A push from Senate Energy and Natural Resources Chair Mike Lee to change a landmark law designed to protect Native American cultural treasures and other historic sites has emerged as a major sticking point in permitting reform negotiations.
Lee, a Utah Republican, is looking to overhaul the National Historic Preservation Act, created during the post-World War II development boom, arguing it has become a bottleneck to energy project development on federal lands, particularly out West.
But Lee’s effort is dividing Democrats, some of whom are wary of taking on a law that is important to tribes and the preservation community. The dispute could threaten a goal of making progress on a permitting deal before the August recess.
“We ought to protect the places that show where we came from and who we are. But over the years, a narrow procedural safeguard has evolved into a sprawling, unpredictable process that now delays some of the very projects our country needs to build and maintain,” Lee said during a hearing last year.
Spokesperson Jordan Roberts added, “The National Historic Preservation Act has increasingly been used to stall projects indefinitely rather than to preserve sites of genuine historic value.”
Whether Lee can help land a compromise with his negotiating partner, ranking member Martin Heinrich (D-N.M.), is shaping up to be a test for the first-time committee chair and conservative firebrand who has never brokered a major bipartisan legislative bargain.
Lee and Heinrich are new to their roles and have starkly different political styles, which has led to them tussling during committee hearings and on social media. Both senators say they are negotiating in good faith.
“There are some examples where it [NHPA] has been very challenging [for energy project developers], and so it’s like, how do you find that balance of where you preserve the intent, but make things more predictable and efficient?” Heinrich told POLITICO.
Some Democrats are beginning to view NHPA in a similar vein to another better-known procedural law, the National Environmental Policy Act, that is increasingly blamed for stalling projects — including solar, wind and transmission.
“It is definitely a legitimate thing to look at,” said a former Hill staffer granted anonymity to discuss sensitive matters. “There are legitimate constituencies that have legitimate values around their historic resources that one has to consider. But as far as, is NHPA posing a problem for the development of energy sources that Democrats care about? Absolutely. That’s beyond dispute, and the problem is meaningful.”
Other Democrats, like House Natural Resources member Teresa Leger Fernández of New Mexico, are more skeptical. “Democrats are interested in making these processes work better and quicker, but Republicans try to use the delays that are too long to try to wipe out the underlying law,” she said.
“We want to preserve the National Historic Preservation Act. It’s how we preserve places that are valued in terms of who we are as a country look like,” Leger Fernández said, adding the law “doesn’t prevent development” but requires “conversation and communication before you build.”
Reforming the historic preservation law has not been central to the permitting reform talks — at least not when compared to modifying NEPA, the Clean Water Act, and the grid siting and approval process.
“I’ve been working very hard to figure out what an acceptable scope of NHPA reform looks like, and it’s not easy. It’s unproven ground,” said Marc Levitt, director of environmental regulatory reform at the pro-development Breakthrough Institute, a research group that focuses on how technology can address environmental problems.
But Lee is taking an aggressive negotiating stance on NHPA, prioritizing imposing limits on lawsuits against projects, according to people familiar with the discussions granted anonymity to speak candidly. Litigation limits are also on the table concerning NEPA.
“For the chairman [Lee], he saw NHPA as a gap in the prior proposals,” said an oil and gas industry official close to negotiations. “If we’re living in a world in which we get one bite at this apple to actually implement comprehensive reform, then this is a worthwhile pursuit, given the impact it would have. From his legal background, he has a level of comfort and understanding on how litigation works through the system, particularly on impacting project development.”
‘Specter of litigation’
While NHPA is significantly less litigated compared to NEPA, experts and energy industry officials say moves to reduce legal challenges would have a major impact.
“NHPA wasn’t the biggest challenge to any of the projects I personally dealt with, but in the same way that if you have a person with five diseases, it sucks to have a sixth one added,” said Ben Schifman, a senior technology fellow at the think tank Institute for Progress who worked as a trial attorney for the Justice Department’s Environment and Natural Resources Division, where he litigated challenges to infrastructure projects.
“The focus of Chairman Lee on limiting judicial remedies is very effective for his goals of just limiting the effects of this law, because ultimately it will,” Schifman added.
“A specter of litigation hangs over these NHPA proceedings, and it shapes both the types of projects that end up being proposed and the mitigations that the parties agree to.”
But many Democrats view reforming the law as an effort to limit the participation of tribes. Progressives in particular have been working to give Indian Country more of a say in development.
“There’s a whole infrastructure around the law that’s incredibly complicated,” said an executive at an environmental group close to the permitting negotiations. “It’s the historic preservation crowd, it’s Indigenous people, it touches everything, and so folks are beginning to see how many stakeholders are actually involved in making significant changes.”
The person, granted anonymity to speak freely, added, “Democrats are going to want to make sure folks, especially on the front end, aren’t losing their ability to participate. Any shrinking of that is gonna be hard for Democrats to fully accept.”
How it works
Section 106, the law’s core compliance process, requires federal agencies take into account how projects they fund, permit or carry out affect historic and cultural resources.
The reviews are often straightforward. According to a 2010 National Trust for Historic Preservation report, of the 114,000 eligibility actions reviewed annually under Section 106, roughly 85 percent resulted in a finding of “no historic properties affected,” 13 percent resulted in “no adverse effect,” and 2 percent had effects and were resolved through a memorandum of agreement.
But delays can arise at any stage, say supporters of reform, particularly for large-scale infrastructure projects, including the long-delayed SunZia transmission line that Heinrich has championed to supply Californians with wind power generated in New Mexico. The line is subject to ongoing litigation with tribes, who argue federal regulators failed to properly consult them over its impact on tribal cultural sites.
“One of the most egregious examples of NHPA litigation in recent memory is legal action that halted construction of the SunZia transmission line nearly a decade after the permit was initially issued. Chairman Lee is focused on ensuring that the law protects legitimate historic sites without allowing disputes to become a perpetual obstacle to projects that have already undergone years of review,” said Lee spokesperson Roberts.
Disputes often arise over how broadly to define the area of potential effects to determine which properties must be surveyed and which tribes or groups must be consulted. That area is often larger for clean energy projects that are above ground because they have extensive visual impacts, compared to an underground mine or oil well.
“A wind farm and a transmission line have a bigger NHPA challenge than a pipeline and a gas well,” said Schifman, who recommended lawmakers narrow how viewshed impacts are weighed.
Another issue for developers, reform advocates say, is the flexible and broad criteria for inclusion on the National Register of Historic Places. In a high-profile example, Cape Wind, an ambitious proposed offshore wind project, was canceled in 2017 after more than a decade of regulatory hurdles — including with NHPA.
The National Park Service ruled the entire Nantucket Sound was eligible to be listed on the register because of its cultural significance to tribes, and regulators concluded the wind farm would cause adverse visual impacts.
The register contains more than 100,000 listings, but millions of properties are potentially eligible, including virtually any property over 50 years old. In addition, cultural or historic resources identified late can force the process to restart.
‘Easier to fix NEPA’
When a project crosses land managed by different agencies, each agency may define the potentially affected area differently, adding delays. If an adverse effect is found, there can be open-ended negotiations over how to mitigate harm to a historic property, with no deadline to compel resolution, leading reform proponents to recommend time limits.
“It’s easier to fix NEPA than it is to fix NHPA, which sounds crazy, because it’s pretty hard to fix NEPA, but the underlying challenge of the National Historic Preservation Act is that the system creates a world where every 106 review is done differently, and that makes it very difficult for developers to navigate this, and it really does touch almost every project,” said a former Republican congressional aide involved in permitting negotiations.
Another challenge is underfunded state and tribal historic preservation officers — SHPOs and THPOs — who play influential roles under the law. Outdated state and tribal record systems also slow consultations.
“Sometimes it can be very complicated with our permits,” Sen. Lisa Murkowski (R-Alaska), an Energy and Natural Resources member and former chair, told POLITICO, adding that she is supportive of pursuing NHPA reforms in a permitting deal.
“We see that in Alaska, where we’ve cleared everything else, and then we’ve got the SHPO. It’s like dealing with a whole new entity, which is very frustrating,” said Murkowski.
Eric Beightel, federal strategy director at consulting firm Environmental Science Associates who led the Biden administration’s Federal Permitting Steering Council, said the law is “in need of some modernization.”
“A big part of the challenge in moving projects through the process is the extremely limited funding that goes to the SHPOs and THPOs offices,” he said in a text message. “There are some questions about the area of potential effect (the study area) and how much it should consider indirect effects — not unlike NEPA.”
An electricity industry advocate said they are urging negotiators to make NHPA “clearer” without “skirting historic review” and has offered proposed language to clarify the scope of effects that agencies must consider in reviews. That person spoke with POLITICO on the condition of anonymity.
Sen. John Hickenlooper (D-Colo.), a moderate who has long been active in permitting discussions, said he’s hopeful about striking a deal on NHPA within the broader deal, even though it’s a relatively new topic in negotiations.
“There’s always room for compromise, but it makes life more complicated, there’s no question,” Hickenlooper added. “We’ve spent so much time getting to where we are. Sometimes it turns out to be too much squeeze for the juice.”
