In a somewhat obscure but important piece of litigation known as Center
for Biological Diversity, et al. v. Chuck Hagel, et al.[1], the U.S. District Court in San
Francisco recently declined to restrain construction of a military base that
threatens cultural resources because, it found, “the NHPA ‘take into
account’ process is only hortatory, mandating no particular result.”
Accordingly, the court found, “there is no likelihood that the United States
government, in response to an adverse declaratory judgment, will voluntarily
halt construction.”
The case
deals with Section 402 of the National Historic Preservation Act (NHPA), which
governs U.S. government actions in foreign countries, but the “take into account”
language is common to Section 402 and Section 106, the NHPA’s domestic project
review requirement. The court’s decision, therefore, seems to undercut the
viability of the NHPA’s review requirements both abroad and at home.
Theoretically, an agency could simply say “Nope, we’re just not gonna pay any
attention to that silly Section 106 stuff,” and the courts would shrug their
shoulders and say “OK.”
But what
does “hortatory” mean? According to the dictionary, it means “tending to
exhort; encouraging”[2]. When I
exhort you to vote for Bernie Sanders (as I do), my speech is hortatory. It
obviously doesn’t control what you do in the privacy of the voting booth.
Apparently the court reasoned that since an agency doesn’t have to
preserve anything in response to Sections 106 or 402, the law’s requirement
to take effects into account is only hortatory – only encouraging.
Does this
really make sense? Well, far be it from me to argue with a judge, but I don’t
think so.
For one
thing, although certainly the NHPA is intended to result in things of historic
and cultural importance being preserved, the requirement imposed by Sections
106 and 402 on federal agencies is not preservation per se, but that agencies
give due consideration to preservation, by taking effects into account.
The requirement to take effects into account is far more than an encouragement.
It’s an order; the agency shall take its effects into account. The fact
that Sections 106 and 402 don’t dictate an outcome doesn’t mean that it’s not
mandatory to do as they say.
By way of analogy, the purpose of a speed limit
presumably is public safety, but the fact that the speed limit on my street is
25 mph doesn’t guarantee that I’ll be safe and not endanger anyone when I drive
away from my house. However, I am nevertheless required not to exceed the
speed limit, and can be punished if I do. In the same way, an agency may or may
not wind up preserving anything by going through 106/402 review, but it’s
nevertheless required – not just encouraged – to take the potential effects of
its actions into account. If it doesn’t, it can be punished by having its
projects hung up in court.
Furthermore,
exhortation sometimes works. Every week in this country and around the world, sermonizers exhort
their congregations to do things – be they loving their neighbors or preventing
abortions or fending off immigrants – and sometimes, for better or worse, their
congregant act on the strength of this encouragement. Jack Kennedy exhorted us
to ask not what the country could do for us, but what we could do for the country;
I joined the Navy as a result, and many wiser kids joined the Peace Corps. A
good-sized percentage of the Bible is given over to hortatory exhortations, and
I believe the same can be said of the Quo’ran and other ostensible Words of God
that have, on occasion, impelled people to act.
There’s a
substantial record of Section 106 – hortatory as it perhaps is with respect to
the desired goal of preserving historic places – actually causing things to
happen. A very current example of Section 106’s effectuality is the case of “Badger-Two
Medicine” on the Lewis and Clark National Forest in Montana. Here the
Departments of Agriculture and Interior, in “taking into account” the effects
of oil and gas drilling on the area’s traditional Blackfeet cultural landscape,
concluded per the Section 106 regulations that there would be an adverse effect
on the landscape. They consulted with the Blackfeet and others, but could not
reach agreement, so the case went to the Advisory Council on Historic
Preservation (ACHP). Layering exhortation upon exhortation, the ACHP issued
comments strongly recommending that the drilling not be permitted. The
Secretaries of Agriculture and Interior didn’t have to do as the ACHP’s
exhorted, but just last week they said that they will[3]. In
other words, in response to an undeniably hortatory comment pursuant to what
the court says is a hortatory provision of law, the U.S. government has decided
not to do something that it had been on track to do for some 25 years – permit
the oil and gas under the Badger-Two Medicine to be extracted.
There are,
in fact, thousands of cases every year in which agencies do something
substantive as a result of taking effects into account under Section 106.
Sometimes it’s minor – doing some documentation or data recovery. Other times
it’s a lot more major – redesigning projects, pursuing alternatives hitherto
unthought-of. Year before last my colleague David Moore and I worked on the
proposed demolition of a historic building on a Veterans Affairs medical campus;
the result was that the demolition plan was abandoned in favor of rehabilitating the
building as a much-needed mental health facility. And occasionally, as in the
Badger-Two case, “taking into account” results in the decision that, you know,
this just wasn’t a very good idea, so maybe we’d better not do it at all.
Whether
this sort of thing could happen in the Hegel
case is impossible to say; lots of things influence how any case turns out.
But that’s not relevant. Lots of things could happen to make me run over some
wandering urchin when I drive down my street, even if I’m going 10 mph;
conversely I may very well not run over anybody if I speed. But the speed
limit’s exhortation is there for a reason, and the law requires that I pay
attention. The Section 106/402 “take into account” provision is there for a
reason too. The fact that an agency stamps its foot and insists that taking
effects into account won’t cause it to change its mind, regardless of the
outcome, should be no more meaningful to a court than my (hypothetical)
insistence on driving at 60 mph down Windsor Street.
3 comments:
City speed limits are not the right analogy for NHPA. Better analogies might be the city ordinances for returning library books on time, or renewing pet licences. Those engender about the same level of respect for law that agency bosses have for NHPA. The NHPA is not just horatory (send that word to Bill O'Reilly for his "Word of the Day". You might get a signed copy of "Killing Reagan".). The NHPA is a weak, tepid little law, with near zero chance of ever going to court. In celebrating the 50th of the NHPA, we should celebrate and be truly amazed and grateful for how much attention it has gotten thus far. I can't imagine that it will always be that way.
Badger-Two Medicine was not about the NHPA. It was about the clout of Tribes, in an improving political climate of respect for Tribes. The NHPA was merely the putt-putt vehicle that brought Tribal concerns to the attention of DOI and DOA. By itself, the little law can't go any faster than 25 mph, and only when it is headed downhill at that.
The federal agency is also required to give the Advisory Council an opportunity to comment. That the comment may be ignored is not relevant.
I can't disagree with what Anonymous says about NHPA's weak, tepid character, though it actually doesn't have a "near zero chance of ever going to court;" Section 106's litigation record is fairly impressive. It could be much better, though I suspect that Anonymous and I might differ as to what "better" might mean.
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