King, You're Full of Crap

Nobody else has asked this question – too polite, I suppose – so I will.

“OK, King, you’ve excoriated the Bureau of Land Management (BLM) for putting out a programmatic agreement (PA) on solar projects that turns on post-approval development of cultural resource management plans (CRMPs). You say BLM is violating Section 106 of the National Historic Preservation Act (NHPA). However, you conveniently ignore the fact that there are scores, hundreds, maybe thousands of PAs already in place all over the country that do exactly the same thing. For instance, there are military bases with integrated cultural resource management plans (ICRMPs), and there are reservoirs where the Federal Energy Regulatory Commission (FERC) has done PAs requiring CRMPs. There are interstate pipelines with PAs calling for CRMPs. If BLM’s solar PA is contrary to law, how come all those others aren’t? How come the people who drafted them – including you, King – aren’t in jail? Huh? Huh?”

Fair question, I (naturally) think, and it may well be that those who drafted some of those PAs should be in jail, but I do think there’s an important distinction between at least many of the CRMP (by whatever acronym)-based PAs now in existence and what BLM is trying to peddle to the solar power industry.

Consider, for instance, a FERC-regulated hydroelectric project – basically a reservoir – where FERC executes a PA requiring preparation of a CRMP. The undertaking subject to review here is not the construction of a new facility; the federal undertaking is FERC’s decision-making about whether to extend the power company’s license for another 20 or 30 or 50 years. So FERC causes the permitee to collect some basic information on what’s happening to “cultural resources” (admittedly, usually too narrowly defined, but that’s another issue) around the reservoir and then consults, for awhile at least, with the permitee, State Historic Preservation Officer (SHPO), tribes, and other interested parties and decides that, yup, there are ongoing effects (through erosion, public access, whatever), and a CRMP should be developed to deal with them. In this case FERC has taken effects into account, and it’s simply decided that a CRMP is a good tool for addressing them. Never mind whether they’re right or wrong in particular cases; they’ve played the game by the rules.

Or take the more difficult case of the interstate pipeline. The typical problem here is that the applicant for federal rights of way can’t get on the land they want to traverse to do surveys and such until they get their financing, and they can’t get their financing without their right-of-way, and they can’t get their right-of-way without the federal agencies going through Section 106 review. So they can’t possibly identify “all” the historic properties subject to effect (as if anyone ever could) before the federal action is taken. So what happens – in my experience, and admittedly it’s been awhile since I’ve done a pipeline – is that the agencies, applicant, SHPOs, tribes, et al sit down and review what they DO know about the rights-of-way and alternatives, and say, for example, that since the thing is basically a ditch in the ground, the major effects are going to be on archaeological sites, but maybe there’ll be visual effect issues when they go through the Green Ridge Mountains where the tribes carry out spirit quests on hilltops. Then they’ll put together a CRMP that spells out how archaeological sites will be dealt with and how further consultation will be done to control visual effects in the Green Ridge – and maybe that alternative route X will be used because it’s thought by the consulting parties to have the least potential for such effects. Again, they’ve taken effects into account, and used the CRMP as a mechanism for addressing those effects.

What BLM is proposing appears to be quite different. Apparently the applicant has had some archaeological surveys done, and maybe they’ve talked to some people about effects, but there’s nothing in the PA that even purports to represent consideration of the results of these studies, this consultation. Instead, the PA proposes that BLM will carry out the whole standard process of Section 106 review – identifying historic properties, evaluating them, determining effects on them, resolving adverse effects – via the CRMP after a project is approved. In this case, BLM has not taken effects into account; it has just proposed to promise to do so sometime down the road, after the project is approved.

Now, it may be that there are lots of other PAs out there that reflect the same approach as BLM is proposing for the solar projects; if so, then I’d say they’re contrary to the letter and spirit of the law. But those that use CRMPs (or ICRMPs, or HRMPs, HPMPs, HMPs or Freds) to address effects that have been recognized as occurring (as in a typical FERC hydro project) or reasonably predicted to occur (as in the pipeline example) seem to me to be in the clear. The more ethereal and abstract they get, however – the more they push everything off into the post-decisional future – the more likely they are to violate the straightforward language of the statute:

The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.
(NHPA Section 106 [16 USC 470f], emphasis added)