The Advisory Council on Historic Passivity

The Advisory Council on Historic Preservation (ACHP) has come out with another opinion that ducks engagement in controversy and in so doing undercuts the interests of historic preservation.

The case in point is the planned demolition of the Boeing #2 plant in Tukwila, Washington, where B-29s were assembled in what we’d now call the surge to win World War II. The plant may or may not be technically preservable, it may or may not have reuse potential, it may or may not be significant enough to be worth preserving – though quite a few people seem to think it is. But the possibility of preserving the plant is not being considered via the consultative processes established under Section 106 of the National Historic Preservation Act (NHPA), even though federal agencies are involved in the demolition.

Having had this brought to its attention by concerned citizens and the Washington State Historic Preservation Officer (SHPO), the ACHP issued a letter to the SHPO on September 23, finding that the federal agencies involved had no responsibility to carry out Section 106 review.

Why? Because the instrument by which the agencies have agreed that the demolition should go forward, and so advised the Boeing Company, is a consent decree which will be signed off on (presumably) by the Federal District Court. The consent decree relates to the cleanup of toxic materials at the site of the plant. The ACHP says that in its opinion, “the negotiation of the consent decree and the filing of it in court did not trigger the requirements of Section 106.”

The ACHP’s reasoning runs like this:

(1) Section 106 must be complied with prior to a federal agency’s “approval of the expenditure of any Federal funds on the undertaking” or the “issuance of any license.” This, of course, is true.

(2) The negotiation and filing of the consent decree did not involve federal funding for the project governed by the decree. If one ignores whatever funds the agencies expended on negotiating the agreement, this too is true -- though if one defines the negotiation of the consent decree as itself being a federal undertaking, it is quite evidentally not true. But letting that one ride....

(3) The negotiation and filing of the consent decree “did not involve a federal agency’s licensing or approval.” This strikes me as a curious and questionable conclusion.

The ACHP acknowledges that the federal agencies “had to agree with Boeing in order to jointly file the decree in court,” but it argues that this doesn’t mean the agencies are “licensing” Boeing to do the demolition, or “approving” its doing so.

Why? Two reasons:

(1) “The approval necessary for the consent decree to go into force will come from the court….and the court’s role …will not trigger Section 106 since courts are not ‘federal agencies’ as defined by the NHPA.”

(2) The consent decree (as drafted by Boeing and the federal agencies) “states that it ‘is not, and shall not be construed to be, a permit issued pursuant to any law.’”

So what we have here are a couple of federal agencies that have decided – without the consultation and public review required by Section 106 – that it’s OK for a historic property to be destroyed, and they’ve negotiated an agreement providing for such destruction and tossed in some language about how this agreement is not to be construed as a permit. Because of this statement, and the fact that the consent decree signed by the agencies will be filed with a court (which indeed is not a federal agency under NHPA), and the court will then be responsible for overseeing its enforcement, the ACHP is saying that no federal license or approval is involved, and Section 106 doesn’t apply.

Let’s imagine applying this principle of 106 review to another case. Imagine that the Mt. Vernon Ladies’ Association, a corporation more or less equivalent to the Boeing Company, decides that our first president’s old digs have gotten pretty shabby and ought to be done away with. Imagine that it’s also been discovered that George’s wine cellar has been leaking really rotten port wine into the Potomac, and the Environmental Protection Agency (EPA) wants this pollution cleaned up.

Just in passing, it’s worth noting that Section 110(a)(2)(C) of NHPA requires each federal agency to have a program that ensures that “the preservation of properties not under the jurisdiction or control of the agency, but subject to be potentially affected by agency actions are given full consideration in planning,” and that Section 110(d) of NHPA directs that “consistent with the agency's mission and mandates, all Federal agencies shall carry out agency programs and projects … in accordance with the purposes of this Act,” one of which purposes, set forth at Section 2(5) of NHPA is to “encourage the public and private preservation and utilization of all usable elements of the Nation's historic built environment.”

But let’s assume that EPA isn’t interested in that congressional direction -- what federal agency is? Let’s just focus on Section 106, and assume that EPA wants nothing to stand in the way of cleaning up that nasty port, and the Ladies’ Association is gung-ho to get rid of the mansion. It looks like all they’ve got to do is negotiate a consent decree and include some language (who cares what its legal basis is?) saying that it’s not to be construed as a permit, ask a court to make it happen, and as far as the ACHP is concerned, they’re good to go.

Now maybe that’s true. Maybe real lawyers (I don’t even play one on television) can show why the federal agencies in a case like this are under no obligation to take into account the effects of their agreement on historic properties. And maybe the Boeing plant isn’t worth saving; I have no opinion on that. But it seems strange to me that the ACHP should so willingly accept the notion that a federal agency can get out of its 106 responsibilities simply by filing papers with a court that contain some magic words.

Back in the day when I was learning Section 106, at the knees of such founding fathers as the late Robert Garvey and the still-kicking Ken Tapman (respectively the ACHP’s first executive director and general counsel), I was taught that if there was a federal official’s signature on a piece of paper directing or allowing someone to do something, that constituted a license for purposes of Section 106. Maybe I was misinformed, or misunderstood, or maybe there’s subsequent case law that vitiates this simple rule. If so, it would be good, I think, for the ACHP to advise us. It is not altogether convincing to be told that “106 doesn’t apply because a court is involved” or “106 doesn’t apply because the parties have said what they’ve signed isn’t a permit.” But it does get the ACHP off the hook of actually having to promote the consideration of historic properties under Section 106.