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Thursday, March 27, 2014

Help! Help! Save the Antiquities Act!

There is much hand wringing in U.s. conservation and preservation circles about H.R. 1459, just passed by the House of Representatives.  To hear organizations like the National Trust for Historic Preservation tell it, H.R. 1459, if adopted by the Senate and signed by the president (neither being very likely) will ring the death knell for the Antiquities Act of 1906, America’s first “cultural resource” statute.


First off, archaeologists can breathe easy; H.R. 1459 does nothing to the thin protections given antiquities on federal and Indian lands by the Antiquities Act.  What it does affect is the president’s authority to designate national monuments.

And what does it do to that authority? 

1.       It says the president can’t designate more than one monument per state per presidential term.
2.       It says that a monument can’t include private property without the owner’s consent.
3.       It requires an environmental impact statement (EIS) if the designation “affects” more than 5,000 acres, but declares such a designation automatically categorically excluded from review under the National Environmental Policy Act (NEPA) if it “affects” 5,000 acres or less; and
4.       It requires that a feasibility study be done AFTER the designation, reporting on its costs.
Rather less than a gut-shot to the Antiquities Act, I’d say.

Now, I don’t think H.R. 1459 is a particularly good bill.  Item 1 above strikes me as arbitrary and capricious.  Item 2 is irrelevant, since the Antiquities Act authorizes withdrawals only of public land (with provision for accepting voluntarily given private rights).  But item 4 seems like a prudent enough measure, and the first part of item 3 strikes me as simple good government.

Environmentalists are thundering about how absurd it is to require an EIS on a monument designation; after all, monument designation is a GOOD THING that can’t possibly have environmental impacts.

Right, just like all those good green energy projects now screwing up the western deserts can’t have any impacts because they're GOOD for the environment.  And tell the local residents whose lifeways and economies have been substantially altered by the establishment of parks and monuments that such things have no impacts.  Are they “good” on balance?  Maybe so, but they aren’t necessarily devoid of adversities, and those adversities ought to be considered before a designation decision is made.  That’s the fundamental rationale underlying NEPA.

The second part of item 3 above – the automatic categorical exclusion for designations of 5,000 acres or less – is foolish but typical of a Congress that doesn’t really understand NEPA.   Congress shouldn’t go around deciding what’s categorically excluded; that (ostensibly substantive) decision should be made on the merits, by agencies with the expertise to do so.  But the idea of considering the environmental impacts of a federal government action – including (maybe especially) one that looks like a slam-dunk good thing – is simply good sense and prudent government.

There may be occasions when the president ought to be able to designate something without thinking about its impacts first – maybe where some utterly dreadful land use is pending that can’t be stopped without such a designation.  Seemingly to address such occasions, according to “”

Before final passage, the House passed a manager's amendment clarifying that monument  designations of 5,000 acres or less could still be made by the President temporarily to protect sensitive land, after which a formal NEPA process would have to be followed within three years. This passed in a voice vote.

This amendment seems a bit pointless, since 5,000-acre or smaller designations had already been categorically excluded, but oh well….

The notion that the president shouldn’t have to consider the environmental impacts of a proposed action seems like a strange one for conservationists and preservationists to espouse, but this sort of simpleminded inability to achieve balance or think through logical inconsistencies seems typical of our times.  Our leaders can’t sit down and work things out – whether the things are health care, social security, doing something about international crises, or even things as minor as implementing the Antiquities Act.  Instead the Right spends its time attacking shadows and the Left spends its time viewing with alarm.

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