Idiotic Interpretations II: Vitare, Magna, Mitigare

(One in a series highlighting common but counterproductive interpretations of regulations and procedures in historic preservation and environmental impact assessment)

No, Caesar didn’t say it, and it’s a bit less sonorous than vini, vidi, vici, but it’s a catch-phrase that’s very attractive to inexperienced nit-pickers on the staffs of State Historic Preservation Officers (SHPOs) and the Advisory Council on Historic Preservation (ACHP). Their idiotic interpretation of the National Historic Preservation Act (NHPA) Section 106 regulations (36 CFR 800) is that by requiring consulting parties to consider and consult about actions to “avoid, minimize, or mitigate” adverse effects on historic properties, the regulations create a reality in which “avoidance,” “minimization” and “mitigation” are mutually exclusive outcomes, and that measures to achieve them must be considered in rigid sequence. We cannot consider “mitigation measures,” the “thinking” goes, until we have considered measures to “minimize” adverse effects, and we cannot consider “minimization” measures until we have considered ways to “avoid” adverse effects altogether.

Which doubtless seems very reasonable to people who value preservation of historic places above all else – surely our first priority should be to protect stuff unchanged; only if we can’t achieve that should we consider ways to reduce impacts, and only if these efforts fail should we turn to “mitigation” – which means…..

Uh, well, what does it mean? Dictionary.com defines the word to mean “lessening the force or intensity of something unpleasant,” or “the act of making a condition or consequence less severe.” So “mitigation” seems to include “minimization.” And the regulations for implementing the procedural provisions of the National Environmental Policy Act (NEPA), at 40 CFR 1508.20, say that:

"Mitigation" includes:
(a) Avoiding the impact altogether by not taking a certain action or parts of an action.

(b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation.

(c) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment.

(d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.

(e) Compensating for the impact by replacing or providing substitute resources or environments.

So under NEPA, both “avoidance” and “minimization” are forms of mitigation, while under NHPA, if one adopts the sequential model, they’re not. Since we characteristically try to do Section 106 and NEPA compliance concurrently – as encouraged by the regulations under both laws – this creates grounds for considerable confusion.

But the idiocy of the sequential model lies not only in creating confusion, but in driving us to do stupid and narrowminded things. For instance: I’ve recently been involved with a project to build a modest new clinical facility for the treatment of veterans suffering from post-traumatic stress disorder (PTSD) in the National Register-listed designed landscape of an existing medical campus. The facility has to be built on the campus in order to allow patients to use other facilities that exist there, and to make it readily accessible to the campus’ medical staff. Moreover, the beauty and tranquility of the landscape are thought to have potential therapeutic value, so locating the facility elsewhere would defeat its very purpose. And it’s worth noting that the whole campus was designed, back in its period of “historic significance,” for therapeutic purposes, so arguably locating the new facility elsewhere would be inconsistent with the historic significance of the landscape itself.

But according to the logic of the sequential model – which, I hasten to say, we managed to bury in ridicule early in the process of negotiating a memorandum of agreement (MOA) – the agency responsible for the project should have first demonstrated to the other consulting parties that it wasn’t feasible to build the facility someplace else, and then demonstrated that there weren’t ways to “minimize” its impacts, before negotiating about “mitigation” measures. And we could have argued at great, meaningless length about whether jiggering the parking lot around so as to reduce modification of a landscaped berm was “minimization” or “mitigation,” and hence, about in what sequence we should consider parking lot rejiggering vis-à-vis, say, window treatment and roof design.

I submit that most Section 106 cases are more or less like my PTSD example. What we end up negotiating in an MOA is some suite of measures that create a more or less positive outcome from the standpoints of the various parties involved in the consultation. We only complicate the negotiation, and tempt ourselves to engage in pointless semantic arguments, when we try to apply a rigid sequential model.

True, the Section 106 regulations do routinely direct us to negotiate ways to “avoid, minimize, or mitigate” adverse effects, implying that the three verbs refer to distinguishable phenomena. But even if this were true – and I’d argue that in the real world it’s not, despite the regulations’ inartful use of language – the regulations do not require that the phenomena be considered in sequence. I can walk to the grocery store or drive my pickup; while it is true that I can’t do both simultaneously, I certainly can, and do, consider both simultaneously when I realize that I’m low on food. In the same way, even if we hold that “avoidance,” “minimization,” and “mitigation” are separate things, we are not logically – or, I would argue, legally – required to consider them in sequence.

In a 106 consultation we should consider and negotiate flexibly and creatively about ways to accommodate the purposes of a proposed project with the interests of historic preservation, with an eye to other relevant public interests and values. Imposing a rigid structure on the consultation process – especially one based on questionable semantic distinctions – restricts our flexibility, diminishes our creativity, and is not helpful to anyone.