In a somewhat obscure but important piece of litigation known as Center for Biological Diversity, et al. v. Chuck Hagel, et al., the U.S. District Court in San Francisco recently declined to restrain construction of a military base that threatens cultural resources because, it found, “the NHPA ‘take into account’ process is only hortatory, mandating no particular result.” Accordingly, the court found, “there is no likelihood that the United States government, in response to an adverse declaratory judgment, will voluntarily halt construction.”
The case deals with Section 402 of the National Historic Preservation Act (NHPA), which governs U.S. government actions in foreign countries, but the “take into account” language is common to Section 402 and Section 106, the NHPA’s domestic project review requirement. The court’s decision, therefore, seems to undercut the viability of the NHPA’s review requirements both abroad and at home. Theoretically, an agency could simply say “Nope, we’re just not gonna pay any attention to that silly Section 106 stuff,” and the courts would shrug their shoulders and say “OK.”
But what does “hortatory” mean? According to the dictionary, it means “tending to exhort; encouraging”. When I exhort you to vote for Bernie Sanders (as I do), my speech is hortatory. It obviously doesn’t control what you do in the privacy of the voting booth. Apparently the court reasoned that since an agency doesn’t have to preserve anything in response to Sections 106 or 402, the law’s requirement to take effects into account is only hortatory – only encouraging.
Does this really make sense? Well, far be it from me to argue with a judge, but I don’t think so.
For one thing, although certainly the NHPA is intended to result in things of historic and cultural importance being preserved, the requirement imposed by Sections 106 and 402 on federal agencies is not preservation per se, but that agencies give due consideration to preservation, by taking effects into account. The requirement to take effects into account is far more than an encouragement. It’s an order; the agency shall take its effects into account. The fact that Sections 106 and 402 don’t dictate an outcome doesn’t mean that it’s not mandatory to do as they say.
By way of analogy, the purpose of a speed limit presumably is public safety, but the fact that the speed limit on my street is 25 mph doesn’t guarantee that I’ll be safe and not endanger anyone when I drive away from my house. However, I am nevertheless required not to exceed the speed limit, and can be punished if I do. In the same way, an agency may or may not wind up preserving anything by going through 106/402 review, but it’s nevertheless required – not just encouraged – to take the potential effects of its actions into account. If it doesn’t, it can be punished by having its projects hung up in court.
Furthermore, exhortation sometimes works. Every week in this country and around the world, sermonizers exhort their congregations to do things – be they loving their neighbors or preventing abortions or fending off immigrants – and sometimes, for better or worse, their congregant act on the strength of this encouragement. Jack Kennedy exhorted us to ask not what the country could do for us, but what we could do for the country; I joined the Navy as a result, and many wiser kids joined the Peace Corps. A good-sized percentage of the Bible is given over to hortatory exhortations, and I believe the same can be said of the Quo’ran and other ostensible Words of God that have, on occasion, impelled people to act.
There’s a substantial record of Section 106 – hortatory as it perhaps is with respect to the desired goal of preserving historic places – actually causing things to happen. A very current example of Section 106’s effectuality is the case of “Badger-Two Medicine” on the Lewis and Clark National Forest in Montana. Here the Departments of Agriculture and Interior, in “taking into account” the effects of oil and gas drilling on the area’s traditional Blackfeet cultural landscape, concluded per the Section 106 regulations that there would be an adverse effect on the landscape. They consulted with the Blackfeet and others, but could not reach agreement, so the case went to the Advisory Council on Historic Preservation (ACHP). Layering exhortation upon exhortation, the ACHP issued comments strongly recommending that the drilling not be permitted. The Secretaries of Agriculture and Interior didn’t have to do as the ACHP’s exhorted, but just last week they said that they will. In other words, in response to an undeniably hortatory comment pursuant to what the court says is a hortatory provision of law, the U.S. government has decided not to do something that it had been on track to do for some 25 years – permit the oil and gas under the Badger-Two Medicine to be extracted.
There are, in fact, thousands of cases every year in which agencies do something substantive as a result of taking effects into account under Section 106. Sometimes it’s minor – doing some documentation or data recovery. Other times it’s a lot more major – redesigning projects, pursuing alternatives hitherto unthought-of. Year before last my colleague David Moore and I worked on the proposed demolition of a historic building on a Veterans Affairs medical campus; the result was that the demolition plan was abandoned in favor of rehabilitating the building as a much-needed mental health facility. And occasionally, as in the Badger-Two case, “taking into account” results in the decision that, you know, this just wasn’t a very good idea, so maybe we’d better not do it at all.
Whether this sort of thing could happen in the Hegel case is impossible to say; lots of things influence how any case turns out. But that’s not relevant. Lots of things could happen to make me run over some wandering urchin when I drive down my street, even if I’m going 10 mph; conversely I may very well not run over anybody if I speed. But the speed limit’s exhortation is there for a reason, and the law requires that I pay attention. The Section 106/402 “take into account” provision is there for a reason too. The fact that an agency stamps its foot and insists that taking effects into account won’t cause it to change its mind, regardless of the outcome, should be no more meaningful to a court than my (hypothetical) insistence on driving at 60 mph down Windsor Street.