Improving Regulation and Regulatory Review: The President's New Executive Order and Historic Preservation

Introduction

On January 18, 2011, President Obama issued an executive order (which doesn’t seem yet to have been assigned a number) entitled “Improving Regulation and Regulatory Review.” The order articulates some excellent principles that I’ll get to in a moment, but first let’s skip toward the order’s end and look at its action-forcing paragraphs. These are found in Section 6, and speak to all executive branch agencies:

Sec. 6. Retrospective Analyses of Existing Rules. (a) To facilitate the periodic review of existing significant regulations, agencies shall consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. Such retrospective analyses, including supporting data, should be released online whenever possible.


(b) Within 120 days of the date of this order, each agency shall develop and submit to the Office of Information and Regulatory Affairs a preliminary plan, consistent with law and its resources and regulatory priorities, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.

So agencies, within 120 days, are to initiate plans to examine their regulations and fix them up to make them “more effective or less burdensome” – or, presumably, both.

This requirement is as applicable to the two federal agencies responsible for rulemaking (that is, regulation-issuance) under the National Historic Preservation Act (NHPA) as it is to the rest of the federal establishment. Pursuant to the executive order those two agencies – the National Park Service (NPS) and the Advisory Council on Historic Preservation (ACHP) have both the opportunity and the responsibility to do something creative and responsible with their regulations – but almost certainly will resist doing so. They will argue either that their regulations don’t really regulate anything (the obvious out for NPS), or that they’re just fine as they are (the ACHP’s likely angle).

This is too bad, because in fact the interlinked, overlapping NHPA-based regulations overseen by the two agencies create many inefficiencies and are not very effective at achieving their purposes. They cost millions if not billions of unnecessary dollars, and place undue burdens on a considerable cross-section of the American public, including a range of industries and businesses large and small, local and state governments, Indian tribes and other indigenous groups, low-income and minority groups, property owners, and just plain citizens – including citizens who support historic preservation.

The ACHP and NPS ought to develop and implement review plans in cooperation with one another (as well as with all us stakeholders), because many of the gross inefficiencies of their regulatory systems, much of their undue complexity, much of the burden they place on industry and citizenry alike, result from interactions between the systems.

Complexity and Burdens: a Hypothetical Example

As noted above, NPS and ACHP will doubtless claim that they’re not really regulatory agencies and don’t need to do anything, and that besides, their regulations are just fine and everyone’s happy with them. To understand why they’re wrong, and why they (or better, someone else who isn’t deeply invested in the status quo) ought to perform the review the President orders, consider a hypothetical project – say, a small energy-production facility that requires a federal license or funding, or uses federal land. This project requires review under Section 106 of NHPA and the regulations of the ACHP (36 CFR 800). Let’s assume that the project proponent – call her Polly – is a responsible sort, as interested in doing right by the law, the environment, and the public interest as she is in the project’s bottom line. So she sets out to comply with 36 CFR 800 (and the National Environmental Policy Act – NEPA – but that’s another whole can of regulatory worms).

But the proponent in fact can’t comply with 36 CFR 800, because Section 106 of NHPA applies only to federal agencies. There may or may not be a federal agency clearly involved when Polly Proponent begins to develop her plans, or there may be several – or some may be involved at the outset while others are waiting in the wings. The result is that review of Polly’s project may be delayed until a federal agency is unambiguously involved, and by the time this happens Polly may have invested a lot of time and money in her project, limiting her ability or willingness to consider alternatives if it turns out her preferred approach will have serious impacts.

So here’s Problem #1 – Ambiguous, uncertain, or late federal involvement: Section 106 review was invented back when many if not most federal projects were directly undertaken by federal agencies. Today, many if not most projects in which the federal government is involved are actually planned and promoted by private parties or local/state governments. Federal agencies may become involved in a project rather late in planning. The Section 106 regulations quite reasonably insist that the law be complied with early in planning, when there’s lots of room for adjustment and consideration of alternatives, but at that early stage, there may be no federal agency involved. As a result, review may be delayed until many alternatives have been foreclosed, and there’s little wiggle room left.

Let’s suppose a federal agency gets involved in Polly’s project – or maybe a couple of Federal agencies do, and they initiate review. Polly may at this point run into another problem – call it Problem #1a – in that the agencies involved may have understandings and interpretations of their Section 106 responsibilities that are unique to themselves, and these understandings may conflict with one another, confusing and complicating review of Polly’s project. This isn’t exactly the ACHP’s or NPS’s fault, so let’s just note it and skip over it – though it’s certainly imaginable that thoughtful review of the regulatory system could help relieve the confusion.

The agency responsible for Polly’s project – let’s call it the Agency for Federal Assistance (AFA) -- now seeks to initiate Section 106 review. The Section 106 regulations say that it’s to do so by contacting the relevant State Historic Preservation Officer (SHPO) , coordinating with other reviews (e.g. NEPA review) and identifying other parties – stakeholders – with which it should consult.  Under some circumstances the agency consults with one or more Tribal Historic Preservation Officers in lieu of or in addition to the SHPO, but to keep the discussion relatively simple (sic), let's stick with the SHPO.

And in consulting the SHPO, the agency is likely to be quite systematically misled as a result of NPS regulations and practice. NPS partly funds the SHPOs, and hence oversees how they perform their functions – including their consultation with agencies under Section 106. But NPS regulations (36 CFR 61) and procedures (extensive and obscure) dealing with SHPO operations go into loving detail about SHPO duties relating to things of interest to NPS (notably the National Register of Historic Places – see below), while largely ignoring SHPO responsibilities vis-à-vis Section 106. To the extent NPS procedures do touch on Section 106-related SHPO responsibilities, they are out of date; the Section 106 regulations have changed several times, and practice under Section 106 has evolved considerably, over the two decades or so since NPS last re-thought its SHPO review procedures.

So the agency holding the SHPO’s purse-strings – NPS – does little or nothing to encourage SHPOs to advise agencies about how to comply with Section 106 in a manner that’s consistent with the ACHP’s regulations. An SHPO may do so without such encouragement, of course, but he or she will not be rewarded for doing so when NPS doles out its grant moneys.

This is Problem #2: The interaction between ACHP and NPS procedures, via the SHPOs, does not encourage early, thoughtful initiation of Section 106 review in coordination with NEPA and in consultation with stakeholders.

The AFA, if it is like most federal agencies, wants to consult with just as few people as possible, and do the least work it can, in reviewing Polly’s project. AFA very likely believes – this belief is quite widespread, though utterly inconsistent with the regulations – that Section 106 simply requires them to seek “clearance” or approval for Polly’s project from the SHPO, or that the SHPO will tell them if the project presents any historic preservation issues.

So AFA drops the plans for Polly’s project on the SHPO and asks what the SHPO thinks – expecting to be told definitively whether Polly has any historic preservation problems. Under the Section 106 regulations, what the SHPO ought to do at this point is provide AFA with recommendations about how to identify any potentially affected historic properties, caution AFA to make sure it coordinates its 106 consultation with review under NEPA, and point AFA toward any other parties who ought to be brought into consultation. The SHPO may do these things, but since he or she gets no encouragement to do so from NPS, there’s no guarantee.

The SHPO may just tell AFA what’s in the “state inventory” – the list of places the state has identified that may have historic value. The inventory is very incomplete; no state has had the money to “complete” its inventory, and since history marches on, and discoveries are made all the time, and historic significance is in the minds of evaluators, the very notion of a “complete” historic property inventory is something of an oxymoron. But one possibility is that AFA assumes that the inventory is complete, notes that there’s nothing recorded in any of the locations that Polly’s considering, and tells Polly she has nothing to worry about when it comes to Section 106. This, of course, may be true but it probably isn’t; the reason there’s nothing in the inventory is probably that nobody’s looked at Polly’s potential project sites.

More likely, the SHPO will tell AFA that it doesn’t know of anything in the areas Polly’s looking at, and recommends that a survey be done to find out what is there. The SHPO quite likely has detailed standards for survey work – NPS encourages the development of such standards. The standards probably go into some detail about having archaeologists walk over every foot of the ground, digging holes every so often, while architectural historians look at and photograph all the buildings, and everybody does background research. What they almost certainly do not say much about is finding out what living people in the potentially affected areas (or elsewhere) think about those areas – unless those people are archaeologists, architectural historians, or perhaps Indian tribes – because NPS doesn’t encourage SHPOs to worry about that kind of thing (except where tribes are involved, based on a large corpus of action-forcing law).

Polly – a responsible sort, remember – has several possible alternative locations for her energy project, and some of them are quite large. She doesn’t have access to all of them yet. It will cost her a great deal of money to contract for surveys of them all, done to the SHPO’s standards. She objects, and the AFA takes her objection to the SHPO. They decide that Polly can get by with background study at this point, and put off full scale survey until a final project site has been identified.

So Polly’s historic preservation contractor does a vague general paper on the history and prehistory of the region, which goes in the project’s NEPA documents, but does nothing more about impacts on historic properties until Polly and AFA have selected a preferred alternative. By this time Polly has invested quite a lot of money in project planning. Now, at the eleventh hour, her consultants finally get out on the ground in the preferred alternative area, and – whoops! – they find something. Or – this is not uncommon – the consultants don’t find something, but others (those folks whose views haven’t been sought during earlier phases of planning), learn about the project because its NEPA document has been distributed or it’s gotten into the local papers or been touted on the internet, and they raise concerns. Maybe these concerns are about, say, an ancestral burial place an Indian tribe says will be disturbed, or maybe local people who really like the pristine views across the proposed project site raise aesthetic arguments. Whatever the concerns, they’re raised late in the planning process, when it’s going to cost Polly megabucks to do anything about them – if she can do anything at all.

So, Problem #3: By failing to ensure that stakeholders are involved early in the process, by failing to provide effectively for coordination with NEPA and similar reviews, and by imposing standards that promote delay in the identification of affected historic properties until alternatives have been foregone, the interaction between NPS and ACHP regulations almost guarantees late-breaking conflicts that waste money and time.

But it gets worse. Now that something has been identified in the area to be affected by the project, the Section 106 regulations require that its eligibility for the National Register of Historic Places be determined. Never mind that the tribe is deeply concerned about impacts on its ancestors’ burial place; never mind that the local aesthetic society is wild about what’s going to happen to the viewshed; we can’t consider impacts on such a place under Section 106 unless it’s eligible for the Register. And conversely, even if the only thing found is a pile of tin cans on the edge of the project site, and nobody gives a damn about it, it has to be evaluated for Register eligibility.

And here the ACHP and NPS regulations part company rather dramatically. The ACHP regulations (at 36 CFR 800.4(c)(2)) permit an agency and SHPO simply to decide that something is or is not eligible for the Register and move on, with provision for resolving objections raised by others. But NPS regulations (36 CFR 63) require that if an agency and SHPO decide that a property is eligible, the agency must submit detailed documentation to NPS, in the person of the Keeper of the National Register, who makes a final decision. If the agency and SHPO decide that the property is not eligible, though, they can treat it as such with no further review; in other words AFA can let Polly blow it away, and never mind the tribe or the aesthetes.

In determining eligibility, agencies, consultants, SHPOs and others apply criteria set forth in NPS regulations at 36 CFR 60.4. These criteria are very abstract and subject to interpretation by professional historians, architectural historians, and archaeologists – who are, for all practical purposes, the only people allowed by NPS and ACHP regulations to interpret them. Applying them can become the subject of intense, abstruse argumentation, taking up more time with little practical utility. SHPOs and NPS also commonly demand a great deal of documentation to support a determination of eligibility, grounding their demands (if they bother to explain them at all) in a considerable corpus of NPS guidance (based ultimately on regulations at 36 CFR 60) relating to the formal nomination of properties to the Register. This sort of documentation is often unnecessary for purposes of eligibility determination, but is insisted upon anyway as a matter of consistency (See Ralph Waldo Emerson for a succinct comment on this kind of consistency).

This is Problem #4: The ACHP and NPS regulations together focus attention on properties that meet abstract criteria interpretable only by professionals in specified academic disciplines, employing unduly complicated processes and generating unnecessary paperwork. The evaluation system is virtually impenetrable by outsiders, and can be very time-consuming. It can elevate the “official,” government-sanctioned significance of things that no one cares much about, while denigrating the significance of places about which people are deeply concerned. The character of the criteria, and the divergence between the ACHP and NPS regulations, create many opportunities for time-wasting arguments over petty technical and procedural issues.

Assuming something is found eligible for the National Register, the next step in the process is to determine whether the project will affect it, and if so, how. Here the regulations of the ACHP (36 CFR 800.5) hold sway, but the SHPO is an important interpreter of those regulations, and is held to account by NPS. The regulations allow for projects to fall into any of four categories – no historic properties subject to effect, no adverse effect, no adverse effect with conditions, and adverse effect. If there will be an adverse effect, the agency, SHPO, and others consult further, seeking agreement about how to “resolve” the adversity. There is much room for argument over how to interpret the regulations. Although the regulations do not say so, there is a widespread perception that it is wrong to have an adverse effect, so agencies tend to seek “no adverse effect” determinations. SHPOs tend to resist concurring in such determinations. SHPO and ACHP staff also tend to interpret the language of the regulations to require a rigidly sequential process of first exploring alternatives to avoid adverse effects, then alternatives to minimize them, and only if these prove infeasible, alternatives to mitigate them somehow – regardless of the severity of the impact or the significance of the property. Arguments over such petty issues can take up a great deal of time, including time spent by pricy consultants.

Thus, Problem 5: The overall effect of the Section 106 regulations, interacting with NPS regulations and procedures, is to reduce consideration of effects on historic properties to technical argumentation over petty points of regulatory interpretation and professional preference, with little opportunity for the public to become fruitfully involved.

Conclusion: Fixing the Problems

For those unfamiliar with the Section 106 process, I should say that Polly will probably get her project constructed – regardless of its effects on historic properties or the broader environment. She’ll probably wind up spending a good deal of money on “resolving” its impacts through such things as archaeological data recovery – on top of what she’s spent struggling through the review process. If worst comes to worst, if the project will have adverse effects and the AFA, Polly,and the SHPO can’t agree on what to do about them, the ACHP will comment to the head of AFA, who will make its final decision.

All that said, and despite all the problems outlined above, there is much that is worthwhile in the Section 106 process. Notably, it’s very nearly the only regulatory process in the federal government that emphasizes getting concerned parties together to consult over and work out their differences about how impacts on an aspect of the environment should be characterized and dealt with. It could be a model for other such review processes, had it not been allowed to evolve into such a petty, impenetrable, unnecessarily cumbersome and ill-focused enterprise.

What can be done? That remains to be seen, but I hope someone in the administration can and will force the ACHP and NPS to get off their self-satisfied duffs and reconsider the whole regulatory complex with reference to the excellent principles the President set out in the introduction to his executive order – to wit:

“Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation. It must be based on the best available science. It must allow for public participation and an open exchange of ideas. It must promote predictability and reduce uncertainty. It must identify and use the best, most innovative, and least burdensome tools for achieving regulatory ends. It must take into account benefits and costs, both quantitative and qualitative. It must ensure that regulations are accessible, consistent, written in plain language, and easy to understand. It must measure, and seek to improve, the actual results of regulatory requirements.”

I want especially to point to the third and seventh sentences in this statement of principles. The complex of regulations surrounding and structuring Section 106 review give lip service (and even that only sometimes) to public participation and the exchange of ideas, but they do not really facilitate either, and they are a long, long way from being accessible, consistent, written in plain language, or easy to understand (The NEPA regulations, I should mention, are even worse). They could be made very much better. I hope – but don’t expect – that President Obama’s executive order will trigger a process that leads to such improvements.