protections for such properties.

I don’t mean to discourage tribes or anyone else from considering how to enforce the laws, or to otherwise make them work better. I’m just saying that it’s something of a trick to imagine how enforcement could be built into NEPA or 106 without greatly restricting the scope of their application. It'd be interesting to try, but would need to be undertaken with considerable care and creativity.


Anonymous said...

The key difference in these laws is that the Clean Air Act, Clean Water Act, RCRA, etc. criminalizes non-compliance, while process laws don't. When individual managers are indicted and go to jail, as some have, it sends a powerful message to others in the regulated industry. That's why these laws are taken seriously and process laws aren't.

Tom King said...

Sure, but it's a lot easier to criminalize something measurable like dumping gunk than something as subject to interpretation as how well somebody's assessed impacts on the environment or consulted about impacts on historic properties. And criminalization can have unintended consequences. This isn't to say it's not worth considering, in the event somebody wants to consider it; it's just going to be tricky, and the implications need to be thought through.

Alan said...

For the NHPA, maybe it's not so much enforcement that's needed as it is accountability. Maybe the ACHP, which is comprised largely of federal agency policy makers, should convince its federal members that they need to hold their decision makers accountable for compliance by tying it to manager performance evaluations. Maybe decision makers performance -or failure to perform - should be a consideration for whether they will receive their next performance-based step increase. And maybe the ACHP should start holding agencies accountable by issuing forclosures for violations of Section 106, as they used to before they got all soft and squishy. Holding federal decision makers accountable for compliance as an element of their performance evaluations should lead to more conscientious adherence to the 106 requirements, and a more conscientious (or conscious) ACHP willing to exercise its oversight responsibilities wouldn't hurt.

Tom King said...

That's a fascinating idea, Alan, but I've never seen a federal agency do anything so meaningful with performance evaluations.